Final Order 1

Order Details: Chamber summons
Pdf Text: C/S 1078/18 in Su 536/80 1 Date : 23.7.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No.MHCC010000491980
CHAMBER SUMMONS NO.1078/2018
IN
SUIT NO.536/1980
Raja Dhanraj Narsingirji ]... Plaintiff
V/s.
T. N. Subbarao ]… Defendant
Adv. Revankar for plaintiff.
Adv. Giriraj for defendant.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 23.7.2018
ORDER
(Dictated in open court)
By this Chamber summons, the plaintiffs are seeking
permission to amend the plaint by adding two paragraphs and three
prayers. The defendants have filed their reply.
2. Heard Ld. Counsel for the parties at length. Perused the record.
3. It is urged by the Ld. Counsel for plaintiffs that by order dated
29.1.2018 passed in writ petition no.12286/2017, the Hon'ble High
Court has granted liberty to the plaintiffs to file application for
amendment of the plaint as and when the rent receipts or any other
documents are produced by the defendants before Trial Court. He
therefore, submits that in view of the fact that the defendants have filed
-- 1 of 5 --
C/S 1078/18 in Su 536/80 2 Date : 23.7.2018
rent receipts and letters with their affidavit evidence, it has become
necessary for the parties to amend the plaint and challenge the said
letter and rent receipts.
4. As against this, the Ld. Counsel for defendants has urged that
there is no need for this amendment and it is not necessary for deciding
the real controversy between the parties in this suit. He urged that
plaintiff may file separate suit for said reliefs.
5. Both the parties have placed reliance on several rulings in support
of their respective case. The record shows that earlier the plaintiffs had
filed chamber summons no.1505/2017 for permission to amend the
plaint. By said amendment, the plaintiffs were seeking declaration that
the rent receipts and other documents filed by the defendants before the
Small Causes Court in Suit no.953/2016 were forged and fabricated. By
order dated 12.10.2017, this Court dismissed the said chamber summons
for the reasons mentioned in the said order. The plaintiffs challenged
the said order in writ petition no. 12286/2017. On 29.1.2018, the said
writ petition was withdrawn by the plaintiffs with liberty to file
application for amendment of the plaint, as and when the documents are
produced by the defendants. The defendants have now filed three rent
receipts and two letters in their compilation of documents along with
evidence. As per the liberty granted by the Hon'ble High Court, the
plaintiffs have filed the present chamber summons seeking amendment of
plaint.
6. In support of his prayer for amendment of plaint, the learned
counsel for plaintiffs is relying heavily on the “liberty” granted by
Hon'ble High Court on 29.1.2018. However, the liberty was given only to
move for amendment of plaint when contingency arises. Once the
-- 2 of 5 --
C/S 1078/18 in Su 536/80 3 Date : 23.7.2018
chamber summons is filed by plaintiffs for amendment of plaint, this
Court has to decide the same on merits in accordance with law.
7. The main prayer in the suit is for declaration that the defendants are
trespassers in respect of the terrace which is adjoining to their block.
There is dispute about the tenancy of “Block”. The defendants are
admittedly the tenants of the block. It is the case of plaintiff that the
defendants have encroached upon the suit terrace and the said terrace
was never let out to the defendants by the plaintiffs. By filing the rent
receipts and letters, the defendants are attempting to show that the terrace
was also part of the tenanted premises. Hence, the submission of the Ld.
Counsel for defendants that the proposed amendment has no connection
with the subject matter of suit and it is not at all necessary for
adjudicating the real controversy in the suit, cannot be accepted in
entirety. The apprehension of Ld. Counsel for defendants that the
finding given in this suit on the rent receipts will affect the suit filed by
him before the Small Causes Court is not justified. By filing the said
documents along with the evidence and placing reliance on them, the
defendants have invited adjudication on the said documents by this Court
and therefore, they cannot now contend that no finding can be given on
said documents. In any case, the subject matter of present suit is
restricted to the terrace adjoining to the flat and any finding given in this
suit on the said documents will be restricted to the subject matter of this
suit.
8. As far as the proposed paragraphs no.13a and 13b are concerned,
there is no dispute that there is no pleading in the written statement
regarding the aforesaid documents. However, as discussed above, the
defendants have filed said documents with their evidence. Hence, I find
that the plaintiffs are entitled to plead about said documents and add the
-- 3 of 5 --
C/S 1078/18 in Su 536/80 4 Date : 23.7.2018
proposed paragraphs, except a portion of paragraph 13(b) which is
repetition of case of plaintiffs in their original plaint.
9. As regards the proposed prayers, the prayer a(7) cannot be
granted since it is a prayer similar to the original prayer made in the
suit. So far as the proposed prayer clauses a(5) and a(6) are concerned,
the plaintiffs are seeking declaration that the rent receipts and letters filed
by the defendants are forged and fabricated documents. I find that there is
no necessity to add these prayers in view of the main prayer in the suit.
If the plaintiffs are able to prove that the said documents are forged and
fabricated in accordance with law, such finding can be given by this
Court while deciding the main prayer of plaintiff. The plaintiffs shall also
get opportunity to crossexamine the witness of defendants on the said
documents and they can demolish the case of the defendants regarding
the rent receipts and letters during crossexamination. Hence there is no
need for said amendment.
10. Perused the rulings cited by both the sides. I find that the fact
situation in those cases is different from the present case and they
cannot be applied to the present case. There is no straitjacket formula to
consider prayer for amendment of plaint and each case has to be decided
on its own merits.
11. It is necessary to note that the main suit is of the year 1980
and has to be decided expeditiously on priority basis. Considering
the original pleadings and prayers of both parties, their submissions,
and in the facts and circumstances of the case, I find that the chamber
summons has to be partly allowed. Hence, following order:
ORDER
1. The chamber summons no.1078/2018 is partly allowed.
-- 4 of 5 --
C/S 1078/18 in Su 536/80 5 Date : 23.7.2018
2. The plaintiffs shall carry out the amendment as per the portion
marked in schedule of the chamber summons.
3. The proposed amendment to the extent of part of paragraph
no.13(b) and three prayers is rejected.
4. Necessary amendment be carried out in two weeks.
5. Plaintiff is directed to file the amended copy of plaint in the Court
with copy to the other side by next date.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 23.07.2018 Gr. Bombay.
Dictated on : 23.07.2018
Typed on : 24.07.2018
Signed on : 24.07.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
25.7.2018 at 5.45 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
23.07.2018
JUDGMENT/ORDER signed by
P.O. on
24.07.2018
JUDGMENT/ORDER uploaded
on
25.07.2018
-- 5 of 5 --