Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum no.1104-18 in L.C.SUIT no.1-16
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO. 1104 OF 2018
(CNR no. MHCC010078002018)
IN
L.C. SUIT NO. 1 OF 2016
(CNR no. MHCC010133602015)
M/s. D & H Associates ]..Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai ]... Defendant
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 4th September, 2018.
Mr. Shoaib I. Memon, advocate for plaintiff.
Mr. Choudhari with Ms. Patil, advocate for defendant.
ORDER
1. The plaintiff has taken out this chamber summons seeking
amendment to the plaint. By the proposed amendment, the plaintiff
wishes to add certain averments regarding floors of the suit building on
the basis of the City Survey record, which the plaintiff got in the form of
certified copy of City Survey Extract of the suit property during the
pendency of the suit.
2. The learned counsel for defendant submitted that the
defendant will not file any reply to the chamber summons and just
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2 Ch/sum no.1104-18 in L.C.SUIT no.1-16
make submission on law points. He submitted that in view of the
provisions of Rule (2) of Order VI of the Code of Civil Procedure, the
parties should plead only material facts and not the evidence, and
therefore, the proposed amendment which is only in the form of
evidence can not be allowed.
3. On the other hand, the learned advocate for the plaintiff
submitted that during the pendency of suit, the plaintiff got the material
document, which may throw light on the matter in dispute and
therefore, a mere production of document on record will not suffice the
purpose. For that sake some pleadings are necessary and therefore, the
amendment has been proposed in addition to production of the said
document being part of the annexures to the plaint.
4. Considering rival submissions it is the position of law that
every pleading shall contain statement in concise form of material facts
on which the party relies for his claim or defence, as the case may be,
but not the evidence by which they are be proved. The plaintiff
proposes the amendment in the form of pleadings that after filing the
suit upon inquiring with the office of the Collector, the plaintiff came to
know about City Survey Extract of the suit property. Plaintiff wishes to
plead further, the position of the floors of suit building as depicted in
the said extract and further produce its copy as the annexure to the
plaintiff.
5. The suit is instituted seeking declaration that the notice
dated 31.07.2015 issued under Section 351 of Mumbai Municipal
Corporation Act and the order dated 23.12.2015 passed in furtherance
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3 Ch/sum no.1104-18 in L.C.SUIT no.1-16
of the same are illegal and bad in law. The plaintiff is also seeking
consequential relief of perpetual prohibitory injunction. The suit is
instituted on 29.12.2015. The certified copy of extract of City Survey
appears to have been obtained on 04.02.2016. Thus, the proposed
amendment appears necessary for determination of matter in
controversy. The notice of motion is also pending for hearing. Thus, the
proposed amendment will not change the nature of the suit. If it is
allowed it will not take away any rights of the defendant or cause
prejudice to it. The proposed amendment is in the form of some facts
constituted foundations for leading some evidence and same can
allowed in order to decide the matter in controversy by curtailing
multiplicity of proceedings. Therefore, the following order is passed :
ORDER
1. The Chamber summons no. 1104 of 2018 is made absolute with
direction to carry out the amendment in all respects within a
period of 2 weeks from today that is on or before 18.09.2018
2. The parties to bear their own costs of the Chamber summons.
sd/
(M.S. Deshpande)
AdHoc Judge,
Date : 04.09.2018 City Civil Court, Mumbai.
Dictated on : 04.09.2018
Transcribed on : 04.09.2018
Checked by HHJ on : 04.09.2018
Signed by HHJ on : 04.09.2018
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4 Ch/sum no.1104-18 in L.C.SUIT no.1-16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.09.2018 at 12.10 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
04/09/2018
JUDGMENT/ORDER signed by
P.O. on
04/09/2018
JUDGMENT/ORDER uploaded
on
05/09/2018
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