Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No.1482/19 in
L.C. Suit No. 1083/2013.
MHCC010083162019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1482 OF 2019.
IN
L.C. SUIT NO. 1083 OF 2013.
Vijay Omkarlal Jain. ……..…...…...................... …. PLAINTIFF.
V/s.
M.C.G.M. ….....……………………………….….. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 30th June, 2022.
APPEARANCES :
Ms Vaibhavi Pawar, Ld. Advocate for the Plaintiff.
Mrs. Jyoti V. Mhatre, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Chamber Summons (for the
brevity ‘Ch/s’.) U/O. VI Rule 17 of the Civil Procedure Code of 1908, for
amendment in the body of the plaint. Perused the Ch/s., accompanying
affidavit of his C.A.- Mr. Gautam Jain, and say of the defendant. Heard
both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the proposed amendment is
necessary for deciding the real question
in controversy between the parties ?…. .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
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.2. CH/S No.1482/19 in
L.C. Suit No. 1083/2013.
REASONS FOR THE FINDINGS
AS TO POINT NO.1 :
03. By filing this Ch/s., the plaintiff's only anxiety is to bring on
record that at the time of auction, his father handed over the relevant
documents, in respect of this suit premises, to the auction purchaser i.e.
Nilkanth Developer. Further, during pendency of this suit, when he was
searching for the old documents, he found the vital document in respect
of the suit premises, in the month of June, 2019 only. In view of the said
document, it seems that on 27.11.1981, the defendant issued the notice,
in the name of his father, for keeping lubricants, engine oils, etc. in the
mezzanine floor of shed Nos. 3 and 4 at Hanuman Mill Compound, Agre
Road, Hariyali Village, Mumbai-78. The said document is vital in respect
of the suit premises and therefore, the plaintiff wanted to incorporate it
in the plaint. The defendant objected this Ch/s. on the ground that he
issued the suit notice for unauthorized construction of vertical extension
of ground floor construction of BM Wall. As such, the alleged document,
which relates to mezzanine floor of shed Nos. 3 and 4, is not concerned
with the suit.
04. Having considered the rival stands, here, it is worth notable
that by filing this suit, initially, the plaintiff challenged the notice of dtd.
28.12.2012 and consequential Order dtd. 21.06.2013 as bad in law. He
could also prayed for the other ancillary reliefs. Now, in this Ch/s., he
submitted that during pendency of this suit he could find the said notice
of dtd. 27.11.1981 and it relates to this matter. The said notice was
issued by the defendant about mezzanine floor structure on shed Nos. 3
and 4, on given address. Be that as it may, the fact remains that though,
this suit is of the year 2013, still, it is at the initial stage, where the trial
is to commence. Here, it wouldn't be out of place to mention that while
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.3. CH/S No.1482/19 in
L.C. Suit No. 1083/2013.
considering the Ch/s., it is not expected to scan its merits. That apart, it
would be for the plaintiff to substantiate this proposed amendment on
trial. In addition, the proposed amendment is formal in nature. More so,
it would not cause any prejudice even to the defendant. Simply because,
he would get the chance to rebut the same on trial. It would also assist
this Court to decide the suit issues effectively. Hence, I answered point
No.1 in the affirmative and in answer to point No. 2, I pass this Order :
-: O R D E R :-
(i). Chamber Summons No. 1482/2019 is made
absolute in terms of prayer Clause (a) and (b) only.
(ii). The plaintiff is directed to carry out the proposed
amendment in the body of the plaint, positively
within two weeks from the passing of this Order.
(iii). Costs to follow the event.
(iv). Chamber Summons No. 1482/2019, accordingly,
stands disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 30.06.2022. City Civil Court, Mumbai.
Dictated on : 30.06.2022.
Transcribed on : 30.06.2022.
Signed on : 30.06.2022.
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.4. CH/S No.1482/19 in
L.C. Suit No. 1083/2013.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01.07.2022. at 11.30 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 30.06.2022.
Judgment/Order signed by P.O. on 30.06.2022.
Judgment/Order uploaded on 30.06.2022.
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