Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1498/2019 ..1.. Suit No.303/2014
CNR No.MHCC0184052019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1498 OF 2019
IN
SUIT NO.303 OF 2014
Mr. Popatlal Babulalji Sanghvi .. Plaintiff
Versus
Shree Laxmi Vijay Printing Press .. Defendants
Ms. Sneha Pokle, advocate for plaintiff
Mr. V.J. Mehta, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 30th August, 2019
ORAL ORDER
Chamber summons is taken out by defendants for permission to
amend the written statement in terms of schedule annexed to it.
2. It is the contention of defendants that plaintiff filed present suit
against them for decree of declaration that defendants are rank
trespassers in respect of suit premises, which is in fact false suit. Even
he filed another suit bearing No.3271 of 2013 seeking mandatory
injunction in respect of the premises as described in that suit (in short
'companion suit') which is nothing but a part and parcel of the suit
premises in present suit. In said companion suit, defendants have filed
written statement on 11.10.2013. In present suit they filed their written
statement on 05.07.2014.
3. It is further contended that due to harassment caused by
plaintiff by filing diverse suits and adopting various interlocutory
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proceedings therein, defendants were advised to file independent suit
for declaration of tenancy right in respect of the premises forming
subject matter of present suit and companion suit having jurisdiction
under the provisions of Maharashtra Rent Control Act, 1999. It is
further contended that in written statement filed in both suits, defence
of defendants revolved mainly around consent term dated 09.08.1978
filed between heirs and legal representatives of deceased Yograj
Narottamdas @ Kantilal Narottamdas under whom present plaintiff
claims his right, title and interest in respect of the premises which is
subject matter of both suits at one hand and deceased N.D. Japee on
other hand under whom defendants claim their title in R.A.E. suit
No.4608 of 1971 filed before Small Causes Court.
4. It is further contended that at the time of filing written
statement in both suits, defendants were in possession of certified copy
of said consent terms and no other papers or record were available with
them to substantiate their defence on merits. However, as soon as
when defendants were advised to file independent suit for declaration
of tenancy right in respect of the premises which is subject matter of
present suit and companion suit; they were also advised to procure
certified copies of entire records and proceedings from concerned courts
where the litigation ensued in past between predecessorintitle of both
parties to the present suit. In search of the documents, defendants came
across several material documents and evidence which would expose
the falsity in claim and contention of plaintiff.
5. It is further contended that following legal advise received by
them, widow and daughter of deceased Bharatkumar Japee who was
son of deceased N.D. Japee, already filed suit bearing RAD Suit
No.1176 of 2016 before Small Causes Court for declaration of tenancy
right in respect of suit premises which is subject matter of present suit
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as well as companion suit. In suit before Small Causes Court,
defendants have produced all material evidence and record procured by
them subsequent to filing of written statement in present suit as well
companion suit.
6. It is further contended that documents/evidence upon which
reliance has been placed by defendants were not available with them
therefore they could not be placed before this Court along with
appropriate pleadings while filing written statement in present suit as
well as companion suit. Amendment proposed to be carried out touches
the root of the matter. So, it is necessary for defendants to incorporate
the same in written statement filed in present suit and companion suit
as same is absolutely necessary to determine the real controversy.
Accordingly, defendants made prayer in above terms.
7. Plaintiff filed its reply on the chamber summons itself taking
objection to the same. It is contended that chamber summons is taken
out to cause delay in the effective hearing of present suit which is at the
stage of cross examination. It is also contended that in view of the
rulings of the Hon'ble High Court reported in 2019 (3) Bom.C.R. 306,
present chamber summons is liable to be dismissed with costs.
Accordingly, prayed for dismissal of chamber summons.
8. Perused chamber summons, affidavit in support of it, reply of
plaintiff and pleadings of the parties and documents filed on record.
Heard respective counsel for parties. They advanced their arguments in
accordance with respective contention of parties.
Learned advocate for defendant has placed reliance upon
authorities in cases of Baldev Singh and Ors Vs. Manohar Singh and
Ors. AIR 2006 SC 2832 and Bharat Petroleum Corporation Ltd Vs.
Precious Finance Investment Pvt. Ltd., 2006(6) Bom. C.R. 510 in
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support of his submission. On the other hand, learned advocate for
plaintiff has placed reliance upon authority in the case of Liquidator
Vs. Jeejaee Estate and Ors., 2019(3) Bom C.R. 306 in support of her
submission.
9. In the case of Baldev Singh cited supra considering the facts of
said case that parties have yet to file their documentary evidence in the
suit, it was held that trial has yet not commenced.
In the case of Liquidator cited supra his Lordship has referred
authorities of Hon'ble Apex Court in cases of Mohinderkumar Mehra
Vs. Roop Rani Mehra and others, 2018 (2) S.C.C. 132 and Vidyabai
Vs. Padmalatha (2009) 2 S.C.C. 409. In the case of Mohinderkumar
Mehra it is observed that, “After issues are framed and case is fixed for hearing
and party having right to begin is to produce his evidence, the trial of suit commences.”
In the case of Vidyabai it has been held that, “filing of an affidavit in lieu of
examination in chief of witnesses amounts to commencement of proceedings.”
10. In present case issues are framed on 09.08.2017, plaintiff has
filed his affidavit in lieu of examinationinchief on 28.03.2018 and
after deciding admissibility of documents matter was posted for
recording cross examination through Court Commissioner.
Commissioner has submitted report vide Exh.6 that advocate for
defendant declined to cross examine PW1. Thereafter, defendants filed
an application seeking permission to crossexamine PW1 which was
allowed and defendants have been permitted to conduct cross
examination within a period of one month. Thereafter, on 08.08.2019,
defendants have taken out present chamber summons. From the facts as
referred above, it is clear that trial has commenced. Relying on
authorities in the cases of Mohinder Kumar and Vidyabai, in the facts
of matter with due respect of I am of the view that authority in the case
of Baldev Singh and others cited supra by defendant is not of
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assistance to them on the point of commencement of trial. In the case
of Bharat Petroleum Corporation Limited cited supra principles/
guidelines while considering amendment application have been laid
down. Keeping in view the same, now I consider present chamber
summons.
11. Defendants assigned reason that documents/material/evidences
upon which reliance have been placed by them while filing suit for
tenancy declaration were not available with and/or not accessible to
them and so they could not be placed before this court along with
appropriate pleadings while filing the written statement in present suit.
It is also clear that suit for tenancy declaration in relation to suit
premises was filed subsequent to filing of written statement in present
suit. Defendants want to incorporate pleadings about aforesaid
subsequent event as per proposed para 15G as contained in schedule
annexed to chamber summons. In my view, said suit for tenancy
declaration relate to the suit premises of which possession is sought in
present suit and in present suit it is prayed to declare that defendants
are tress passer in relation to suit premises. Therefore, pleadings in that
regard is necessary for just decision of controversy in the suit.
12. So far as contention raised in proposed para 15A is concerned;
defendants have already averred about the filing of suit No.3271 of
2013 by the plaintiff against them in their written statement and also
about the filing of written statement in said suit by them. So, there is no
need to reiterate said fact. By proposed para 15B defendants want to
incorporate contention in relation to their reliance upon their written
statement dated 11.10.2013. When they have already averred about the
same in their written statement then they can rely upon the same. There
is no need for them to make specific pleading in that regard. By
proposed paras 15C & 15D defendants want to incorporate contention
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to the effect that they have filed written statement on the basis of
documents available with them at the relevant time. It cannot be said to
be material proposition of fact construing as pleading. At the best it is
only explanation as to why averments about materials made in tenancy
declaration suit is not made in written statement of present suit. In my
view, those amendments are not necessary for deciding controversy
between the parties. So far as contentions as made in proposed paras
15E & 15F are concerned; same speak about advise to them to file suit
for declaration of tenancy is concerned, it is not necessary to be
incorporated in written statement particularly when I have permitted to
incorporate the contention about the filing of suit for declaration of
tenancy rights in Small Causes Court as per contentions raised in
proposed para 15G and further same do not come within the purview
of pleadings. Those proposed paras 15E and 15F also speak about
consent terms in RAE Suit No.4608 of 1971 and history of litigation and
about death of proprietor of defendant's firm namely N.D. Japee and
thereafter his son Bharatkumar Japee which are already pleaded by
defendants in their written statement. Therefore, there is no need to
incorporate the same facts and it will only amount to repetition of facts.
13. When I am inclined to permit defendants to incorporate
pleadings as per proposed para 15G then contentions in terms of
proposed paras 15H to 15J are not necessary to be incorporated for
the purpose of deciding controversy between the parties and more so, it
would amount to only repetition of facts. Further, staying of present
suit in view of filing subsequent suit by the defendants in Small Causes
Court cannot be termed to be part of pleadings. More so, there is vague
contention about documents and material produced before Small
Causes Court in tenancy declaration suit. Therefore, also I am not
inclined to allow to incorporate contentions in that respect in written
statement.
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14. I would like to mention that no doubt defendants have taken out
chamber summons after commencement of trial but amendment which
I am inclined to allow relate to subsequent event, touches the roots of
matter and necessary for just decision of controversy between the
parties. Further plaintiff is aware about the tenancy declaration
proceedings and his evidence in present suit is yet not over. In light of
discussion made above and keeping in view principles laid down in
Bharat Petroleum Corporation Limited cited supra, chamber
summons deserves to be partly allowed. However, considering the fact
that defendants have taken out chamber summons when matter was
posted for crossexamination of PW1 certain costs is required to be
imposed upon them. Hence, pass following order:
ORDER
1. Chamber Summons No.1498 of 2019 is partly allowed subject to
payment of costs of Rs.2000/ to plaintiff within period of one week
from the date of this order.
Defendants are at liberty to deposit the costs payable to plaintiff
in the Court.
2. On payment of costs, defendants are permitted to amend written
statement in terms of proposed para 15G of schedule annexed to
chamber summons by adding the same by changing its nomenclature as
para 15A instead of para 15G.
3. Copy of amended written statement be served upon plaintiff.
4. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 30.08.2019 Gr. Bombay
Typed on : 30.08.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31.08.2019, 3.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
30.08.2019
JUDGMENT/ORDER signed by P.O.
on
31.08.2019
JUDGMENT/ORDER uploaded on 31.08.2019
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