Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No.1517/2019 in
L.C. Suit No.415/2010.
MHCC010085652019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1517 OF 2019.
IN
L.C. SUIT NO. 415 OF 2010.
Ekatha Welfare Society…...…...................……. …. PLAINTIFF.
V/s.
Kurla Telgu Baptist Church & the Others.….….. …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 06th May, 2022.
APPEARANCES :
Adv. Balkrishna Menon, Ld. Advocate for the Plaintiff.
Mr. S.C. Khandagale, Ld. Advocate for Defendant Nos. 2 and 3.
*****
01. The plaintiff has taken out this Chamber Summons (for the
sake of brevity ‘Ch/s’.) under Order VI R. 17 and under Order XIV R. 5
of the Civil Procedure Code, 1908, for amendment in the plaint and for
framing of additional issues. Perused the Ch/s., accompanying affidavit
of one Mr. Niranjan, President of the plaintiff’s Society, and say of the
defendants. Heard the learned advocates for the plaintiff and defendant
Nos. 2 and 3. Defendant No.1 remained absent for hearing on this Ch/s.
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.
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.2. CH/S No.1517/2019 in
L.C. Suit No.415/2010.
(ii). Whether additional issues are required
to be framed? ………………………….. …. Yes.
(iii). What Order ? .............…....................... …. As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO.1 AND 2. :
03. By filing this Ch/s., the plaintiff came with the specific case
that in respect of the plaint averments, some issues are to be framed as
to shifting of increased church activities from the first floor of the suit
premises and that of church premises to the earlier premises. Further, as
regards direction to the defendants from removing 'T-angle', connecting
both the Chawls. Simultaneously, the plaintiff prayed to remove words
‘pending the hearing and disposal of the suit’ from the prayer clause of
the suit. Defendant No. 1 strongly objected this Ch/s. on the count that
the plaintiff is delaying the suit and there is no need to frame additional
issues, as alleged. The suit is old and therefore, the plaintiff has lost his
chance to prove his pleadings. As such, the Ch/s. is liable to be rejected.
If it is allowed, it would cause great hardship to defendant No. 1. At the
same time, defendant Nos. 2 and 3 denied this Ch/s. on the ground that
the Notice of Motion cannot be heard along-with the suit as is prayed by
the plaintiff.
04. Having considered the rival submissions, here, it is worth to
note that by filing this suit, the plaintiff prayed for a relief of declaration
that he is entitled to pay only Municipal Taxes and defendant No. 1 has
no right to demand any other payments from him. Simultaneously, that
time, as per prayer clause (f), he asked for directing these defendants to
remove the alleged 'T-angel' (iron rod), connecting both the structures
of the Chawl, although, during pendency of hearing and disposal of this
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.3. CH/S No.1517/2019 in
L.C. Suit No.415/2010.
suit. It further seems that he prayed the substantial reliefs 'pending the
hearing and final disposal of the suit'. Having considered the pleadings,
in all 20 issues were framed by this Court 17.11.2018 vide Exhibit 15.
However, still, the issues, as are being prayed to be framed additionally,
were not framed. Most probably, because the said reliefs were claimed
in temporary form'. As such, now, the plaintiff is praying for 'deletion' of
the wordings 'pending hearing and final disposal of the suit' from prayer
clause. As regards this deletion, it is to be noted that the suit is at initial
stage and the trial is yet to commence. Hence, I feel that if the proposed
amendment is allowed, no harm would be caused to the defendants. In
addition, the plaint averments may be considered in its proper prospect.
And, after this amendment, there is no hurdle to frame the required set
of issues. However, there is no reason to tag the Notice of Motion with
the suit, as alleged. Needless to say, the reliefs asked in the Motion are
different as are compared to reliefs claimed on trial and therefore, while
deciding the suit, the same can't be taken into consideration. Hence, the
plaintiff is called upon to take appropriate steps, as regards this Motion.
05. Continuing my discussions, at this juncture, it is to be noted
that this suit is filed in the year 2010 and it is aging more than 10 years.
Long back, the issues are framed and the matter is posted for evidence.
That apart, taking into account the nature of reliefs claimed, surely, the
plaintiff could have preferred this Ch/s. much earlier. By doing so, the
delay in the trial could have been curtailed. On this backdrop, this Court
is of the opinion that while granting reliefs of amendment and framing
of additional issues, of this Ch/s., the rules of natural justice do require
imposition of adequate costs upon the plaintiff to have delayed the trial.
Hence, I answered point Nos. 1 and 2 in the affirmative and to answer
point No. 3, I pass the following Order :
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.4. CH/S No.1517/2019 in
L.C. Suit No.415/2010.
-: O R D E R :-
(i). Chamber Summons No.1517/2019 is made absolute
in terms of prayer Clause (a) and (c) only, subject to
costs of Rs. 2,500/- to defendant No. 1 and also to
deposit the sum of Rs. 2,500/-, as costs, with the
concerned Office of defendant Nos. 2 and 3,positively
till the next date. The other reliefs of this Chamber
Summons stand rejected.
(ii). Chamber Summons No.1517/2019, accordingly,
stands disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 06.05.2022. City Civil Court, Mumbai.
Dictated on : 06.05.2022.
Transcribed on : 06.05.2022.
Signed on : 06.05.2022.
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.5. CH/S No.1517/2019 in
L.C. Suit No.415/2010.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06.05.2022. at 5.30 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 06.05.2022.
Judgment/Order signed by P.O. on 06.05.2022.
Judgment/Order uploaded on 06.05.2022.
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