Interim Order 1

Order Details: Chamber summons
Pdf Text: Draft Chamber Summons in Suit no. 2363/19 1
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT CHAMBER SUMMONS
IN
LONG CAUSE SUIT NO. 2363 OF 2019
The Kurla Dawoodi Bohra Masjid and Kabristan Trust
]....Applicant
(Original Plaintiff.)
Versus
The Municipal Corporation for
Greater Mumbai ]... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 03rd September, 2019.
Mr. Yadav h/f adv. B.P.Shukla, Advocate for plaintiff.
Ms. Mhatre, Advocate for Defendant/MCGM.
O R D E R
1. Perused. Heard.
2. The plaintiff has sought amendment in the Suit to plead
passing of speaking order by the defendant Corporation and the
grounds to plead nullity thereof. Amendment is sought on the ground
that the speaking order is passed after filing of the suit and thus is a
subsequent event. Consequential amendment is also sought in prayer
clause.
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Draft Chamber Summons in Suit no. 2363/19 2
3. Amendment is opposed by the defendant on the ground
that, the order sought to be challenged is binding upon the plaintiff. The
defendant has followed the due process of law and has passed the
speaking order. The plaintiff is trying to fill up the lacuna. The suit
premises is unauthorised and is danger to the life and property. If the
Chamber Summons is allowed then it will change the nature of the suit.
4. It is admitted fact that the speaking order is passed after
presenting the suit. In view of this, the plaintiff can legitimately be
allowed to bring on record subsequent event of passing of speaking order
as well as the grounds to challenge said speaking order. Consequential
amendment in the relief clause can also be, therefore, allowed.
5. Advocate for defendant submitted that certain grounds
mentioned in paragraph 13(b) of the schedule are in respect of the
factual position which was allegedly existing since prior to filing of the
suit and thus, those are not the subsequent events.
6. The few of the grounds mentioned in para 13(b) of the
Schedule are certainly in respect of the facts which were existing since
prior to filing of the suit. However that itself can not be a ground to
refuse the amendment. The law is settled that at pretrial stage the Court
has to be liberal in allowing the amendments which are necessary for
complete and effective adjudication of the suit. In this case the suit is at
preliminary stage. It is not the case that the facts sought to be brought
on record by amendment are unnecessary and irrelevant. Thus, the
amendment in that regard also needs to be allowed.
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Draft Chamber Summons in Suit no. 2363/19 3
7. Advocate for defendant also disputed the correctness of the
amendment sought. It needs to be mentioned that, the correctness of the
amendment can not be gone into while deciding the application for
amendment. The defendant can certainly dispute the correctness thereof
by filing appropriate Written Statement.
8. Though it is submitted by advocate for defendant that the
nature of suit will change, if the amendment is allowed, it will not be so
as the suit will remain a suit for declaration and injunction. Considering
the facts and circumstances of the case the amendment sought is relevant
and necessary. If it is allowed no prejudice will be caused to the
defendant as the defendant has right to file the Written Statement.
Hence, Chamber Summons needs to be allowed. Consequently I pass
following order
ORDER
1. Draft Chamber Summons is made absolute in terms of prayer
clause (a).
2. Plaintiff shall amend the plaint within two weeks from today.
3. Plaintiff shall serve copy of amended plaint on the defendant and
shall supply typed copy of amended plaint to the Court.
4. Draft Chamber Summons be registered for statistical purpose.
5. Costs in cause.
Sd/
(A.N. MARE)
Judge,
03/09/2019 City Civil Court, Mumbai.
Dictated On : 03.09.2019
Typed on : 03.09.2019
HHJ Signed on : 03.09.2019
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Draft Chamber Summons in Suit no. 2363/19 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
03.09.2019 05.30 p.m. M.S.Padave
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
03.09.2019
JUDGEMENT /ORDER signed by
P.O. on
03.09.2019
JUDGEMENT /ORDER uploaded
on
03.09.2019
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Draft Chamber Summons in Suit no. 2363/19 5
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