Final Order 1

Order Details: Other
Pdf Text: 7.11.2019
SU 563/14
Ch/s 1595/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Suhas Deokar for plaintiff present.
Adv. Miss Bhargavi for defendant no.2 present.
Affidavit of service filed by adv. for plaintiff t.o.r.
None appeared on behalf of defendant no 1.
KB
LO
ORDER PASSED BELOW CHAMBER SUMMONS NO.1595 OF 2019
Perused chamber summons, affidavit in support of it and reply of defendant No.2. Heard
respective counsel for parties. Defendant No.1 did not file any reply. Matter is already proceeded
exparte against rest of the defendants.
Chamber summons is taken out by plaintiffs to incorporate subsequent event in relation to allotment
of alternate accommodation to defendant No.2 by defendant No.1.
It is contended that there was no specific pleadings in plaint about handing over possession of
permanent alternate accommodation to defendant No.2 as said fact occurred after filing of suit. It is
contended that amendment is necessary for the purpose of determining real question in controversy
between the parties. As there is no specific pleadings to that effect hence issue No.1 was not framed in
proper manner. In light of these contentions plaintiffs have prayed for allowing chamber summons.
Defendant No.2 opposed chamber summons on the count that it is taken out at belated stage and
when trial has already commenced and therefore, chamber summons is bad in law and also barred by
law of limitation. It is contended that alternate accommodation was handed over by defendant No.1 to
defendant No.2 in May, 2014 and said fact is also observed in order dated 18.09.2014. So since
September, 2014 plaintiffs are aware about the said fact. However, they failed to give any reason for
making application at belated stage.
It is not in dispute that present chamber summons is taken out when present matter is posted for
cross-examination of PW-1. It is to be noted that plaintiffs have filed an application for recasting of
issue vide Exh.13. Plaintiffs have not pressed said application so it was disposed off with liberty to
them to take appropriate proceedings. While not pressing said application plaintiffs have preserved
their right to make an application for amendment of pleadings. It is also not in dispute that fact of
handing over of possession of alternate accommodation is mentioned in order dated 18.09.2014 passed
in Notice of Motion No.2832 of 2014. In this background I consider present chamber summons.
It is pertinent to note that plaintiffs have also prayed in the suit that defendant No.2, its
servants, agents and persons working under them be restrained by an order of permanent injunction
from transferring, alienating, selling or creating third party interest in alternate accommodation. But
they have not raised contest about handing over of possession in the plaint. So issue was not raised in
that regard. In my view in order to decide the controversy between parties proposed amendment is just
and necessary particularly considering the prayer made by the plaintiffs as pointed above. No doubt,
delay has been caused in taking out present chamber summons but cross-examination of PW-1 is yet
not commenced. In view of that fact no prejudiced will be caused to defendant No.2 if proposed
amendment is allowed subject to imposing certain costs upon the plaintiffs. Hence, pass following
order:
ORDER
1. Chamber Summons No.1595 of 2019 is allowed and made absolute in terms of prayer clauses (a)
& (b) subject to payment of costs of Rs.2000/- (Rupees Two Thousand only) to defendant No.2 within
period of two weeks from the date of this order.
Plaintiffs are at liberty to deposit costs payable to defendant no.2 in the Court.
2. After payment of costs, plaintiffs are permitted to carry out amendment as per schedule annexed to
chamber summons within period of two weeks.
3. Accordingly, chamber summons is disposed off.
Adjourned for direction to 07.12.2019
Judge
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