Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010098302019
CNR NO. MHCC010098302019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1742 OF 2019
IN
S.C. SUIT NO.8582 OF 1993
(HIGH COURT SUIT NO.410 OF 1993)
Smt. Shantibai Ramchand Punjabi ] … Plaintiff
V/s.
Smt. Bimla S. Dua ] ...Defendant
Appearances :
Ld. Adv. Mr. Rohit Pawaskar for plaintiff.
Ld. Adv. Ms. Gayatri Sharma for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 1st August, 2022
ORAL ORDER
1. The present Chamber Summons is taken out by the
defendant for carrying out amendment in written statement.
2. It was submitted by the defendant that the defendant has
filed written statement on 24.09.1997 and denied the contention of
-- 1 of 6 --
2 CHS 1742/2019 in Suit 8582/1993
plaintiff. After the plaintiff filed her affidavit of evidence, the defendant
changed her advocate and when the advocate for defendant was
preparing for crossexamination, the defendant informed her Advocate
about the Agreement dated 08.10.2002 between her and the Society
and the Developer. The said Agreement could not be mentioned in the
written statement earlier. It is necessary to mention about the said
Agreement in the written statement. The delay in taking out Chamber
Summons is not intentional and deliberate. If the Chamber Summons is
not allowed, the defendant will suffer grave harm, loss and injury and
therefore, as the said fact came to the knowledge of defendant
afterwards, the amendement to the said effect be allowed.
3. The plaintiff filed reply and submitted that the trial has
been commenced. The defendant was having knowledge regarding the
said agreement dated 08.10.2002. The defendant had not filed the
Chamber Summons earlier and therefore, there is huge delay of 17
years and hence, the Chamber Summons be dismissed.
4. The defendant filed rejoinder and denied the reply of
plaintiff.
5. Heard Learned Advocates for both the sides at length. The
Learned Advocate for defendant relied upon the State Bank of
Hyderabad Vs. Town Municipal Council reported in Civil Appeal
No.5294 of 2006. The plaintiff had filed the present suit for the
declaration that the Agreement of Sale between the plaintiff and the
Society is valid and subsisting. The defendant filed her written
statement and denied the contention of plaintiff. Admittedly, the
written statement filed by the defendant does not mention regarding
-- 2 of 6 --
3 CHS 1742/2019 in Suit 8582/1993
the Agreement of Sale dated 08.10.2002. As per the defendant, after
she changed her Advocate she informed the Advocate about the same
and the Advocate advised her to mention the same in the written
statement. It therefore, seems that the defendant was not aware that
the said fact was to be mentioned in her written statement. The
Advocate for plaintiff raised objection that the trial has been
commenced and there is huge delay. It seems that the matter is fixed
for crossexamination of plaintiff's witness and the crossexamination is
yet to begin. Also as per Order 6 Rule 17 of the Code of Civil Procedure
the Court may at any stage of the proceedings allow either party to alter
or amend the pleadings, if it is just and necessary for the purpose of
determining the real question in controversy between the parties. As
per the proviso to Order 6 Rule 17 the amendement should not be
allowed if the trial has been commenced. As such only affidavit of
evidence is filed and the crossexamination is yet to begin and
therefore, it cannot be said that the trial has been commenced in real
sense. Also the proposed amendment is necessary for adjudication of
the matter on merits. It seems that if the amendement is not allowed
the defendant will suffer serious prejudice. Also an opportunity is given
to the defendant to defend her case on merits. No such prejudice will
cause to the plaintiff and therefore, the proposed amendement is
necessary for deciding the real controversy between the parties.
Therefore, I proceed to pass the following Order:
ORDER
1. Chamber Summons No.1742 of 2019 is allowed.
2. The defendant shall carry out the amendment in her written
statement as per the schedule annexed to the chamber summons
within 14 days of this order.
-- 3 of 6 --
4 CHS 1742/2019 in Suit 8582/1993
3. The defendant shall file the amended copy of the written
statement on record as well as supply to the plaintiff.
4. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 01082022 City Civil Court, Gr. MUMBAI
Dictated on : 01082022
Transcribed on : 02082022
checked on : 02082022
Signed on : 03082022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
-- 4 of 6 --
5 CHS 1742/2019 in Suit 8582/1993
ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03.08.2022 at 02.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of
judgment/order
01.08.2022
Judgment/order signed by P.O. on 03.08.2022
Judgment/order uploaded on 03.08.2022
-- 5 of 6 --
6 CHS 1742/2019 in Suit 8582/1993
-- 6 of 6 --