Final Order 2

Order Details: Chamber summons
Pdf Text: 1 CS 175519 IN SUIT 198414
MHCC010099712019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 1755 OF 2019
IN
S C SUIT NO. 1984 OF 2014
Surendrakumar Dinkar Naik ] ...Plaintiff.
Versus
The State Of Maharashtra And Ors ]…Defendants.
Appearance:
Ld. Advocate Jaykumar Shiradhonkar @ Advocate Vasant Thanvi for
plaintiff.
Ld. Advocate Sudarshan Gamane for defendant No.3.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 22/7/2022
ORAL ORDER
1) Plaintiff has taken out present chamber summons for
allowing him to amend the plaint as per Schedule.
2) Perused the chamber summons, affidavit in support of
chamber summons, reply affidavit of defendant No.3 and rejoinder
affidavit of plaintiff. The proposed defendants and other defendants
failed to file reply. Heard arguments of Ld Advocate for plaintiff and
Ld Advocate for defendant No.3. As the other defendants and
proposed defendants were absent, they could not be heard.
3) Ld Advocate for plaintiff argued that plaintiff filed suit
-- 1 of 6 --
2 CS 175519 IN SUIT 198414
in hurry in order to protect his dispossession at the hands of
defendant No.3. However, during the pendency of the suit on
18/4/15 plaintiff was dispossessed from the suit premises by
defendant No.3 and 4 without following due process of law. The
plaintiff is and was represented by Advocate provided by Mumbai
District Legal Aid Services Authority and his earlier Advocate
provided by Mumbai District Legal Aid Services Authority did not
bring on record above fact. After filing affidavit in lieu of
examination in chief of plaintiff another Advocate provided by
Maharashtra Mumbai District Legal Aid Services Authority verified
the matter. Moreover, recently the plaintiff received the material
documents relating to the matter in issue after commencement of
the trial of the suit. Therefore, plaintiff wants to bring on record the
above subsequent event and the documents obtained recently. The
proposed amendment is necessary for the purpose of determining
real controversy between the parties and for avoiding multiplicity of
suits. Therefore, Ld Advocate for plaintiff prayed that chamber
summons be made absolute.
4) On the other hand Ld Advocate for defendant No.3
argued that in the present matter trial of the suit is already
commenced and evidence of PW1 is already recorded. There are
delay and latches on the part of plaintiff in taking out the chamber
summons. Plaintiff has not demonstrated that inspite of due
diligence he could not have raised the matter before commencement
of trial. So, present chamber summons is not tenable. Hence, Ld
Advocate for defendant No.3 submitted that chamber summons be
dismissed.
5) From the matter on record it appears that plaintiff
instituted the present suit in year 2012 for declaration, permanent
-- 2 of 6 --
3 CS 175519 IN SUIT 198414
injunction restraining defendant No.2 and 3 from dispossessing the
plaintiff from the suit premises or disturbing plaintiff's possession
over the suit premises and for mandatory injunction. From the
matter on record it appears that trial of the suit is already
commenced and cross examination of plaintiff's witness No.1 is also
completed. It appears that plaintiff has taken out the present
chamber summons after completion of the cross examination of
PW1. As such it is necessary for the plaintiff to demonstrate that
inspite of due diligence he could not have raised the matter before
the commencement of trial. From the affidavit in support of
chamber summons, it appears that it is the contention of the plaintiff
that he was dispossessed from the suit premises on 18/4/15.
Admittedly, the present chamber summons is taken out by the
plaintiff in year 2019. From the matter on record it appears that
plaintiff is represented by the Advocate provided by Mumbai District
Legal Services Authority. It is the contention of the plaintiff that as
earlier Advocate who was appointed by Mumbai District Legal
Services Authority had not brought on record the above fact of
dispossession of plaintiff from the suit premises. Admittedly, at
present also the plaintiff is represented by Advocate provided by
Mumbai District Legal Services Authority. Moreover, by the
proposed amendment the plaintiff wants to bring on record the
documents which are received by him recently and after tendering
affidavit of evidence of PW1. Moreover, defendant has not brought
on record any material so as to disbelieve the cause shown by the
plaintiff in his affidavit in support of chamber summons for not
taking out present chamber summons before the commencement of
trial. Therefore, from the matter on record it appears that inspite of
due diligence the plaintiff could not have raised the matter before
the commencement of trial.
-- 3 of 6 --
4 CS 175519 IN SUIT 198414
6) From the matter on record it appears that by the
proposed amendment plaintiff wants to incorporate the subsequent
development of its dispossession by defendant No.3 and 4and
plaintiff wants to add defendant No.4 and 5 as party to the present
suit. Moreover, by the proposed amendment plaintiff wants to bring
on record the documents obtained by him recently which are
relevant for determining the matter in controversy and plaintiff
wants to incorporate new prayer in the prayer clause. Considering
the matter on record the proposed amendment appears necessary
for the purpose of determining the real question in controversy
between the parties and for avoiding multiplicity of the suits.
Moreover, no prejudice is likely to be caused to defendants if the
amendment as sought is allowed. It is settled law that merits of the
amendment cannot be considered at this stage and mere delay is
also not ground for rejection of amendment. Moreover, from the
matter on record and above discussion court came to the conclusion
that inspite of due diligence the plaintiff could not raise the matter
before commencement of trial. Therefore, there appear no substance
in the objection of defendant No.3.
7) Considering the matter on record and above discussion
the present chamber summons deserves to be made absolute.
Therefore, court proceeds to pass the following order:
ORDER
1) Chamber Summons No. 1755 of 2019 is made absolute.
2) Plaintiffs shall carry out the amendment as per schedule within
14 days from the date of this order.
-- 4 of 6 --
5 CS 175519 IN SUIT 198414
3) Chamber Summons No.1755 of 2019 is disposed off accordingly.
Date : 22/7/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on :22/7/2022.
Checked on :25/7/2022.
Signed on :28/7/2022.
-- 5 of 6 --
6 CS 175519 IN SUIT 198414
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/7/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
22/7/2022
JUDGMENT/ORDER signed by P.O.
on
28/7/2022
JUDGMENT/ORDER uploaded on 28/7/2022
-- 6 of 6 --