Interim Order 1

Order Details: Chamber summons
Pdf Text: 1 Order on C/S.2209-19 in Su.No.2600-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON CHAMBER SUMMONS NO.2209 OF 2019
(CNR No. MHCC01-012851-2019)
IN
L.C. SUIT NO. 2600 OF 2019
1. Shyam Roopchand Jaisingh & Ors ]...Plaintifs
Versus
Mumbai Municipal Corporation & Ors. ]...Defendants
Appearances:-
Ld. Advocate Mr.P.D.Gandhi for the Plaintif.
Ld. Advocate Mr.Mokashi for Defendant No.3 and 4
Ld. Adv. Mrs.Dipali Patil for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J. MORE
(Court Room no. 8)
DATED : 04th February, 2020
ORDER ON CHAMBER SUMMONS NO.2209 OF 2019
1. Chamber Summons moved by the plaintif for
amendment in the pleadings it is stated that, the suit is fled
for by challenging to permission letter bearing No.
ACM/W/20966/B & F and ACM/W/20965/B & F both dated
03.03.2017 respectively and two more permissions letters
bearing No. ACM/W/OD/496/B & F and No. ACM/W/OD/495/B &
F dated 09.08.2019 granted to the defendant No. 3 and 4
respectively by the defendant No.2 in respect of the said
structures being Exhibit "K" (Colly) and "L" (Colly) and the suit
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is also fled for mandatory injunction with request to revoke
this permission as discussed above in short suit is fled for
declaration, mandatory injunction and perpetual injunction.
2. It is further stated that, the ad-interim relief fled by
the plaintif is rejected on 05.10.2019. AOST No.27167 of 2019
fled before Hon ble High Court was pleased to allow the
appeal in favour of plaintif vide order date 09.10.2019. In
respect of knowledge of order defendant No.3 and 4
committed blunt violation and breach of order dated
09.10.2019, They were carrying various contemptuous acts.
Accordingly Contempt Notice of Motion No.27792 of 2019 in
A.O. ST No.27167 of 2019 fled and sought urgent relie Hon ble
High Court on 22.10.2019 was pleased to appoint
commissioner to visit site and submit report about the
structure of suit premises. It is further submitted in respect of
restrained order by Hon ble High Court Defendant No.3 and 4
under the garb of repair permission, which under challenged
in a suit entered in a suit premises and have put up CCTV
cameras and engage personal who found loitering in suit
premises and obstructing a entry of a plaintif. Therefore, it is
necessary to amend the plaint in the change of circumstances
in order to incorporate the above incident in the body of a
plaint.
3. Defendants objected to the contents of the Ch/S
being unambiguous. It is stated that under the garb of present
Chamber Summons plaintif seeks to carry out amendment
bringing in a so called of cause of action. So as to entirely
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change the nature of present suit. Plaintif is trying to miss
lead and miss interpret the order of Hon ble High Court.
Hence, prayed for rejection.
4. Heard, both the sides at length.
5. Ld. Adv. P.D.Gandhi for the plaintif pithily
submitted that, if the Chamber summons for amendment is
allowed, it will not change the cause of action and nature of
suit. All the amendments are consequential amendments.
Therefore, the Chamber Summons if allowed it will not cause
any loss to the defendant.
6. Ld.Adv. Mokashi for the defendant No.2 to 4 pithily
submitted that, the suit is fled by the plaintif by challenging
the repair permission given by MCGM in favour of defendant
No. 2 and 4. The relief which is not included in the suit cannot
be added in amendment.
7. I would like to focus a light on the provision of order
6 rule 17 of CPC.
“Amendment of pleadings – The
Court may at any stage of the
proceedings allow either party to alter or
amend his pleadings in such manner and
on such terms as may be just, and all
such amendments shall be made as may
be necessary for the purpose of
determining the real questions in
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controversy between the parties:
Provided that no application for
amendment shall be allowed after the
trial has commenced, unless the Court
comes to the conclusion that in spite of
due diligence, the party could not have
raised the matter before the
commencement of trial.”
8. Admittedly the suit fled by the plaintif by
challenging to permission letter bearing No. ACM/W/20966/B &
F and ACM/W/20965/B & F both dated 03.03.2017 respectively
and two more permissions letters bearing No. ACM/W/OD/496/
B & F and No. ACM/W/OD/495/B & F dated 09.08.2019 granted
to the defendant No. 3 and 4 respectively by the defendant
No.2 in respect of the said structures being Exhibit "K" (Colly)
and "L" (Colly) and the suit is also fled for mandatory
injunction with request to revoke this permission as discussed
above in short suit is fled for declaration, mandatory
injunction and perpetual injunction.
9. Subsequently the ad-interim relief fled by the
plaintif was rejected. Plaintif prepared appeal from order
St.No.27167 of 2019 before Hon’ble Bombay High Court.
Hon’ble Bombay High Court was pleased to allow the appeal in
favour of the plaintifs vide order dated 09.10.2019. The said
order was to the knowledge of all defendants including
defendant No. 3 and 4. Despite the stay order defendant No. 3
and 4 were carrying out various contemptuous act accordingly
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Contempt Notice of Motion 27792 of 2019 is also fled in A.O.
St.No.27167 of 2019. Hon’ble Bombay High Court was pleased
to appoint commissioner to visit site by order dated
22.10.2019. It is further transpires that, the commissioner
report is also fled on record on 06.11.2019. It is further
transpires as in the amendment is required as despite of order
of Hon’ble Bombay High Court the defendant No.3 and 4 put
C.C.T.V. cameras and also found some persons loitering in suit
premises. Therefore, plaintif seeking mandatory relief against
contemptuous action of the defendant No.3 and 4.
10. Ld.Advocate for the plaintif placed reliance on
following case laws.
i) Civil Appeal No. 787 of 2001, Hon'ble
Supreme Court, between the parties - Ragu
Thilak D. John Vs. S. Rayappan and Ors,
ii) Civil Misc.Jurisdiction No.1464 of 2018,
Hon'ble High Court of Patna in between parties
- Suman Kumar V. Chhathi Lal Rai.
iii) Civil Appeal No.2343-2344 of 2017, Hon'ble
Supreme Court, beween the parties -
Chakreshwari Construction Pvt. Ltd. Vs.
Manohar Lal.
iv) Writ petition No. 2897 of 2006 on dated
20.10.2006, Hon'ble Bombay High Court, in
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between parties - Bharat Petroleum
Corporation Ltd. Vs. Precious Finance
Investment Pvt. Ltd.
v) Hon'ble Bombay High Court is held that in
Writ petition Nos. 5775 of 2012, 722 of 2013
and Civil Rev. Appln. No. 482 of 2012 on dated-
25.09.2013 between the parties
Walchandnagar Industries Limited Vs.
Indraprastha Developers and Ors.
10. With due respect the ratio of these citations is
applicable the case is in hand.
11. It is observed by Hon’ble Bombay High Court in Writ
petition No. 2897 of 2006 on dated 20.10.2006.
“The courts while deciding he
application for amendment should not
adopt a hyper-technical approach. Liberal
approach should be the general rule
particularly in case where the other side
can be compensated with the costs.
Amendment need to be allowed to avoid
uncalled-for multiplicity of litigation.”
12. Therefore, I am of the opinion that for passing
amendment over allowing amendment application following
factors are important:-
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a) The amendment necessary for determining the
real controversy involved in the Matter and to avoid
multiplicity of the litigation.
b) It should not change the nature or basic structure
of the suit.
c) it should not be malafed amendment design to
delay or protracted legal proceeding.
13. Thus, this application complies above factors as the
contents of the pleadings in the amendment are subsequent
act after fling of the suit. It requires the consequential
amendment in the body of the plaint to avoid multiplicity of
the proceeding. if it does not allowed. Plaintif has to fle the
independent suit it will be account records to the multiplicity
of the litigation.
14. Thus, on hearing the submission of the Ld. Counsel
for the plaintif and defendants and on perusal the record, I
found that the plaintif has sought mandatory relief with the
allegations and action on the part of defendant No.3 and 4.
The action by the defendant No. 3 and 4 are consequential act
which needs to be incorporated by way of amendment and
same is allowed. According to me it will not change the nature
of the suit and it is simply a consequential. Accordingly, I pass
following order.
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O R D E R
1. Chamber summons No.2209 of 2019 in terms of prayer
clause (a) is made absolute.
2. Plaintif to carry out amendment within two weeks.
3. Chamber Summons No.2209 of 2019 is disposed of
accordingly.
(U.J. More)
Judge,
Date : 04.02.2020 City Civil Court, Gr. Mumbai
Dictated on : 04.02.2020
Transcribed on : 05.02.2020
Signed by HHJ on : 06.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.02.2020 at 3.15 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With
Court Room no.)
HHJ Shri. U.J.More.
C.R. no.08
Date of Pronouncement
of JUDGMENT/ORDER
04.02.2020
JUDGMENT/ORDER signed
by P.O. on
05.02.2020
JUDGMENT/ORDER
uploaded on
06.02.2020
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