Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.1778/19 (L.C.S. No.1576/19)
MHCC010100862019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS No.1778 OF 2019
I N
LONG CAUSE SUIT No.1576/2019
Chandrakant s/o. Dinkar Bhosle
& Anr. … Plaintiffs
- Versus -
The Municipal Corporation
of Greater Mumbai & Anr. ... Defendants
Appearance :-
Mr. Shukla h/f. Mr. Pande, Advocates for plaintiffs.
Mrs. Jyoti Mhatre, Advocate for defendants/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 18/06/2024.
O R D E R
. The plaintiffs have taken out this Chamber Summons for
amendment in the plaint under Order-VI Rule-17 of The Code of Civil
Procedure (in short the C. P. C.).
2] The facts of Chamber Summons can be summarized as
follows :-
The plaintiffs have challenged notice under Section 351 of
The Mumbai Municipal Corporation Act (in short the M. M. C. Act) and
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2 C/S. No.1778/19 (L.C.S. No.1576/19)
asked for urgent relief. This Court has granted ad-interim protection
with liberty to B. M. C. to pass fresh Speaking Order by following due
process of law. The plaintiffs had filed reply to Show Cause Notice.
Thereafter, defendant B. M. C. passed Speaking Order holding that
there is no document showing existence of structure prior to 1962 and
thereby threatened to demolish structure.
3] It is further stated that the Speaking Order has been passed
without application of mind and documents. Therefore, the plaintiffs
have taken out present Chamber Summons for leave to amend the
plaint. By way of proposed amendment the plaintiffs are challenging the
Speaking Order. The proposed amendment is relating to subsequent
event.
4] Defendant B. M. C. opposed Chamber Summons stating
that Chamber Summons is barred by law. There is separate cause of
action after passing Speaking Order hence separate suit ought to have
filed by the plaintiffs, therefore, Chamber Summons deserves to be
dismissed.
5] Perused Chamber Summons, affidavit in support thereto,
record and proceeding. Heard learned advocates for the parties.
6] The plaintiffs have challenged demolition notice issued
under Section 351 of the M. M. C. Act. It is contended by the plaintiffs
that after filing suit the Designated Officer has passed Speaking Order
on 1/8/2019. It is further contended that Speaking Order has been
passed without application of mind and thereby defendant B. M. C.
threatened to demolish structure. The plaintiffs are seeking permission
to insert contention in respect of subsequent passing of Speaking Order.
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7] As per the provisions of Order-VI Rule-17 of the C. P. C.
Court may allow the amendment in the proceeding, which are necessary
for determining real controversy between the parties. I have gone
through the proposed amendment. As per schedule annexed to
Chamber Summons, it appears that by way of proposed amendment the
plaintiffs are challenging demolition order. The suit is filed to challenge
notice under Section 351 of the M. M. C. Act and by way of proposed
amendment the plaintiffs are challenging Speaking Order. Thus, the
proposed amendment appears to be just and necessary for complete
adjudication of dispute. The Corporation opposed Chamber Summons
on the ground of delay. However, delay in taking out Chamber
Summons is no ground to reject leave to amend pleading. The B. M. C.
has also opposed Chamber Summons on the ground that the plaintiffs
ought to have filed a separate suit. The purpose of Order-VI Rule-17 of
the C. P. C. is to avoid multiplicity of proceeding and to adjudicate the
controversy in same suit. In such circumstances, I find no substance in
the objection of defendant B. M. C. that the plaintiffs ought to have filed
a separate suit.
8] The proposed amendment appears to be just and necessary
for complete and effective adjudication of the dispute. The suit is at
initial stage hence no prejudice would be caused to other side and there
is no likely to change in nature of suit. Hence Chamber Summons
deserves to be made absolute. Hence following order is passed :-
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O R D E R
Chamber Summons is hereby made absolute in terms of prayer clause
(a) and (b).
Date : 18/06/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
25/06/2024 05:35 p. m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 18/06/2024
ORDER Typed on 21/06/2024
ORDER signed by P. O. on 24/06/2024
ORDER uploaded on 25/06/2024
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