Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1781 OF 2019
CNR NO.MHCCO10101342019
IN
SUIT NO.7538 OF 1981
Shree Saurashtra Patel Samaj
A Public Charitable Trust ..Plaintiff
Versus
1. Gijubhai Dhanjibhai Patel and ors
..Defendants
Adv. Ankur Shah for plaintiff.
Adv. Mr. Hira for deft. nos.1, 3 and 5.
Adv. Mr. Tejas Shah for deft. nos.10 to 12.
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 04/12/2019
ORAL ORDER
1. This chamber summons is filed by the plaintiffs for
amendment.
2. Heard.
3. Ld. Counsel for the plaintiff submitted that by the
present chamber summons the plaintiff wish to bring
the facts on record which are subsequent to the filing
of the suit. The plaintiff used to bring the fact of
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addition of the suit land in the name of plaintiff
no.35 in the register maintained under section 17 of
the Maharashtra Public Trust Act, 1950 and entry to
that effect taken in it in the year 2018. The
amendment is sought for avoiding multiplicity of the
litigations and hence prayed for allowing the
chamber summons.
4. The defendant nos.10 to 12 opposed the present
chamber summons but they have not filed reply to it.
Their contention is that the proposed amendment
was well within the knowledge of the plaintiffs. Only
the contents of Schedule in para (j) is subsequent
event and they have no objection to incorporate it.
They would submit that the evidence of witness PW
1 is filed and the plaintiff earlier has amended plaint
in the year 2018 and has not taken steps to bring
those facts at that time though it was well within the
knowledge of the plaintiff. The present amendment
should not be allowed as the trial has commenced.
5. On perusal of proviso order 6 rule 17 of the Civil
Procedure Code, it is apparent that no application for
amendment shall be allowed after the trial is
commenced, unless the Court comes to the
conclusion that inspite of due diligence, the party
could not have raised the matter before
commencement of trial. The defendant does not
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dispute about incorporating part of the schedule (j)
as it is subsequent event. Ld. Counsel for the
defendants pointed out that contents of 1(a) of
schedule are already in para.1 of the plaint. So,
these facts are not required to be incorporated. He
further pointed out in para. 1(b), (c), 2(g), (h) and
(i) of the schedule, the facts were within the
knowledge of the plaintiffs and those ought to have
been incorporated at the time of filing of chamber
summons no.1082/2018.
6. The amendments if does not change the nature of the
pleadings and is not prejudicial to the interest of
either party is required to be allowed. Para.1 of the
schedule reflect about the facts which are in
existence except para.1B of the schedule which is
the introductory part in respect of the plaintiffs who
were subsequently joined as party being trustee,
therefore it would not caused any prejudice to the
defendants. Even otherwise, they are already on
record and therefore mere introduction of their status
would not defeat the proviso to Order 6 Rule 17 of
the C.P.C. The amendment in para.2(g)(h) and (i)
are required to be incorporated as contended by the
plaintiffs only for explaining the transaction. The
necessary pleadings in that respect is already on
record. Ld. Counsel for the defendants submitted
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that again those facts are of year 199091 and prior
to it and therefore those are in the knowledge of the
plaintiff and the same ought to have been
incorporated at the earliest point of time. On perusal
of original pleadings, it appears that the facts of
execution of conveyance dated 02/02/1990 was
already incorporated. The facts which plaintiffs wish
to incorporate by para.2(g) to (I) are in connection
with the existing facts on record and same is to
elaborate the earlier pleadings, therefore those
would not hit the proviso of rule 17 of order 6 of the
Civil Procedure Code. The proposed amendment does
not change the nature of the pleadings. The
proposed amendment is not prejudicial to the interest
of the defendants and does not take away accrued
right which was in favour of the defendants. Hence,
chamber summons needs consideration. Hence, it is
expedient to pass following order:
ORDER
1. Ch/sum no.1781/2019 is made absolute
in terms of prayer clause (a) and (b) and the
schedule annexed.
2. Plaintiffs to carry out necessary
amendments within a period of three
working days.
3. Cost in the cause.
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4. Ch/sum no.1781/2019 is disposed off
accordingly.
04/12/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 04/12/2019
Transcribed on : 18/12/2019
Signed on : 03/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
24/01/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
04/12/2019
Judgment and order signed by P.O. 03/01/2020
Judgment/order uploaded on 24/01/2020
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