Final Order 1

Order Details: Chamber summons
Pdf Text: C/s.1923/19 Suit 429/18 1
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1923 OF 2019
IN
SUMMARY SUIT NO. 429 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC010109702019)
Abhishek Jitendra Palrecha ...Plaintiff
Versus
Silver Arch Builders and Promoters ...Defendant
Appearances:
Advocate Mr.Vashi for the Plaintiff.
Advocate Mr.Saurabh Chitnis for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 24th JANUARY 2020
O R D E R
1. By this Chamber Summons the plaintiff requested to grant
permission to carry out amendment in the plaint.
2. The defendant resisted the Chamber Summons.
3. The Ld advocate on behalf of the plaintiff argued that during
pendency of the suit in the process of Diwali Cleaning in October 2019,
the plaintiff came across the photocopy of receipt dtd.14.06.2020 given
by the defendant. Vide same receipt the defendant acknowledged and
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C/s.1923/19 Suit 429/18 2
confirmed receipt of the amount from the plaintiff. Therefore, the
plaintiff proposed to bring same document on record by carrying out
the amendment in the plaint. On these contentions, Ld advocate
requested to allow the Chamber Summons.
4. On the other hand, Ld advocate on behalf of defendant argued
that no ground is made out to grant permission to carry out the
amendment. The power under Order 6 Rule 17 cannot be exercised in a
routine manner. The amendment is sought at the stage when arguments
on the Summons For Judgment were already concluded. The original of
the document is not with the plaintiff. It is not filed on the record. If the
amendment is permitted it will introduce new cause of action and will
change nature of the suit. Therefore, he requested to reject the Chamber
Summons.
5. By the proposed amendment the plaintiff principally proposes to
file a document on record and resultantly, proposes to refer the same in
the plaint by carrying out amendment. The reason given by the plaintiff
is that he found the copy after filing of the suit. Since the receipt is
claimed to be a document by which the defendant acknowledged and
confirmed the receipt of amount from plaintiff, same copy is relevant
and necessary to determine material controversy between the parties.
True that the arguments on the Summons for Judgment have already
been concluded. However, the suit has not passed the stage of trial as
contemplated in the proviso of Rule 17 of Order 6. Resultantly, the
court should be liberal in granting the amendment.
6. One of the arguments raised on behalf of the defendant is that
the defendant will not get opportunity to deal with the said document
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C/s.1923/19 Suit 429/18 3
in his reply. However, that cannot be an issue because the defendant
may be permitted to carry out amendment in his reply and file
additional reply regarding the amendment in the plaint. The defendant
also argued that the document is merely a photocopy and the plaintiff
does not have original of the same. Same contention is regarding the
merits of the case. Impact of the copy sought to be produced cannot be
decided at this stage. Merits of the amendment cannot be made subject
of discussion while considering the application for grant of amendment.
Even if the amendment is permitted the suit will remain as summary
suit for recovery of amount. Thus, there will be no change in the nature
of the suit and no change in the cause of action. Having regard to these
circumstances, the Chamber Summons deserves to be allowed subject to
cost. Hence, order as follows is passed:
ORDER
1. The Chamber Summons No.1923 of 2019 is allowed as under:
2. Permission is granted to the plaintiff to carry out amendment in
the plaint as prayed as per the schedule annexed to the affidavit of
Chamber Summons, subject to cost of Rs.2000/(Two thousand only) to
be paid to the defendant by the plaintiff.
3. The plaintiff to carry out the amendment on or before next date.
4. The Chamber Summons No. 1923 of 2019 is disposed
accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 24/01/2020 City Civil Court,Gr. Mumbai
Dictated on : 24/01/2020
Transcribed on : 28/01/2020
Signed on : 30/01/2020
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C/s.1923/19 Suit 429/18 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
31/01/2020 at 12.25p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 24/01/2020
Judgment/Order signed by P.O. on 28/01/2020
Judgment/Order uploaded on 31/01/2020
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