Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010110762019
CNR NO. MHCC010110762019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1932 OF 2019
IN
S.C. SUIT NO.3796 OF 2012
SHOBHA N. PATIL & ORS. ] … Plaintiffs
V/s.
DILIP VYANKATESH KOREGAONKAR ] ...Defendant.
Appearances :
Ld. Adv. Mr. Rahul Raut for plaintiffs.
Ld. Adv. Mr. Shyam Horambe for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 5th August, 2022
ORAL ORDER
1. The present Chamber Summons are taken out by the
defendant seeking directions to the plaintff to amend the plaint and to
add one Yamunabai Vishnu Sawant as party defendant to the present
suit and in alternative to permit the defendant to amend the written
statement as per schedule annexed with the Chamber Summons.
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2. It was submitted by the defendant that the plaintiff filed
the present suit against the defendant for recovery of possession on the
ground that the defendant is a rank trespasser. The father of defendant
acquired right in the suit property from one Yamunabai V. Sawant who
was the tenant of the plaintff. The plaintff terminated the tenancy of
Yamunabai. The said Yamunabai was called upon to vacate with the
portion of the suit premises on the ground that she had carried out
additions and alterations of permanent nature. The plaintff has also
alleged that the said Yamunabai illegally parted with possession of suit
property in favour of father of the defendant and therefore, the
defendant is a rank trespasser. The said Yamunabai was contractual
tenant and the defendant has right, title and interest from said
Yamunabai and therefore, Yamunabai is a proper and necessary party to
the suit. And therefore, plaintiff be directed to add her as a party
defendant. The defendant further submitted that in alternative if the
plaintiff is not directed to add her as a party, the defendant be given
liberty to amend his written statement and to raise the defence of non
joinder of necessary party to the suit and hence Chamber Summons be
allowed.
3. The plaintff filed his reply and submitted that the present
application is taken out for amendment under the guise of Order 1 Rule
10 Sub Clause 2 of the Code of Civil Procedure. The plaintiffs are
“Dominus Litus” and they cannot be directed to add any party.
Moreover, the said Yamunabai is no more and therefore, a dead person
cannot be joined in the proceedings. The plaintiff further submitted
that the tenancy of the Yamunabai was terminated way back at in the
year 1958. The Yamunabai is not having any claim and no relief has
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been sought against her and therefore, she is not proper and necessary
party and hence Chamber Summons be dismissed.
4. Heard the Learned Advocate for plaintif and defenant. The
Learned Advocate for defendant relied upon following citations:
(1) (1964) 6 SCR 1:AIR 1965 SC 271 in the case of
Kanakarathanammal Vs. V.S. Loganatha Mudaliar and Another.
(2) (1994)3 Supreme Court Cases 544 in the case of Swaran
Singh and Others Vs. State of Punjab and Others.
(3) (2004) 1 Supreme Court Cases 317 in the case of Khetrabasi
Biswal Vs. Ajaya Kumar Barai and others.
(4) (2017)3 Supreme Court Cases 702 in the case of Swamy Koil
Trust, Virudhunagar Vs. Chandran and others.
5. As against this Learned Advocate for plaintff relied upon
following two citations:
(1) (2009)2 Supreme Court Cases 409 in the case of Vidyabai and
Others Vs. Padmalatha and another.
(2) (2005)6 Supreme Court Cases 733 in the case of Kasturi Vs.
Iyyamperumal and others.
6. After going through the contention raised by both the
parties, it seems that the prayer of the defendant in the present
Chamber Summons is two fold. The defendant is seeking addition of
the party under Order 1 Rule 10 Sub Rule 2 of the Code of Civil
Procedure. The defendant is seeking directions to add one Yamunabai
as a party defendant to the suit. As per the reply of plaintif the said
Yamunabai has expired and therefore, the prayer at Sr. No.1 of the
Chamber Summons cannot be allowed.
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7. The defendant in alternative is seeking amendment in the
written statement. It is the case of defendant that he derived right, title
and interest from Yamunabai and therefore, she is the necessary party.
Since the plaintiff had not added the Yamunabai as party defendant, the
defendant be permitted to carry out amendment in the suit and raise
defence on the ground of nonjoinder of necessary party. As such the
plaintiff has mentioned in the plaint regarding the Yamunabai Vishnu
Sawant. The defendant had also filed his written statement long back
at the time of his appearance in the year 2013. It seems that in the
pleading of the plaintiff he has already mentioned about the Yamunabai
Vishnu Sawant and had also mentioned that the plaintiff had
terminated the tenancy of Yamunabai by notice. The defendant could
have carried out amendment at the time of the trial. Here in the
present suit not only the trial has been commenced but the trial has
been concluded. Both the parties had filed their written notes of
argument and matter was fixed for the oral argument. Even the oral
arguments of the defendant was part heard. No reasons has been
mentioned by the defendant as to why the amendment was not sought
earlier. As per the proviso to order VI Rule 17 the amendment shall not
be allowed after the commencement of the trial. It is not the case of
defendant that he was not aware about his defence regarding non
joinder of necessary party at the time of filing written statement or any
time thereafter. The defendant himself stated that the plaintiff had
pleaded that the tenancy of Yamunabai was terminated by notice. It
therefore, seems that the said fact was in the knowledge of defendant
since he appeared and filed his written statement. No reason has been
mentioned for the delay and no specific reasons has been mentioned for
not filing the application for amendment at the earliest possible
opportunity. Now the trial bas been concluded and therefore, the
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amendment cannot be allowed at such belated stage. If the amendment
is allowed, it will be the plaintff who will suffer serious prejudice and
will suffer great harm. And therefore, the proposed amendment being
filed at belated stage cannot be allowed. I, therefore, proceed to pass
the following Order:
ORDER
1. Chamber Summons No.1932 of 2019 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 05082022 City Civil Court, Gr. MUMBAI
Dictated on : 05082022
Transcribed on : 08082022
checked on : 08082022
Signed on : 08082022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.08.2022 at 03.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of
judgment/order
05.08.2022
Judgment/order signed by P.O. on 08.08.2022
Judgment/order uploaded on 08.08.2022
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