Final Order 1

Order Details: Chamber summons
Pdf Text: CS No. 2020-19 In S.C.Suit No. 685-1990
1 Date 29.08.2020
MHCC010114522019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 2020 of 2019
IN
S.C. SUIT NO. 685 of 1990
(CNR NO.MHCC01-011452-2019)
SGM Properties & Investments Private Ltd. … Plaintiffs.
Versus
Basant Bilasrai Rungta & Ors. ... Defendants
Appearances :
Ld. Adv. Mr. Pravin N.Shah i/b Mr.D.T.Chafe for plaintiff.
Ld. Adv. Snehal Modi for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge.
C.R. No. : 7
Dated : 29.08.2020
ORDER
1. Plaintiffs have filed instant Chamber Summons for amendment of
plaint. It is the contention of Plaintiffs that they have filed present suit
for recovery of possession of Room No. 58 on Fourth Floor of building
known as “Bhupen Chamber” situated at 09/13/15 Dalal Street fort
Mumbai.
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2. It is contended by the Plaintiffs that it was found to them that the
Room No. 58 on Fourth Floor of building known as “Bhupen Chamber”
situated at 09/13/15 Dalal Street fort Mumbai has been sub-divided
into three parts admeasuring approximately about 400 sq. fts, 600 sq.
fts. and 200 sq. Fts., which is shown in the rough sketch plan of the
plaint. Thus, on the date of filing of the suit ‘Part-A’ shown in the sketch
plan was in occupation of Defendant no. 1, ‘Part-B’ shown in the sketch
plan was/is in occupation of Defendant no.2 and ‘Part-C’ shown in the
sketch plan was in occupation of Defendant no.3.
3. It is contended by the Plaintiffs that during pendency of the suit
the Defendant no.1 and 3 handover the vacant possession of their
respective portion of the Room No. 58 on Fourth Floor of building
known as “Bhupen Chamber” situated at 09/13/15 Dalal Street fort
Mumbai.. Therefore, they have deleted the names of Defendant no.1
and 3 and the suit is continued with respect to the possession of
Defendant no. 2 in respect of Portion B shown in the sketch map.
(hereinafter shall be referred to as "suit premises")
4. It is contended by the Plaintiff that the Defendant herein has filed
RAD Suit No. 2074 of 1996 before Small Causes Court for declaration of
his tenancy and other relief in respect of his occupation- “Portion B”.
The aforesaid suit was decreed by Small Causes Court by order dated
24.04.2008 and the Defendant no. 2 was declared as tenant of the suit
premises. The plaintiff challenged the aforesaid order before Appellate
Court of Small Causes Court vide, Appeal No. 392 of 08 which came to
be dismissed vide order dated 05.05.2018. The Plaintiff further
challenged the aforesaid order before Hon'ble High Court by way of
Civil Revision Application No. 634/18. The Hon'ble High Court vide its
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CS No. 2020-19 In S.C.Suit No. 685-1990
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order dated 20.08.2019 dismissed the suit on the ground of limitation.
The Hon'ble High Court also declared that the aforesaid order does not
prejudice the rights of either party in the present suit on any aspect,
including the defendant's status. Thus, it is contended by the Plaintiffs
that aforesaid subsequent event took place during the pendancy of the
present suit, to which they wanted to incorporated by way of present
amendment application.
5. It is contended by the Plaintiffs that the Defendant's claim of
tenancy has been rejected by the Hon'ble High Court and thus, the
Plaintiffs are entitled for declaration that the occupation of the
Defendant in the suit property is illegal from the date of filing of the
suit and they are entitled for relief of mesne profit/damages from the
date of filing of the suit till his handing over possession of the suit
premises.
6. The Plaintiff further contended that they have filed affidavit in
lieu of examination-in-chief and cross is yet to begin hence, no harm or
prejudice would be caused to the Defendant if, they allowed to amend
the plaint. Hence, Plaintiff prayed for allowing the present Chamber
Summons.
7. The Chamber Summons is opposed by the Defendant by
filing say. It is contended by the Defendant that the proposed
amendment is barred by limitation and same needs to be
dismissed. It is submitted by the Defendant that the claim of
Defendant as a tenant is not affected by the Judgment of Hon'ble
High Court passed in Civil Revision Application No. 634 of 2018.
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The suit of Defendant was rejected only on the point of limitation
which does not bar the Defendant from raising his defence that he
is the tenant in respect of suit premises. Hence, Defendant prayed
for dismissal of present Chamber Summons.
8. Heard both the sides. Perused Chamber Summons and reply.
The Plaintiffs have filed present suit for possession of suit
premises. The Plaintiffs seeking amendment of plaint as per the
schedule annexed with the Chamber Summons. In schedule, para
no.1 and 2 are with respect to the subsequent events which took
place during pendancy of the present suit. The defendant has not
seriously diputed for allowing the amendment with respect to para
no.1&2 of the schedule. Hence, in my view, Plaintiffs can be
allowed to carry out amendment with respect to subsequent events
as enumerated in Para 1 and 2 of the schedule.
9. As far as regarding Para No. 3 of the schedule and Para No. B
of prayer clause with respect to prayer of Mesne profit, the
defendant objected on the ground that the plaintiffs are claiming
mesne profit from the date of filing of the suit till its handing over
the possession. The aforesaid amendment would certainly cause
prejudice to the defendant. The plaintiff ought to have claimed
the relief of mesne profit in the plaint itself. The prayer of mesne
profit is substantive prayer which can not be granted at later stage
and the prayer of plaintiff in respect of mesne profit is barred by
limitation. In support of above contentions, the advocate for
defendant relied on the following judgments:-
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i. AIR 1995 SC 1768 in case of K. Raheja Constructions Ltd.
V/s. Aliance Ministries & Ors.
ii. 1996(1) CCC 52 (H.C) in case of Sheik Peda Adam & Ors.
V/s. Shaik Adam 7 Ors.
iii. 1996 (1) CCC 260(S.C.) in case of Radhika Devi V/s.
Bajrangi Singh & Ors.
iv. AIR 1996 SC 642 in case of Muni Lal V/s. The Oriental Fire
& General Insurance Company Ltd. & Anr.
AIR 2001 SC 2607 in case of Vishwambhar & others -vs-
Laxminarayana through L.R's & others.
10. It is further argued by learned Advocate Ms. Snehal Modi for
the defendant that the plaintiff can file separate suit if, this Court
decreed the suit of the plaintifff and in that eventuality, the
plaintiff’s claim of mesne profit would be only for the period of last
preceeding 3 years. If, the present prayer of the plaintiff is
allowed, that would certainly affect to the interest of the
defendant as the amendment would relate back to the filing of the
suit., such amendement of prayer for mense profits cannot be
granted at such belated stage. In support of above contention she
relied on the following judgments :
i. (2008) 3 SCC 183 in case of Ganapati Madhav Sawant V/s.
Datur Madhav Sawant.
ii. AIR 1952 SC 358 in case of Mohd. Amin & Ors. V/s. Vakil
Ahmad & Ors.
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11. It is further argued by learned advocate for the defendant
that the proposed amendement does not goes to the root of the
matter to decide the real contraversy between the parties. Hence,
such amendment cannot be granted. The learned Advocate relied
on the judgment of Hon'ble Apex Court reported in
(2009) 10 SCC
84 in case of Revajeetu Builders and Developers -Versus-
Narayanaswamy and sons and others.
12. Per contra Ld. advoate Shri.Pravin Shah for the plaintiffs
argued that the Court’s power to allow the amendment is wide and
can be excerised at any stage of the proceeding in the interest of
justice, unless serious injustice or irreparable loss is likely to be
caused to the other side, the Court should adopt liberal approach
and not a hypertechnical apporach. Particularly, in a case where
the other side can be compensated with cost. It is further argued
by the advocate for plaintiff that the merits of the amendment not
required to be considered while considering the application for
amendment. The proposed amendment do not change the nature
or character of the suit. In support of his submissions he has relied
on the following judgments:-
i. Civil Appeal No. 6114 of 1999 (SC) in case of State of A.P. &
others -vs- Pioneer Builders;
ii. (2006) 5 ALL MR (S.C.) 185 in case of Rajesh Kumar
Agrawal & others -vs- K.K. Modi & others
iii. 2020(1) Mh.L.J. 143(S.C.) in case of M. Revanna -vs-
Anjanamma by LR's & others.
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13. It is further argued that the present suit is filed prior to the
Amendment Act 2002. Hence, the requirement of due deligence
would not be applicable to the plaintiff and the amendment needs
to be allowed. The plaintiff already made a substantive prayer in
respect of the possesion and the prayer of mesne profit is
consequential and same needs to be allowed without going into
the merits of the amendment. The proposed amendement is not
barred by law of limitation. The cause of action for claiming mesen
profits would arose if the suit is decreed in favour of Plaintiffs. In
support of his argument, he has relied on following judgment:
i. 2013 (4) Mh.L.J. 940 in case of Rohit Kapadia V/s. Perviz
Modi
ii. 2001 Vol. 103 (4) Bom.L.R. 534 in case of M/s Mudra Salt &
Chemical Industries V/s. The Collector, District Thane &
others.
iii. 2012(2) Mh.L.J. 881 in case of Deepak Dwarkaprasad Gupta
& others V/s.M/s Sitaram Enterprises;
iv. 2004 (5) ALL MR (S.C.)1022 in case of Pankaja & others
V/s.Yellappa by LR's & others
v. 1986 Mh.L.J. 299 in case of Chandrakant Ganpatrao Deshkar
V/s. Ramchandra Pralhad Bhakre
14. I have perused the aforesaid judgments. It is well settled law
that at the time of considering the application for amendment, the
court need not require to look into the merits of the amendement.
The instant suit is filed before the amendment Act 2002. Hence,
test of due diligence would not apply.
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15. The Plaintiffs filed present suit for possession of suit
premises. The evidence of the Plaintiffs is yet to begin. The learned
Advocate for defendant citated order dated 22.07.2013 passed by
Hon'ble Bombay High Court in Writ Petition No.1910 of 2013,
involving the same issue as in the present matter. In the said
matter, the Hon'ble High Court disposed of the petition by allowing
the amendment and by keeping open the issue of limition. In the
present matter as the suit is not finally disposed of, in my view,
looking to the aforesaid order, the Plaintiffs can be allowed to
carry out amendment in respect of prayer for mense profit. The
issue whether such relief is within limitation or not shall be
decided along with the other issues. Further the issue whether the
plaintiffs are entitled for the mense profits from the date of filling
of the suit or from the date of application can be decided at the
end of the trial. Thus, in view of the above, I proceed to pass the
following order.
ORDER
1. Chamber Summons No. 2020 of 2019 is allowed in terms of
prayer clause (a) and (b).
2. The plaintiff to carry out necessary amendments as per
schedule within 14 days from the date of order or within 14
days after regularisation of Court working.
3. Parties to bear their own cost.
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4. Chamber Summons No. 2020 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge
City Civil & Sessions Court
Dated : 29.08.2020 Gr. Bombay.
Dictated on : 29.08.2020
Transcribed on : 29.08.2020
Draft submitted on : 29.08.2020
Checked on : 29.08.2020
Signed on : 29.08.2020
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10 Date 29.08.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29/08/2020 at 2.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
29/08/2020
JUDGMENT/ORDER signed by
P.O. on
29/08/2020
JUDGMENT/ORDER uploaded
on
29/08/2020
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