Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.2037 OF 2019
(CNR NO.MHCC010115692019 )
IN
S. C. SUIT NO. 3770 OF 2013
Anantkumar Asharam Jain ).. Plaintiff
V/s.
Chhotelal Rajaram Yadav & Anr. )..Defendants
And
Brihanmumbai Mahanagarpalika & Ors. )..Respondents
Appearance :
Ld. Adv. A. A. Jani for plaintiff.
Ld. Adv. Vipin Pathak for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 21/02/2023.
ORDER
1 This chamber summons is taken out by the plaintiff for
amendment in the plaint with addition of proposed defendants as
defendant Nos.3 to 5 in the suit with consequential amendment to
incorporate the pleadings in respect of these defendants and to insert
the prayer clause as per the schedule.
2 The plaintiff has filed the suit against the defendants
claiming that he is the landlord of the property known as Anjana Estate
situated at Village Road, Bhandup (West), Mumbai – 400 078 and the
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defendants are monthly tenants of the plaintiff in respect of Shop No.1,
Anjana Estate, which is admeasuring area of 10' X 20' with height of
11' i.e. 200 sq.ft., as per the specification mentioned in Para No.1 of
the plaint. He further contended that on 23/09/2013, the defendants
started unauthorised and illegal repairs, renovation, construction,
extension on the first floor of the suit premises, in violation of law.
The plaintiff had filed complaint about the illegal acts of the
defendants with the Municipal Commissioner of Brihanmumbai
Mahanagarpalika and other authorities, but no action was taken
against the defendants, therefore, he filed the suit against the
defendants for restraining them to carry out the repairs, renovation,
extension in the suit property.
3 Now, by way of this chamber summons, the plaintiff is
desiring to add Brihanmumbai Mahanagarpalika, the Commissioner of
Police and Maharashtra State Electricity Distribution Company Limited
as defendants to the suit and to incorporate the pleadings and prayers
in the plaint.
4 The defendant No.1 resisted the contention by filing reply
contending that the contents of chamber summons are false, frivolous
and baseless. It is further contended that it is a Civil Suit and in a Civil
dispute, the proposed defendants cannot be made party to the suit. He
further contended that the chamber summons is beyond jurisdiction
and prayed for rejection of chamber summons.
5 Heard rival parties at length.
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6 It reveals from the pleading that it is a dispute between
landlord and tenant. In case of any illegal repairs, being the landlord,
the plaintiff may initiate the suit against the defendants for restraining
them from carrying repairs but there is no necessity to add the
proposed defendants.
7 The averments of plaint and schedule in chambers
summons shows that the plaintiff has no cause of action to add the
proposed defendants as party to the suit. There is not dispute between
the proposed defendants and plaintiff. He is just seeking amendment
to make constrain the proposed defendants to take action against the
defendants. On perusal of schedule of amendment in Para No.5, the
plaintiff has sought the addition of prayers directing the defendants
Brihanmumbai Mahanagarpalika, the Commissioner of Police and
Maharashtra State Electricity Distribution Company Limited, to register
FIR against the defendants. Thus, by way of amendment, plaintiff is
trying to seek the relief which can be granted under Section 156 of
Code of Criminal Procedure, consequently, he wants to set the criminal
law in motion through the Civil Court. The averments of plaint
disclose a civil dispute between the plaintiff and defendants, this Court
being a Civil Court cannot pass the order which ought to have been
passed by the Ld. Magistrate or Criminal Court as allowing the
amendment would amount to take the criminal complaint on record.
8 I am fortified by the judgment passed by the Hon'ble
Bombay High Court in case of Harishchandra s/o. Vishwanath
Chavan & Anr. Vs State of Maharashtra & Anr. reported in 2017 ALL
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MR (Cri)1910. The facts of the cited case are similar to that of the
instant case, where on the application of a party, order of investigation
under Section 156(3) of Code of Criminal Procedure was passed by
Civil Court while dealing with the Civil Suit. When the matter came up
before the Hon'ble Bombay High Court, the Hon'ble Bombay High
Court has opined that the Civil Court has no authority to pass such
order and further opined that the person applying for issuance of due
process under the complaint, may file a complaint before the Ld.
Magistrate and set aside the order passed by the Civil Court.
9 Considering the above facts and circumstances of the case
and the observations made in the sited case supra, I am of the view
that the plaintiff is not entitled for the amendment and addition of
party as prayed for. Consequently, I proceed to pass the following
order.
O R D E R
1. Chamber Summon No.2037/2019 in S.C. Suit No.3770/2013, is
hereby dismissed.
2. Chamber summons disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 21/02/2023 C.R. No.03, Gr. Mumbai
Dictated on : 21/02/2023
Transcribed on : 21/02/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
22/02/2023
at about 3.00 p.m.
(Ms. Sonali Sudhir Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 21/02/2023
Order signed by Hon'ble Judge on : 22/02/2023
Order uploaded on : 22/02/2023
at about 3.00 p.m.
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