Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.2067/19 (L.C.S. No.1121/11)
MHCC010117232019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS No.2067 OF 2019
IN
LONG CAUSE SUIT No.1121/2011
Mr. Navinchandra s/o. Kheysi Shah … Plaintiff
- Versus -
The Commissioner
& 5 Ors. ... Defendants
AND
1] Mr. Tanmay s/o. Ashok Vernekar
2] The Court Receiver … Proposed
defendants
Appearance :-
Mr. J. P. Thakkar, Advocate for plaintiff.
Mr. Yadav with Mr. Suryavanshi, Advocates for defendant/M. C. G. M.
Mr. Lad h/f. Mr. Mestry, Advocate for defendants No.4, 5/A and B.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 28/02/2024.
O R D E R
. The plaintiff took out present Chamber Summons for
amendment in the plaint under Order-VI Rule-17 of The Code of Civil
Procedure (in short the C. P. C.) as per the Schedule annexed to it.
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2 C/S. No.2067/19 (L.C.S. No.1121/11)
2] It is contended by the plaintiff that the plaintiff has filed
suit challenging notice under Section 351 of The Mumbai Municipal
Corporation Act (in short the M. M. C. Act) and other reliefs. By way of
proposed amendment the plaintiff is seeking permission to add
contention that defendant B. M. C. has not examined the plan and
considered the documents and passed Speaking Order. The plaintiff is
seeking further permission to add contention in respect that plaintiff's
shop is approved as per the plan of Laxmi Market/Bharat Lodge
property. The plaintiff is further seeking permission to add contention in
respect of issuance of a common notice mechanically and without
application of mind.
3] It is further stated that the proposed amendment is just and
necessary for complete and effective adjudication of dispute and no
prejudice would be caused to other side and there is no likely to change
nature of suit if proposed amendment is allowed.
4] Defendants No.4, 5/A and B have opposed Chamber
Summons by filing reply. Defendants No.1 to 3 B. M. C. also opposed
Chamber Summons. It is contended by defendants that Chamber
Summons is not maintainable as the proposed amendment challenging
constitutionality of Section 351 of the M. M. C. Act is not within the
jurisdiction of this Court and the plaintiff has made vague averments
without any foundation. The plaintiff is trying to improve his case by
filling up loop wholes. Suit is very old and Chamber Summons has been
filed after lapse of 8 years and there is delay which is not explained.
The proposed amendment is not in respect of subsequent event. Hence
Chamber Summons deserves to be dismissed.
4] The plaintiff filed rejoinder affidavit dated 27/9/2023.
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3 C/S. No.2067/19 (L.C.S. No.1121/11)
5] Perused Chamber Summons, affidavit in support thereto,
reply, record and proceeding and heard parties.
6] The plaintiff has taken out this Chamber Summons for
amendment in the plaint. By way of proposed amendment the plaintiff
is seeking permission to incorporate contention that defendant B. M. C.
has not examined the plan, considered the documents and passed
Speaking Order without considering the documents. The plaintiff is also
seeking permission to add contention in respect that plaintiff's shop is
approved as per the plan of Laxmi Market/Bharat Lodge property. The
plaintiff is further seeking permission to add contention in respect of
issuance of a common notice mechanically and without application of
mind. The defendants opposed Chamber Summons on the ground of
jurisdiction and delay. The law is well settled on the point of
amendment in the pleading. It is well settled that the Court should be
liberal while considering the application for amendment and
amendment at pre-trial stage should normally be allowed which are
necessary for complete and effective adjudication of dispute. It is also
well settled that while dealing application for amendment merits of
amendment cannot be considered. The Hon'ble Apex Court in the case
of Life Insurance Corporation of India versus Sanjeev Builders Private
Limited & Anr. [2022 LiveLaw (SC) 729] held that the Court must be
extremely liberal if the amendment is necessary for complete and
effective adjudication of dispute and no prejudice would be caused to
other side and this is mandatory as per the provisions of Order-VI Rule-
17 of the C. P. C. It is well settled that the amendment in the pleading
cannot be refused on ground of delay and negligence as the Court
always use/grant leave to amend pleading even there is some delay or
carelessness on the part of party as power to amend pleadings is
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4 C/S. No.2067/19 (L.C.S. No.1121/11)
intended to serve the ends of justice and is not governed by any such
narrow and technical limitations.
6] Suit is at a pre-trial stage and proposed amendment is just
and necessary for complete and effective adjudication of dispute. So
also nature of suit is not likely to be changed if proposed amendment is
allowed and no prejudice would be caused to other side. Resultantly, I
pass following order :-
O R D E R
1] Chamber Summons is hereby made absolute in terms of prayer
clause (a).
2] The plaintiff to carry out necessary amendment till next date and
shall serve copy of amendment plaint to other side.
Date : 28/02/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
07/03/2024 01:10 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 28/02/2024
ORDER Typed on 05/03/2024
ORDER signed by P. O. on 06/03/2024
ORDER uploaded on 07/03/2024
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