Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010120272019
Presented on : 23-11-2019
Registered on : 23-11-2019
Decided on : 15-03-2021
Duration : 1 years, 3 months, 22 days
IN THE COURT OF
COURT 1 CITY CIVIL JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
CHAMBER SUMMONS/102118/2019
IN
SUIT NO.2286 OF 2018
Smt. Omvati Liladhar Garg
Age: 66
Occupation : Housewife
Address: Room No. 3454,
1st Floor, Build No. 99,
A Wing, Sukh Sagar CHS Ltd,
S. G. Bave Marg, Nehru Nagar,
Kurla East, Mumbai - 400024. ..Plaintiff
Versus
Mr. Ashok Mahadeo Naik and Anr. ..Defendants
Advocate for : Santraj Rampyare Patel for plaintiff
Advocate for : Mr.Pal for defendant no.2
ORAL ORDER DELIVERED ON 15/03/2021
1. By this chamber summons plaintiff interalia wish to amend
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the plaint.
2. The learned counsel for the plaintiff contended that the
defendant No. 2 without following due process and in
connivance with the corrupt BMC officers and local police,
demolished the suit property and erected ground +4 stoie
building while the original property was ground +1. The
defendant No. 2 has constructed about 13 rooms on the
ground floor and same on the upper floors. The original suit
property was consisting of 5 shops on the ground floor and
the same on the 1st floor. The said facts are the subsequent
events after filing of the suit and therefore, those are
required to be brought on the record.
3. The defender No. 2 opposed the chamber summons on the
count that the plaintiff is trying to set out a new case. He
would submit that by amending the plaint will not be helpful
in any case for determining the real question and controversy
in the present matter. The proposed amendment is
harassment to the defendant and therefore, prayed for
dismissal of chamber summons.
4. It is settled position that the court is not expected to go to
the merits of the amendments. But at the same time the
limited enquiry is whether the proposed amendment changes
the nature of the suit, malafide and prejudicial to the interest
of the adverse party. By the proposed amendment, plaintiff
wish to incorporate the subsequent events in respect of
subject matter occurred pending the disposal of the suit. It is
cardinal principle that a cause of action for a suit must
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precede the suit. But once a suit is so instituted on a pre-suit
cause of action, the Court cannot shut its eyes to, but must
take note of, all such post suit developments which are likely
to affect the question to be determined in the suit. Thus, the
plaintiff is coming with the case of demolition of the suit
premises pending the disposal of the suit which in fact is also
not denied by the defendant No. 2 in his reply. The proposed
amendment will subserve the ends of justice and shorten the
litigation. The trial has not commenced therefore, bar under
the proviso to Order VI Rule 17 will not be applicable. No
prejudice would cause to the defendants. The proposed
amendment is in respect of the subsequent event and
therefore, the criteria of changing the nature of the suit will
not have to be taken into account. The proposed
amendments are not malafide and nothing in that regard has
been pointed out by the defendants. Thus, in order to avoid
multiplicity of the proceedings and complications the present
chamber summons needs consideration and hence it is
expedient to pass following order: –
ORDER
1. Chamber summons No. 2118/19 is made absolute in
terms of prayer clause (a) and (b).
2. The plaintiff to carry out necessary amendment as per
schedule to Ch/sum within 14 days from the date of this
order.
3. Plaintiff to supply the amended copy of plaint to the
defendants and also to tender one copy on the record.
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4. Costs in the cause.
(M.SALMAN AZMI)
Judge,
Date: 15.03.2021 City Civil Court, Gr.Bombay
Dictated on : 15/03/2021
Typed on : 15/03/2021
Signed on : 18/03/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/03/2021 at 4.00 pm.
Mrs.T.C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
15/3/21
Judgment and order signed by P.O. 18/3/21
Judgment/order uploaded on 18/03/2021
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