Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 215719 IN SUIT 150407
MHCC010124902019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 2157 OF 2019
IN
SUIT NO. 1504 OF 2007
Paneer Supayya Devendra & Others ] ...Plaintiffs.
Versus
MHADA & Others ]....Defendants.
Appearance:
Ld Advocate Vinod Mishra for Plaintiff.
Ld Advocate Mangal Kadam for Defendant No.1/MHADA.
Ld Advocate Som Singh @ Chandramore for Defendant No.3/MEGM.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 25/8/2022
ORAL ORDER
1) Plaintiffs have taken out present chamber summons for
allowing them to amend the plaint as per schedule.
2) Perused the chamber summons, affidavit in support of
chamber summons, affidavit in reply of defendant No.3 and record.
Heard argument advanced by Ld Advocate for plaintiff and Ld Advocate
for defendant No.3. As the other defendants failed to advance their
arguments they could not be heard.
3) Ld Advocate for plaintiff argued that by the proposed
amendment plaintiff wants to bring on record the subsequent
developments about the issuance of notice dtd.16/11/19 u/s.314 r/w
sec.394 of MMC Act by the defendant No.3 to plaintiff No.1(a), 7 and 24
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illegally and plaintiffs want to incorporate the prayer for declaration that
the said notice dtd.16/11/19 is illegal and for permanent injunction for
restraining defendant No.3 from taking any steps in pursuance of the
said notice. The proposed amendment is necessary for determining the
real controversy between the parties.
4) On the other hand Ld Advocate for defendant No.3 argued
that proposed amendment will change nature of suit. Notice structure
therein is different than suit structures. As the plaintiff and other
occupants have already filed a separate suit and remedy of filing
separate suit is available, the proposed amendment is not necessary. The
present chamber summons is abuse of process of law. Therefore, Ld
Advocate for defendant No.3 submitted that notice of motion be
dismissed.
5) From the schedule of the amendment it appears that by the
proposed amendment plaintiff want to challenge the notice
dtd.16/11/19 issued by defendant No.3 u/s. 314 r/w 394 (4) of MMC
Act and want to add prayer for declaration that the said notice is illegal
and prayer for permanent injunction restraining defendant No.3 from
taking any steps pursuant to impugned notice. From the perusal of copy
of impugned notice at Exh.P it appears that the notice structure therein
is different and subject matter of the said notice is different than the
subject matter of the present suit. The present suit is for declaration that
plaintiffs being occupants of the suit premises/structures are entitled for
rehabilitation under Regulation 33(10) of the Development Control
Regulation. Thus, the cause of action for the present suit and cause of
action for proposed amendment is entirely different and separate. The
proposed amendment therefore is likely to change the nature of the
present suit. The plaintiffs are having remedy to file a separate suit
challenging the impugned notice. As per affidavit in reply some of the
plaintiffs have filed the separate suit for challenging the notice
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dtd.16/11/19. Therefore, from the matter on record the proposed
amendment does not appear necessary for deciding the real controversy
between the parties in the present suit. The proposed amendment is
likely to change the nature of the suit. Considering the above facts and
affidavit in reply of the defendant No.3 the proposed amendment also
does not appear to be bonafide and therefore, it is likely to be cause
prejudice to the defendants.
6) Considering the matter on record and above discussion
court find that the proposed amendment is not necessary for deciding
the real controversy between the parties in the suit and it is likely to
cause prejudice to the defendants. Therefore, the present chamber
summons is liable to be dismissed. Therefore, court proceeds to pass the
following order:
ORDER
1) Chamber Summons No. 2157 of 2019 is dismissed.
2) Chamber Summons No. 2157 of 2019 is disposed off accordingly.
Date : 25/8/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on:25/8/2022.
Typed on : 26/8/2022.
Checked on :29/8/2022.
Signed on :29/8/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/8/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
25/8/2022.
JUDGMENT/ORDER signed by P.O.
on
29/8/2022.
JUDGMENT/ORDER uploaded on 30/8/2022.
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