Final Order 1

Order Details: Chamber summons
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MHCC010126602019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 2185 OF 2019
IN
S.C. SUIT NO. 6611 OF 2004
(HIGH COURT SUIT NO.1159 OF 2004)
Dinyar Homi Aga. ...Plaintiff.
Versus
Nitin Shantaram Sagvekar and One. ...Defendants.
Advocates
Thorat for the plaintiff.
Surendra Raja for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 11th March 2021
O R D E R
Heard both parties on chamber summons taken out by
defendants for amendment in the written statement as per the schedule.
Plaintiff filed reply and opposed the chamber summons.
2. Contention of advocate for defendants is that originally the suit
was filed before the Hon'ble High Court and on the ground of pecuniary
jurisdiction, it is transferred to this Court. Advocate Kulkarni was
representing defendants before the Hon'ble High Court and he informed
defendants that the suit was dismissed and therefore defendants need
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not attend the Court. After considerable time, as copy of dismissal order
of the suit was not provided to defendants, they engaged present
advocate and came to know that suit was not dismissed but ex-parte
order was passed against defendants as earlier advocate had not filed
written statement. Then plaintiff was informed that the matter is fixed
for cross examination.
3. Then defendants took out notice of motion no.4098/2015 for
setting aside ex-parte order. Said notice of motion was allowed and
defendants filed written statement. Present plaintiff took out chamber
summons for impleading him as original plaintiff expired. Advocate for
defendants informed defendants that without serving copy of chamber
summons to defendants, plaintiff's chamber summons was made
absolute. Hence defendants had no occasion to file reply to chamber
summons of the plaintiff.
4. Original plaintiff had filed her affidavit of evidence. Present
plaintiff also filed his affidavit of evidence and relied upon certain
documents which are exhibited in the absence of defendants. Present
plaintiff relied upon Will dated 26.02.2014 executed by original plaintiff
whereby original plaintiff appointed the present plaintiff as the executor
and sole legatee with respect to suit premises.
5. Defendants are laymen and illiterate persons. Hence they do not
understand the legal terminology. Advocate for defendants explained in
Marathi, the contents of affidavit of evidence of the plaintiff. Advocate
for defendants advised defendants to take out present chamber
summons to amend written statement regarding denial and dispute of
execution of the Will dated 26.02.2014. Hence defendants took out this
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notice of motion. Thus advocate for defendants submitted that due to
lack of knowledge of defendants, they could not file chamber summons
on earlier occasions. Amendment is necessary for deciding the real
dispute between the parties. Hence he prayed for making absolute the
chamber summons in terms of prayer clause (a).
6. Contention of advocate for the plaintiff is that defendants taken
out this chamber summons belatedly with a view to delay the trial and
deprive plaintiff in obtaining possession of suit premises. After filing
written statement of defendants, issues are framed, plaintiff filed
affidavit of examination-in-chief alongwith compilation of documents.
Earlier advocate for defendants, Mr. Kulkarni appeared in the case on
18.07.2016 and 19.07.2016. Hence contention of defendants that they
were unaware of the status of the suit is not tenable. Roznama shows
that defendant no.2 attended the Court on 22.06.2018, 13.07.2018,
27.02.2019, 17.06.2019 and 24.07.2019. Advocate for defendants duly
appeared before the Court till 13.11.2019. Plaintiff amended the plaint.
It is not grievance of defendants that they have not received copy of
amended plaint. Hence contention of plaintiff that they do not know
about amendment of plaint and addition of present plaintiff in the suit
is not tenable. Chamber summons is not tenable under provisions of
Order 6, rule 17 of the C.P.C. Hence he prayed for dismissal of notice of
motion.
7. As per Order 6, rule 17 of the C.P.C., the Court may at any stage
of the proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real question in controversy between the parties. It
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also provides that no application for amendment shall be allowed after
the trial has commenced, unless the Court comes to the conclusion that
in spite of due diligence, the party could not have raised the matter
before the commencement of trial.
8. From the perusal of proceedings of the case, it appears that
defendants and their advocate were absent and case was fixed for
evidence of the plaintiff till 23.09.2014. On 23.09.2014, advocate for
present plaintiff/applicant filed chamber summons to bring him on the
record due to demise of original plaintiff on 02.04.2014. Said chamber
summons was allowed on the ground that it is within limitation. It
appears that even the written statement of defendants was not on the
record, case is prolonged on behalf of the plaintiff on several occasions.
9. Suit is for declaration, possession and permanent injunction
restraining defendants from entering into the suit premises on the basis
of agreement of tenancy dated 12.07.1996 and affidavit dated
13.03.2003. From the perusal of the schedule attached to the affidavit
in support of chamber summons, it appears that defendant want to
deny the rights alleged to be accrued to the present plaintiff by virtue of
Will dated 26.02.2014 executed by the original plaintiff in favour of
present plaintiff. Plaintiff amended the plaint and relied upon the Will
dated 26.02.2014. Proposed amendment is only denial to the amended
pleadings of the plaintiff. It neither change the nature of suit nor
defence nor take away the rights, if any, accrued to the plaintiff on the
basis of Will.
10. Reasons given by defendants that they are not knowing legal
terminology and effect of Will in the suit cannot be disbelieved. It is
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well settled principle regarding amendment of pleadings that even if,
such application for amendment is filed belatedly, such belated
amendment cannot be refused if it is found that for deciding the real
controversy between the parties, it is necessary and such amendment
can be allowed on payment of costs. Under the facts, circumstances and
considering the nature of suit, chamber summons is liable to be
allowed. However, admittedly defendants taken out present chamber
summons for amendment belatedly, hence plaintiff needs to be
compensated in terms of money. In the result, following order.
O R D E R
1. Chamber summons no.2185 of 2019 is allowed and made
absolute in terms of prayer clause (a) subject to cost of Rs.5,000/- to be
paid to the plaintiff by defendants before next date.
2. After depositing the costs, defendants shall carry out
amendment within 14 days.
3. Chamber summons no.2185 of 2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 11.03.2021 Gr. Mumbai.
Typed on : 11.03.2021
HHJ signed on : 11.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATE 11.03.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
11.03.2021
JUDGMENT/ORDER signed by P.O.
on
11.03.2021
JUDGMENT/ORDER uploaded on 11.03.2021
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