Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC01-013508-2019. .1. CH/S No.2320/2019 in
L.C. Suit No. 1528/2015.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 2320 OF 2019.
IN
L.C. SUIT NO. 1528 OF 2015.
Govindbhai Laxman Padaya and the Others. …. …. PLAINTIFFS.
V/s.
M.C.G.M. ....………………………………......….. …. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 5th December, 2022.
APPEARANCES :
Ms. Ujwala Ghodeswar, Ld. Advocate for the Plaintiffs.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiffs have taken out this Chamber Summons (for
short ‘Ch/s’.), U/O. VI Rule 17 of the Civil Procedure Code of 1908, for
amendment in the plaint, by withdrawing their claim for 9000 sq. yards
and restricting their claim for injunction for 8937 1/3 sq. yards, in view
of liberty granted by the Hon’ble High Court in A.O. No. 471 of 2019,
dtd. 27.11.2019. Perused the Ch/s., accompanying affidavit of plaintiff
No.1 and the defendant’s say. Heard both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the proposed amendment is
necessary for deciding the real question
in controversy between the parties ?…. .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
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CNR NO. : MHCC01-013508-2019. .2. CH/S No.2320/2019 in
L.C. Suit No. 1528/2015.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By filing this Ch/s., the plaintiffs' only anxiety is to bring on
record that being aggrieved by dismissal of their NM No. 2757 of 2015,
they preferred A.O. No. 471/2019, before the Hon’ble High Court. And,
in the said proceeding, the Hon’ble High Court pleased to allow them to
withdraw their claim for 9000 sq. yards with liberty to restrict the claim
for injunction for 8937 1/3 sq. yards. They were further granted liberty
to file fresh NM for an injunction. Accordingly, they filed this Ch/s. for
the necessary amendments. They supported this Ch/s. by filing copy of
the said Order in A.O. No. 471/2019. The defendant objected this Ch/s.
on the grounds that after dismissal of the said NM, in fact, the plaintiffs
are trying to fill-up lacunae by filing this Ch/s..
04. Having considered the rival submissions, at the out-set, it is
notable that by filing this suit, the plaintiffs challenged the defendant's
action from making any construction, transit camp or garden in the suit
property admeasuring 8937 sq. yards and 9000 sq. yards total 17937 sq.
yards. It seems that after dismissal of the initial NM, they preferred A.O.
before the Hon’ble High Court and withdrew the same with a liberty to
file the fresh NM by restricting their claim for injunction for 8937 1/3
sq. yards area. The suit is at initial stage, where the trial is yet to begin.
The proposed amendment is formal in nature and in view of the leave
granted by the Hon’ble High Court in the said A.O.. On this background,
to decide the real question in controversy between the parties, I am of
the opinion that the proposed amendment needs to be allowed. Hence, I
answered point No.1 in the affirmative and in answer to point No. 2, I
pass the following Order :
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CNR NO. : MHCC01-013508-2019. .3. CH/S No.2320/2019 in
L.C. Suit No. 1528/2015.
-: O R D E R :-
(i). Chamber Summons No. 2320/2019 is made absolute in
terms of prayer clause (a) only.
(ii). The plaintiffs are called upon to carry out the proposed
amendment in the cause title of the plaint, within two
weeks from the passing of this Order, and to file copy of
amended plaint simultaneously.
(iii). Chamber Summons No. 2320/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 05.12.2022. City Civil Court, Mumbai.
Dictated on : 05.12.2022.
Transcribed on : 06.12.2022.
Checked and Signed on : 08.12.2022.
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CNR NO. : MHCC01-013508-2019. .4. CH/S No.2320/2019 in
L.C. Suit No. 1528/2015.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10.12.2022 at 4.15 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 05.12.2022.
Judgment/Order signed by P.O. on 08.12.2022.
Judgment/Order uploaded on 10.12.2022.
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