: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1414 OF 2008 IN SUIT NO.1358 OF 1989 Commercial Chambers Tenants Association & Ors. .. Plaintiffs V/s. Mohanlal Ghanshamdas Kukreja & Ors. .. Defendants ..... Ms. S.I. Shah i/by S.I. Shah & Co. for the plaintiffs Mr. P.N. Ganwani i/by A.V. Jain for the defendants ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 10th AUGUST, 2009. P.C. : 1. This is the plaintiffs chamber summons for amendment of the plaint. The plaintiff has set down the schedule of amendment to the chamber summons and in the affidavit in support, it is contended that the suit is pending in this Court and while it is true that it is ripe for recording of evidence all that is prayed is that the premises in the suit were in dilapidated condition and required urgent repairs and reconstruction. Since defendant Nos.1 and 2 were not co-operating in the matter and therefore the plaintiffs association came together and prayed for reliefs by filing the suit. During the pendency of the : 2 : suit, the reconstruction work has been completed and defendant Nos. 1 and 2 are in occupation of various shops on Ground, second, third and forth floors of the building. The area in their possession is about 2500 sq.ft. and their contribution towards reconstruction cost is Rs.12.50 lakhs. Having got the benefit of the reconstructed premises which are commercial, it was expected that the defendants would co-operate and contribute, but the entire expenditure has been incurred by the plaintiffs and, therefore, they are praying that the amendment be permitted to recover reconstruction costs. The reliefs are based upon development subsequent to the institution of the suit and, therefore, the amendment is necessary. However, it causes no prejudice to the parties and considering that the issues are already framed and one of the issue pertains to the reliefs on the basis of the amended plea, no prejudice would be caused to the defendant Nos. 1 and 2, if the chamber summons is allowed. The chamber summons if allowed, would assist the Court in completely resolving the controversy between the parties. 2. Mr. Ganwani appearing for the defendant Nos.1 and 2 who are opposing the chamber summons contended that the amended C.P.C. must be seen and in the backdrop of amended C.P.C., unless and until this Court is satisfied that the condition in proviso to Order 6 Rule 17 is fulfilled, the Court cannot permit any amendment. More so, when the suit : 3 : is pending from the year 1989, the matter is kept for cross-examination of the witness of the plaintiffs who has filed his affidavit of evidence. In these circumstances, the chamber summons be dismissed. 3. Having perused this chamber summons and the affidavit in support, to my mind, the amended provisions of Civil Procedure Code cannot be invoked in the suit which is filed in the year 1989. Assuming that they can be so applied or it can be otherwise pointed out that the amended pleas are incorporated belatedly, I am of the opinion that having regard to the issue being framed by the Court, plaintiffs are granted liberty to prove that defendant Nos. 1 to 4 are liable to pay the proportionate costs of the repairs / reconstruction of the suit premisses. No prejudice would be caused if the plaint is allowed to be amended by adding a prayer therein. 4. Accordingly, the chamber summons is granted to a limited extent in as much as the plaint can be permitted to be amended by adding prayer (e)-1. Further, the interest of justice would be sub-served if all pleas as raised in the affidavit in support of chamber summons and in the Schedule to Chamber Summons are allowed to be incorporated in the affidavit in Chief / evidence of any further witnesses, which are to be examined by the plaintiffs. In other words, the plaintiffs can lead evidence to prove the : 4 : issue as framed by this Court and needless to state that merely because the amendment is allowed in part does not prevent them from filing affidavits of evidence of witnesses or leading evidence in support of the amended prayer. 5. All pleas on merits of both sides including on the issue of limitation are kept open and chamber summons is made absolute in the aforesaid terms but without any order as to costs. Amendement to be carried out within a period of 3 weeks from the receipt of this order. (S.C. DHARMADHIKARI, J.)