Final Order 1

Order Details: Other
Pdf Text: 1 Review Petition No.24/2020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
REVIEW PETITION NO.24 OF 2020
SUIT NO. 7449 OF 1980
(H.C. SUIT NO. 2011 OF 1980)
(CNR NO.MH CCO10001552020)
Mangal Prabha Cooperative Housing
Society Limited,
a society registered under the
Maharashtra Cooperative Societies Act,1960
under No. BOM/HSG/K/E/7057 of 1983
having its Registered Office at B/7, First Floor,
Gujarati Mandal Cross Road, Vile Parle(E), ...Petitioner
Mumbai400 057. (orig. plaintiff no.9)
Versus
1. M/s. Dave & Associates,
a firm carrying on business at 11, …. Respondent
Narayan Dhuru Cross Lane, (Orig. defendant no.1)
Mumbai3
1A. Kapil Dave (Since deceased) (Orig. defendant no.1A)
2. Ramaben Kapil Dave,
Age: 82 years, wife of Kapil Dave,
R/at:
27/28, 6th Floor, BWing,
Gujarati Mandal, Cross Road No.4,
N.P. Thakkar Road, Near Rajapuria Hall,
Vile Parle(EAst), Mumbai 400 057.
3. Piram Kapil Dave,
daughter of Kapil Dave,
Age: 61 years,
R/at:
27/28, 6th Floor, BWing,
Gujarati Mandal, Cross Road No.4,
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N.P. Thakkar Road, Near Rajapuria Hall,
Vile Parle(EAst), Mumbai 400 057.
4. Atul Kapil Dave,
Age: 58 years, Son of Kapil Dave,
R/at:
27/28, 6th Floor, BWing,
Gujarati Mandal, Cross Road No.4,
N.P. Thakkar Road, Near Rajapuria Hall,
Vile Parle(EAst), Mumbai 400 057.
Adult Indian Inhabitant
5. Mamta Kapil Dave,
daughter of Kapil Dave
Age 49 years,
R/at:
27/28, 6th Floor, BWing,
Gujarati Mandal, Cross Road No.4,
N.P. Thakkar Road, Near Rajapuria Hall,
Vile Parle(EAst), Mumbai 400 057.
6. Maya Kothari
Age 53 years, daughter of Kapil Dave,
…..Respondents
R/at:
27/28, 6th Floor, BWing,
Gujarati Mandal, Cross Road No.4,
N.P. Thakkar Road, Near Rajapuria Hall,
Vile Parle(EAst), Mumbai 400 057.
7. Nurani Sundarier Chudamani … Respondent
No.7
of Bombay Indian Inhabitant, (orig. plaintiff no.1)
R/at:
11, Durga Bhavan, Ground Floor,
Subhash Road, Vile Parle (East),
Mumbai400 057.
8. Dineshchandra Mohanlal Desai … Respondent
No.8
of Bombay Indian Inhabitant, (Orig. plaintiff no.2)
R/at,
R.No. 15, 2nd Floor, Vithal Kunj No.2,
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V.P. Road, Andheri(West), Mumbai 400 057.
9. Jyothi Dhirubhai Doshi … Respondent
No.9
of Bombay Indian Inhabitant, (orig. plaintiff no.3)
R/at,:
Chetan Kunj, Block No.5,
Gujarathi Mandal Road, Vile Parle(East),
Mumbai400 057.
10. Lila Dinesh Oza, … Respondent No.10
of Bombay Indian Inhabitant, (Orig. plaintiff no.6)
R/at:
Navswarup Coop Hsg. Soc.
Dixit Road Extention, Vile Parle(East),
Mumbai 400 057.
11. Ashok Chandulal Mehta
of Bombay Indian Inhabitant,
R/at:
C/o. M.D. Deshpande, 2319A, … Respondent No.11
Unnath Nagar, S.V. Road, Goregaon(West), (Orig. plaintiff
no.11)
Mumbai 400 062.
Ld. advocate Mr. Athavle for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 16th December, 2020.
ORAL JUDGMENT
1. The petitioner was the original plaintiff no.9 in the suit
filed against the respondent no.1 a partnership firm. Respondent no.2
to 6 are the legal heir's of original defendants no. 1A, who died on
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26.9.2017. The respondent no.1 constructed the building of the
petitioner society. Initially the plan of the construction of the society
building was submitted. The plot of the petitioner society was 411 with
an area 2044.20 sq mtr. The plot was subsequently revised with an area
2366.22 sq. mtr. and thereby again the area was revised to 2321.80 sq.
mtr. The construction of the society building was completed in the year
1979. The respondent no.1 did not convey the plot alongwith the
building to the society. The petitioner filed the suit bearing Suit
No.2011 of 1980 in the High Court, Bombay seeking conveyance of the
plot and the building to the petitioner. The said suit was transferred to
this court and was renumbered as S.C. Suit No.7449 of 1980. In or
about the year 1990, the final plot number of the society was changed
from 411 to 397. The plot which was previously 2044.31 sq.mtr. was
also subsequently changed to 2321.80 sq. meters. Thus, as on date of
judgment i.e. 29.1.2015, the final plot number on which the building of
the petitioner society is standing was F.P.No. 397 and the area thereof
was 2321.80 sq. mtr. During the pendency of the suit the changed final
plot number and plot area due to oversight the petitioner society did
not bring on record. Thus, the petitioner society prayed for review of
the judgment for carrying out the necessary amendment, so as to
correctly describe the plot.
2. The Ld. Counsel for the petitioner has filed bunch of documents
alongwith Exh.2, those are obtained under the Right to Information Act
from the office of Municipal Corporation, Gr. Mumbai. On perusal of
those documents more particularly the documents at Sr. No.5 filed with
the list Exh.2, it appears that the final plot number is 397 with an area
2321.80. The said change in the final plot and area was not
incorporated in the plaint by way of amendment and therefore, decree
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was passed on the basis on the plot number and area as described in
plaint. The changes does not effect the substantial right of the parties
and thus it appears to be an omission on the part of the plaintiff's in
that suit. The respondents during the arguments submitted that they
have no objection for review of the judgment to the extent to the
change of final plot number and area. The petition is within the ambit
of the scope of review. It appears that there is some mistake or error on
the part of the plaintiff to amend the plaint. The same cannot be
impediment in giving effect to the decree. Hence, the judgment and
decree to that extent is required to be reviewed. Therefore, it is
expedient to pass following order:
ORDER
1. Review Petition No.24/20 is allowed.
2. The operative part of the judgment dated 29.01.2015 and decree
dated 01.04.2015 be amended and after the word “building on”, the
words “new final plot no.397, new area 2321.80 sq. mtrs.” be added
and before the word “final plot”, word “old” be added and also the word
“old” be added before the word “area” and after adding word “old”
thereafter from the word “old” to the figure “2044.20 sq. mtrs.” be
bracketed as “(old final plot no.411, old area 2044.20 sq. mtrs.)”.
3. After carrying out the amendment in the operative part of the
judgment and decree, Sheristedar to get it attested from the Court.
4. No order as to costs.
5. Review Petition No.24/20 is disposed of accordingly.
(M.SALMAN AZMI)
Judge,
Date: 16.12.2020 City Civil Court, Gr.Bombay
Dictated on: 16.12.2020
Transcribed on: 18.12.2020
Signed on: 23.12.2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
24/12/2020 at 4.00 pm. Ms.Kashmira Rana
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
16.12.2020
Judgment and order signed by P.O. 24.12.2020
Judgment/order uploaded on 24.12.2020
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