Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.35/2019 .. 1.. Suit No.1960/2018
CNR No.MHCC010002752019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.35 OF 2019
IN
SUIT NO.1960 OF 2018
Ganesh Narayan Alke & Anr. .. Applicants
In the matter between
Ganesh Narayan Alke & Anr. .. Plaintiffs
Versus
Mrs. Jayanti Somnath Amin and others .. Defendants
Mr. Chetan Yadav, advocate for plaintiffs
Mrs. Sushma Singh, advocate for defendant No.1
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 22nd February, 2019
ORAL ORDER
Chamber Summons is taken out by plaintiffs for amendment of
plaint as per schedule annexed with it.
2. It is the contention of plaintiffs that defendant No.1 filed her
written statement on 21.08.2018 in present suit and from it plaintiffs
got knowledge that defendant No.1 had illegally got her name added in
suit licence by submitting partnership deed allegedly executed between
late Appi Narayan Alke and defendant No.1 and thereafter in view of
Deed of Dissolution dated 04.05.2013 late Appi Narayan Alke retired
from Firm 'M/s. Narayani Sales Corporation' and defendant No.1
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C/S No.35/2019 .. 2.. Suit No.1960/2018
continued with the business as continuing partner. It is further
contended that late Appi Narayan Alke had no right, title and interest to
enter into partnership with defendant No.1 to add her name in suit
licence. More so, her name was added without following the provision
of Bombay Prohibition Act. Accordingly, plaintiffs contended that
proposed amendment is necessary for determining real controversy
between the parties and prayed for allowing chamber summons.
3. Defendant No.1 filed reply and resisted chamber summons
mainly on the count that proposed amendments were within the
knowledge of plaintiffs at the time of filing suit but same were
deliberately suppressed. Proposed amendments as per Item Nos.(i) to
(x) of proposed para 21 of schedule are in respect of correspondence
exchanged between defendant no.1, her late mother with Collector of
Mumbai, State Excise Department, so it need not required to be
reproduced by seeking amendment. More so, neither Excise Authorities
nor State of Maharashtra has been joined in the suit and nor any acts,
action exercised by the Authorities by virtue of powers, functions and
duties casts upon them under the provisions of Bombay Prohibition Act,
1949 are challenged in the present suit or in separate proceeding. In
light of these contentions it is contended that chamber summons taken
out be dismissed.
4. Heard respective counsel for parties. I have carefully gone
through chamber summons, affidavit in support of it and reply to
chamber summons.
5. So far as proposed amendments in Schedule para 1 is
concerned, it relate to correspondence made by late Appi Narayan Alke
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C/S No.35/2019 .. 3.. Suit No.1960/2018
with Collector and proceeding taken out by Collector relating to
publication of notice and order passed. More so, plaintiffs want to
incorporate by proposed amendment that transfer of Licence in the
name of defendant No.1 is not as per procedure laid down by
Maharashtra Prohibition Act, 1949. In my view, proposed amendments
in para 1 of Schedule annexed to chamber summons cannot be allowed
as Collector, Mumbai, State Excise Department is not party to the
present suit. Action of Authority can not be questioned without making
such Authority as party to the proceeding. Question of Interse rights
between the parties to the alleged business is different than the
question of grant of licence of liquor Shop in favour of any of the parties
to the suit. More so, proposed amendments in para 1 of Schedule are
not necessary for deciding the controversy between the parties. So far as
amendments in paras 4 and 10 are concerned same are consequential to
proposed amendments in para 1 of Schedule and when I am not
inclined to grant same, for these reasons proposed amendments in paras
4 and 10 cannot be allowed.
6. Now as regarding proposed amendments in paras 2, 3, 5 to 9
and 11 to 15 of Schedule annexed with chamber summons are
concerned the plaintiffs want to elaborate about their claim to share
and rights in particular business. At this stage merits of aforesaid
amendments can not be considered. In my view, the proposed
amendments paras 2, 3, 5 to 9 and 11 to 15 of Schedule do not change
nature of suit and are necessary. Therefore, same deserves to be
allowed.
In light of discussion made above chamber summons deserves to
be partly allowed. Hence following order.
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C/S No.35/2019 .. 4.. Suit No.1960/2018
ORDER
1. Chamber Summons No.35 of 2019 is partly allowed in following
terms :
Plaintiffs are permitted to carry out proposed amendments in
paras No.2, 3, 5 to 9 and 11 to 15 of schedule annexed to chamber
summons within period of two weeks from the date of this order.
On carrying out said amendments, they have to supply copy of
amended plaint to defendants.
2. Accordingly, chamber summons is disposed off
(M. T. Asim)
Judge
Date : 22.02.2019 Gr. Bombay
Typed on : 22.02.2019
HHJ signed on :
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C/S No.35/2019 .. 5.. Suit No.1960/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.02.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
22.02.2019
JUDGMENT/ORDER signed by P.O.
on
25.02.2019
JUDGMENT/ORDER uploaded on 25.02.2019
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