Final Order 1

Order Details: Chamber summons
Pdf Text: CS 46-2019 in Suit No.1337 – 14 1 Date : 28.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 46 OF 2019
IN
SUIT NO.1337 OF 2014
(CNR NO.MHCC010003562019)
Salam Abdul Karim Shaikh & Ors. ..Plaintiffs
Versus
Abdul Hafiz Abdul Karim & Ors. .. Defendants
Appearances :
Adv.Mujis Khan for plaintiff present.
Adv.R.M. Nakhawa for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 28.08.2019
ORDER
1. The defendants filed instant Chamber Summons for grant of
permission to file Additional Written Statement and for framing of
Additional issue.
2. It is contended by the defendants that the plaintiff filed
present suit for the declaration as legal heirs, injunction and share
in the income of Shop No. 5 against the defendants. The
defendants filed their Written Statement on 03.07.2014 and
resisted the suit on the ground that the suit simplicitor for
injunction without prayer for possession is not maintainable. It is
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CS 46-2019 in Suit No.1337 – 14 2 Date : 28.08.2019
further contended by the defendants that the suit is barred by law
of limitation.
3. It is contended by the defendants that they wanted to bring
following documents on record :
(a) Share Certificate No. 35 of Simla House Cooperative
Housing Society Limited dated 11.01.1971 reflecting
transfer of Flat No. 101 in the name of Defendant No. 3
on 20th September, 1981, hereto annexed and marked as
Exhibit A.
(b) Share Certificate No. 39 dated 15.08.1998 of Shop No. 5
Sailesh Cooperative Housing Society Limited reflecting
transfer of 50% share in the name of Defendant No. 3
and 25% share each in the name of Defendant no. 1 and
2. Hereto annexed and marked as Exh.B.
(c) Letter dated 03rd September, 1981 from Abdul Karim to
the Simla House Cooperative Housing Society Limited
expressing his intent to transfer the right, title and
interest in Flat No. 101 to his wife Mrs. Almas Karim out
of love and affection. Hereto annexed and marked as
Exh.C.
(d) Letter dated 26.09.1981 addressed by Simla Co
operative Housing Society Ltd., to the deceased
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CS 46-2019 in Suit No.1337 – 14 3 Date : 28.08.2019
informing him about the sanction of the transfer of Flat
No. 101 in the name of Defendant No. 3. Hereto
annexed and marked as Exh.D.
(e) Registered Gift Deed dated 13.11.2001 executed
between Abdul Karim Shaikh, Doner and Smt. Almas
Abdul Karim Shaikh, Donee for 50% share in Shop No. 5
of Sailesh Cooperative Housing Society Limited. Hereto
annexed and marked as Exh.E.
(f) maintenance bills dated 01st April, 1984 and 31st August,
2018 issued by Simla House Cooperative Housing
Society Limited for Flat No. 101 in the name of
Defendant no. 3. Hereto annexed and marked as Exh. F.
(g) Maintenance Bills dated 06th January, 2011 and 01st
March, 2018 issued by Sailesh Cooperative Housing
Society Limited for Shop No. 5 in the name of Defendant
no. 3. Hereto annexed and marked as Exh.G.
4. It is submitted by the defendants that the aforesaid
documents are necessary to decide the issue involved between the
parties, those documents were not called upon to produce at the
time of deciding the Notice of Motion No. 3009 of 2016, since the
burden of proof was on plaintiff. It is contended by the defendants
that the trial is not yet commenced nor the issues are framed.
Hence, the defendants are desirous of bringing the aforesaid
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CS 46-2019 in Suit No.1337 – 14 4 Date : 28.08.2019
documents on record by way of Additional Written Statement.
5. Per contra plaintiff opposed instant Chamber Summons by
filing say on the ground that the defendants filed their Written
Statement in the month of July 2014. At the relevant time, the
aforesaid documents might be in their possession. The defendants
failed to give any explanation as to why on earlier occasion, they
did not file the said documents on record. The defendants by way
of filing Additional Written Statement is taking contrary stand to
what was stated in the earlier Written Statement. Hence, the
plaintiff contended that there is a delay in filing Additional Written
Statement and there is no reason assigned by the defendants.
Hence, on this count the Chamber Summons needs to be dismissed
with cost.
6. Heard both the sides. Perused Chamber Summons and reply.
The plaintiff filed instant suit to declare that they are legal heirs of
late Abdul Karim Shaikh and thus they are having 1/3rd share in
the income of the suit premises. The defendants by way of
Additional Written Statement, is intending to file certain
documents which are enumerated above on record. In my view,
looking to the controversy of the parties, those documents are
essential to adjudicate the present suit and to decide the rights
between the parties. Admittedly, the trial has not been
commenced. The objection of the plaintiff that the defendants by
way of Additional Written Statement is taking contrary stand, in
my view, it is well settled law that the defendants can take
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CS 46-2019 in Suit No.1337 – 14 5 Date : 28.08.2019
inconsistent stand, the plaintiff has to prove its own case. Hence,
in view of the above, in my view, the aforesaid documents are
necessary to decide the present suit. Hence, I am inclined to allow
the present Chamber Summons. Thus, I proceed to pass the
following order :
ORDER
1. Chamber Summons No. 46 of 2019 is hereby made absolute
in terms of prayer clause “a”.
2. The defendants are allowed to file additional Written
Statement alongwith the documents as per list.
3. The plaintiff is at liberty to carry out consequential
amendment.
4. Parties to bear their own cost.
5. Chamber Summons No. 46 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 28.08.2019 Greater Mumbai
Dictated on : 28.08.2019
Typed on : 28.08.2019
Draft Submitted on : 28.08.2019
Checked on : 28.08.2019
Signed on : 29.08.2019
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CS 46-2019 in Suit No.1337 – 14 6 Date : 28.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
29/08/2019 at 3.00 p.m. (Mr. N.S.Waghmare)
UPLOAD DATE AND TIME NAME OF CLERKTYPIST
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
28/08/2019
JUDGMENT/ORDER signed by P.O.
on
29/08/2019
JUDGMENT/ORDER uploaded on 29/08/2019
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