Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
CNR No.MHCC010004632019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.158 OF 2019
IN
SUIT NO.332 OF 1991
1. Amratlal Narbheram Shah
2. Mukund Amratlal Shah
3. Vanita Pravin Shah .. Plaintiffs
Versus
1. Amarchand C. Agarwal
1(a) Gitadevi Amarchand Agarwal
1(b) Jagmohan Amarchand Agarwal
1(c) Balmohan Amarchand Agarwal
1(d) Uma Bajaj
1(e) Umang Kejriwala
2. M/s.Assam Wood Products Pvt. Ltd. .. Defendants
Advocate Vyas for plaintiff
Advocate Amin for defendant nos.1(a) to 1(e).
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 20th March, 2019
ORAL ORDER
Notice of motion is taken out by defendant Nos.1(a) to 1(e)
making prayer to amend and/or frame additional issues as set out in
Schedule annexed to notice of motion.
2. It is the contention of these defendants that original defendant
No.1 filed his written statement and after his death, these defendants
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were brought on record and they have adopted aforesaid written
statement. These defendants have raised contention that suit is not
maintainable as probate has not been obtained by the plaintiffs to claim
to be the executors of alleged will of deceased. Defendant no.2 has also
raised similar contention, so issue is required to be framed on that
aspect. It is also contended by original defendant no.1 that deceased
agreed to transfer his share in suit premises in favour of original
defendant no.1 and put original defendant no.1 in possession of suit
premises in January/February 1984. Issue is required to be framed on
that aspect. It is further contended that plaintiffs have claimed that rent
agreement is sham bogus and fraudulent and has been got prepared by
deceased defendant no.1 acting in conspiracy and collusion with
defendant no.2. It is obligatory for plaintiffs to prove the same. So issue
is required to be framed in that regard. Accordingly, these defendants
have made prayer in above terms.
3. Defendant No.2 supported the notice of motion by filing his
affidavit in reply.
4. Plaintiffs opposed notice of motion on the count that it is
misconceived, false and frivolous. Issues have been rightly framed by
the court. Notice of motion is filed belatedly and there is no need to
recast any of the issues. Accordingly, it is prayed that notice of motion
be dismissed.
5. Read notice of motion, reply in support of it, reply of defendant
No.2, reply of plaintiff and record and proceeding of present suit. Heard
respective counsel for parties. They advanced their argument in
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accordance with respective contention made by parties.
6. It is pertinent to note that as per Order XIV Rule 5 of CPC, the
Court may at any time before passing a decree amend the issues or
frame additional issues on such terms as it may thinks fit and all such
amendments or additional issues as may be necessary for determining
the matters in controversy between the parties shall be so made or
frame. In view of this legal position submission of the plaintiffs about
the delay in taking out notice of motion holds no water. That being
legal position now, I have carefully considered the pleadings of parties
and issues framed by my learned predecessor. Plaintiffs are claiming
their right under the Will dated 23.05.1990. Defendants have raised
contention about maintainability of suit for want of Probate of said Will.
It is to be noted that my learned predecessor has framed issue No.1 to
the effect that, 'Whether the plaintiffs prove that they are entitled to one
half share in the suit premises?'. Under this issue, question of
maintainability as raised by these defendants can be dealt with. There is
no need to frame separate issue on that aspect.
7. It is to be noted that original defendant No.1 has also raised
contention that in the year 1984 deceased Pravin Shah agreed to sell his
half share in suit premises and put defendant No.1 in possession of
whole suit premises exclusively on or about January/February, 1984.
No issue has been framed on that aspect. I am of the view that for
determining the matters in controversy, it is necessary to frame
additional issue on that aspect as under,
Whether L.Rs of defendant No.1 prove that deceased Pravin
Shah agreed to sell his half share in suit premises to original
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defendant No.1 and put him in possession of whole premises
exclusively on or about January/ February 1984?.
8. Defendants have no doubt raised contention in relation to rent
agreement dated 1st June, 1986 pertaining to suit premises. But
plaintiffs have amended plaint and raised contention that alleged rent
agreement is false, sham, bogus and fraudulent and has been got
prepared by deceased defendant No.1 and their legal heirs in conspiracy
and collusion with defendant no.2. That bing so, burden is on plaintiffs
to establish said fact. Therefore, issue No.3 needs to be recasted as
under:
Whether plaintiffs prove that alleged rent agreement dated 1st June,
1986 is false, sham, bogus and fraudulent and has been got
prepared by deceased defendant No.1 and their legal heirs in
conspiracy and collusion with defendant no.2?
9. Defendant No.2 has also raised issue of limitation and
jurisdiction of this court to entertain and decide the suit. I am of the
view that additional issues are required to be framed in that regard as
under :
Whether suit is barred by law of limitation?
Whether this Court has jurisdiction to entertain and try present
suit?
10. In light of discussions made above notice of motion deserves to
be partly allowed. Hence, pass following order :
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ORDER
1. Notice of Motion No.158 of 2019 is partly allowed as under.
2. Issue No.3 is recasted as under :
3. Whether plaintiffs prove that alleged Rent Agreement
dated 1st June, 1986 is false, sham, bogus and fraudulent and
has been got prepared by deceased defendant No.1 and their
legal heirs in conspiracy and collusion with defendant no.2?
3. Following additional issues are framed
5a. Whether L.Rs of defendant No.1 prove that deceased
Pravin Shah agreed to sell his half share in suit premises to
original defendant No.1 and put him in possession of whole
premises exclusively on or about January/ February 1984?
5b. Whether suit is barred by law of limitation?
5c. Whether this Court has jurisdiction to entertain and try
present suit?
4. Note about above recasted issue and additional issues be taken
at the bottom of Exh.5.
5. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 20.03.2019 Gr. Bombay
Typed on : 20.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.03.2019, 11.30 a.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
20.03.2019
JUDGMENT/ORDER signed by P.O.
on
22.03.2019
JUDGMENT/ORDER uploaded on 25.03.2019
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