Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010007572020
CNR NO. MHCC010007572020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.99 OF 2020
IN
S.C. SUIT NO.3961 OF 2008
(HIGH COURT SUIT NO.1600 OF 2008)
Zubair Jabbar Solanki ] … Plaintiff
V/s.
1Imran Iqbal Solanki and Ors. ]
] ....Defendants
Appearances :-
Ld. Adv. Mr. Rajesh Dixit for plaintiff.
Ld. Adv. Ghadigaonkar for defendant No.1, 7 to 13.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 5th January, 2022
ORAL ORDER
1. The present Chamber Summons is taken out by the plaintiff
for carrying out amendment in the plaint. It was submitted by the
plaintiff that the present suit is filed for partition amongst plaintiff and
defendant. However, due to inadvertance the plaintiff could not
mention the relief of possession of his share in the prayer Clause of the
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suit and therefore, the proposed amendment be allowed in the interest
of justice.
2. The defendant No.1 filed reply and denied the contention
of plaintiff. It was submitted that the parties to the suit are governed by
the Muslim Law and therefore amendment in respect of partition and
separate possession is not tenable. The plaintiff has filed the present
Chamber Summons to prolong the proceedings. The amendment thus
filed by the plaintiff cannot be granted and therefore the present
Chamber Summons be rejected.
3. Heard Learned Advocate for plaintiff and defendant. The
contents are not reproduced. The perusal of record shows that the
plaintiff filed present suit for partition. The averments in the plaint
shows that the plaintiff is seeking his share in the property. The present
suit is fixed for framing of issues. However, the issues are yet to be
framed and therefore, the trial is yet to be commenced. The plaintiff
stated that inadvertantly the relief of separate possession could not be
sought in the prayer Clause. The Learned Advocate for defendant
raised objection on the maintainability of the suit. It appears that at
this stage the maintainability of the suit or the prayers sought by the
plaintiff cannot be looked into. From the averments of the plaint, it
seems that plaintiff is seeking his share in the suit property and
therefore, the relief of possession to the extent of share is a
consequential relief alongwith the prayer of partition. Thus the
proposed amendment if allowed would not change the nature of the
suit. The proposed amendment is necessary to adjudicate the matter
on merit and therefore, considering the nature of the amendment, I,
proceed to pass the following Order:
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ORDER
1. Chamber Summons No.99 of 2020 is allowed.
2. The plaintiff to carry out the amendment as proposed as per the
schedule during 14 days of this order.
3. The plaintiff shall file the amended copy of the plaint on or
before next date.
4. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 05-01-2022 City Civil Court, Gr. MUMBAI
Dictated on : 05-01-2022
Transcribed on : 06-01-2022
checked on : 06-01-2022
Signed on : 06-01-2022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06.01.2022 at 04.55 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of judgment/order 05.01.2022
Judgment/order signed by P.O. on 06.01.2022
Judgment/order uploaded on 06.01.2022
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