Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.162/2019 ..1.. Suit No.2729/2015
CNR No.MHCC01000898 2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.162 OF 2019
IN
SUIT NO.2729 OF 2015
Shravan Ramsharan Chaurasiya .. Plaintiff
Versus
Ashok Ramsharan Chaurasiya
Kiran Ashok Chaurasiya & others .. Defendants
Mr. Sejal Shah, advocate for plaintiff
Ms. Trupti A. Bharadi, advocate for defendant Nos.1A to 1E and 3
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 30th August, 2019
ORAL ORDER
Chamber summons is taken out by plaintiff for permission to
amend the plaint as per scheduleI annexed to it.
2. It is the contention of plaintiff in plaint that he, deceased
defendant No.1 and defendant No.3 are real brothers. Defendant Nos.2
and 4 are their real sisters. Their father Ramsharan Chaurasiya
purchased immovable property i.e. pan bidi shop at Cadell Road, Road
No.5, Shivaji Park, Dadar, Mumbai – 28. (in short 'suit shop'). Now,
said society is called as New Siddhivinayak Coop Society. Their father
expried on 27.12.1995 and their mother expired on 06.02.2015 leaving
behind plaintiff and original defendant Nos.1 to 4 as the only legal heirs
to their estate. After death of their father, name of suit shop came to be
transferred in the name of their mother. Their mother before her death
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signed and executed Declaration dated 26th November, 2013 stating
that her three sons will have equal share in suit shop in the event of
sale. It is also contended that suit shop was purchased somewhere
about 70 years ago and after death of the father, plaintiff started
handling said shop since nearly 40 years. Till now he is using suit shop
for conducting business.
3. It is further contended that there was mutual understanding in
between brothers that after the death of mother, shop would be sold
and would divide the share amongst them. However, defendant No.1
and 3 threatened him to dispossess him from suit shop with an
intention to sell suit shop and to appropriate the sale proceeds between
themselves by depriving plaintiff's 1/5th share in suit shop. Deceased
defendant No.1, his heirs (defendant Nos.1A to 1E) and defendant No.3
are in the process of usurping the entire estate of deceased mother. In
fact, above defendants have attempted to create third party right in
respect of suit shop. It is further contended that plaintiff is in use,
occupation and possession of suit shop since inception and paying taxes
to BMC. Defendants never ever intended welfare of deceased however
they are interested in the estate of deceased. Chamber summons is
taken out for amendment of schedule–I annexed to chamber summons.
It is contended that if chamber summons will be amended then no
prejudice will be caused to the defendants Hence, plaintiff urged in
above terms.
4. Defendant Nos.1A to 1E and 3 filed reply and objected the
notice of motion and denied the contention of plaintiff. It is contended
that nature of suit and cause of action is different. Plaintiff by filing
chamber summons altering nature of suit and cause of action which is
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not allowed in law. Accordingly, defendants prayed for dismissal of
chamber summons.
5. Plaintiff filed rejoinder to reply of defendants and denied the
contention of defendants. It is contended that after filing of suit
defendants have threatened him for disposing of suit shop.
Accordingly, prayed to allow chamber summons.
6. Perused chamber summons, affidavit in support of it, reply of
defendants, rejoinder of plaintiff, pleadings of parties and documents
filed on record. Heard respective counsel for parties. They advanced
their arguments in accordance with respective contention of parties.
7. Plaintiff wants to incorporate contention about extent of his
right in suit shop and seek declaration in that respect. It is to be noted
that plaintiff has already in para 4 of the plaint has specified that he has
1/5th share in the said shop. Now, he wants to claim declaration in that
respect on same cause of action. Defendants objected to the notice of
motion only on the count that nature of suit will change. It is to be
noted that plaintiff by way of amendment only wants to incorporate
additional relief of declaration. So, it cannot be said that same will
change the nature of suit. At the stage of deciding amendment
application merits or demerits of the amendment sought cannot be
looked into. Whether relief sought by way of amendment is within time
or not can be kept open and same will be decided at the appropriate
time. In my view amendment is necessary for just decision of suit.
However, considering the fact that plaintiff made this application
belatedly certain costs is required to be imposed upon him. Hence, pass
following order:
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ORDER
1. Chamber Summons No.162 of 2019 is allowed and made
absolute in terms of prayer clause (a) subject to payment of costs of
Rs.2000/ (Rupees Two Thousand only) to contesting defendant Nos.1A
to 1E and 3 within period of two weeks from the date of this order.
Plaintiff is at liberty to deposit the costs payable to contesting
defendants in the Court.
2. On payment of costs, plaintiff is permitted to carry out
amendment as per schedule annexed to chamber summons and to affix
requisite court fee.
3. Plaintiff is also directed to file amended copy on record and
same is also to be served upon contesting defendants.
4. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 30.08.2019 Gr. Bombay
Typed on : 30.08.2019
HHJ singed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31.08.2019, 3.00 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
30.08.2019
JUDGMENT/ORDER signed by P.O.
on
31.08.2019
JUDGMENT/ORDER uploaded on 31.08.2019
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