Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S 220/2019(Suit 4794/10)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 220/2019
(CNR No. MHCC010011672019)
IN
S.C. SUIT NO.4794/2010
Shri Sitaram Krishna Ghadi ..Plaintiffs
V/s.
1. Smt Rukhmini Krishna Ghadi
2. Shri Avadhut Krishna Ghadi
3. Shri Devdatta Krishna Ghadi
4. Smt. Vanita Balkrishna Ghadi
5. Shri Amit Kanubhai Gandhi
6. Shri Pravinaben Kanubhai Gandhi .. Defendants.
Appearances :
Adv. Mrs. Kushi T. Bhadricha for plaintiff.
Adv. S. R. Kadam for defendant nos.1 to 4.
Adv. Mukesh Jain for defendant nos.5 and 6.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 13.10.2021.
ORDER
1. The plaintiff has filed instant chamber summons seeking
amendment in the plaint.
2. It is contended by the plaintiff that, he has filed suit for
partition, separate possession, declaration and injunction against the
defendants. It is contended by the plaintiff that, the suit flat is a joint
family property. However, the defendant nos.1 to 4, without his consent
and no objection, sold the same to defendant nos.5 and 6 vide
agreement to sale dated 30.5.2008 for a consideration of Rs.9,00,000/.
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However, on the date of execution of the aforesaid sale deed, the
market value of the suit premises, as per readyreckoner, was
Rs.29,59,440/. But without any reason the defendant nos. 1 to 4 sold
the suit premises to the defendant nos. 5 and 6 for lesser amount.
3. It is further contended that , the defendant nos. 1 to 4 have
received much higher consideration from defendant nos.5 and 6. But in
order to refuse legitimate claim of the plaintiff, they fraudulently
executed sale deed of much lesser amount. It is further contended that,
on 6.12.2017 after framing of Issues, the plaintiff filed an application
for recasting of the Issues. At that time it revealed to him that, there is
no pleading in respect of transfer of suit property in favour of defendant
nos.5 and 6 for lesser amount. Therefore, it is contended that,
inadvertently, the aforesaid pleadings not incorporated in the plaint.
Therefore, the plaintiff filed present Chamber Summons for necessary
amendments.
4. It is further contended that the aforesaid chamber
summons will not change the nature of the suit and no prejudice will be
caused to the defendant, if the chamber summons is allowed.
5. The chamber summons is opposed by the defendant nos. 1
to 4. The defendant no.3 on behalf of himself and other defendants nos.
1,2 and 4 has filed his reply to the chamber summons. It is contended
that, the amendment application filed by the plaintiff is vague. The
proposed amendment is already pleaded by the plaintiff at paragraphs
15 and 18 of the plaint. It is further contended that, even if the
proposed amendment is granted, it will not take plaintiff further in any
direction. The plaintiff will remain wherever he was earlier. Therefore,
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defendants nos. 1 to 4 prayed for rejection of the chamber summpns.
6. The defendant no.5 on his behalf and on behalf of
defendant no.6 also filed reply and opposed the chamber summons on
the ground that, this court has no jurisdiction to try and entertain the
chamber summons. There is no cause of action for filing the suit. The
proposed amendments were already known to the plaintiff. Therefore,
there is delay in moving the aforesaid chamber summons. Hence, the
defendant nos.5 and 6 prayed for rejection of the chamber summons.
7. Heard both sides. Perused Chamber Summons, reply,
rejoinder and pleadings of the plaint. It is the case of the plaintiff that,
the suit flat no.307, 3rd floor, Hariom CHS is an undivided Hindu
family property and the plaintiff and defendant nos. 1 to 4 are the legal
heirs of deceased Krishna Ghadi. It alleged by the plaintiff that, he has
1/5th share in the suit property. It is alleged by the plaintiff that,
defendant nos.1 to 4, behind his back without obtaining his consent,
sold the suit property to defendant nos. 5 and 6 for a consideration of
Rs.9 Lakh, when in fact, on the date of execution of the sale deed dated
30.5.2008 the market value of suit property was between Rs.30 to 35
Lakh. However, the defendant nos.1 to 3 with malafide intention
executed the aforesaid sale deed in favour defendant nos.5 and 6.
8. It is argued on behalf of the defendants that, the plaintiff
by way of proposed amendment seeking to incorporate certain
pleadings which are already there in the plaint. I have perused schedule
of the proposed amendment. The plaintiff by way of proposed
amendment is seeking to incorporate that the defendant nos.1 to 4
executed sale deed of suit flat on 30.5.2008 for consideration of Rs.9
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Lakh. In fact, the market value of the suit premises on the date
execution of sale deed was Rs.30 to 35 Lakh. The aforesaid pleadings
are already there in the plaint. The plaintiff by way of proposed
amendment seeking to incorporate that there was no necessity to the
defendant nos.1 to 4 to sell the suit premises for a consideration of Rs.9
Lakh, which was much lesser than the prevailing market value. The
plaintiff further wanted to incorporate that the defendant nos.1 to 4
have received much higher consideration from defendant nos. 5 and 6.
But the defendant nos.1 to 4, with intention to cheat the plaintiff,
executed sale deed of much lesser amount than they have received.
Thus, it appears to me that, the plaintiff by way of proposed
amendment is seeking to incorporate more clarification in his pleadings.
The proposed amendment certainly do not change the nature of the
suit. Moreover, if the proposed amendment is allowed, no harm or
prejudice will cause to the defendants. Therefor, I am of the view that,
the chamber summons can be allowed. Thus, I proceed to pass
following order:
ORDER
1. The Chamber summons No.220 of 2019 is allowed in terms of
prayer clause (a) of the Chamber Summons.
2. The plaintiff is allowed to carry out necessary amendment as per
Schedule within a period of 14 days and other consequential
amendments.
3. The defendants are at liberty to file their additional W.S., if they
so desired.
4. The plaintiff to bear the costs of Chamber Summons.
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5. The Chamber summons is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 13.10.2021 Greater Bombay.
Dictated on : Dictation through voice recording (13.10.2021)
Typed on : 14.10.2021
Draft Submitted on : 14.10.2021
Signed on : 20.10.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
20.10.2021, at 5.45 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 13/10/2021
JUDGMENT/ORDER signed by P.O. on 20/10/2021
JUDGMENT/ORDER uploaded on 20/10/2021
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