Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 239 of 2019 In S.C.Suit No. 3090 of 2014
1 Date 17.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.239 of 2019
IN
S.C. SUIT NO. 3090 of 2014
(CNR NO.MHCC010012532019)
Mr. Kamaljit Kaur Chhabra & Anr. .. Plaintiff
Versus
Mr. Satnam Singh Saini & Ors. .. Defendants
And
Mrs. Swaran Chawla & Ors. .. Respondents
Appearances :
None present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
C.R. No. : 7
Dated : 17.09.2019
ORDER
1. The defendant no. 1 and 2 have filed instant Chamber
Summons allowing them to carry out amendments as per schedule
annexed with the Chamber Summons.
2. It is contended by the defendant no. 1 and 2 that the plaintiff
filed present suit for partition of suit flat alongwith other reliefs.
The defendants filed their Written Statement on 17.02.2016. At
the relevant time due to oversight on the part of their advocate Mr.
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Chamber Summons 239 of 2019 In S.C.Suit No. 3090 of 2014
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Dixit who was not feeling well and who expired on 2017, certain
facts could not be incorporated in the Written Statement. Thus,
this court while disposing off Notice of Motion No. 4577 of 2014
have observed that parent of defendant no. 1 died intestate.
Actually that is incorrect fact. As the mother of defendant no. 1,
Mrs. Niranjan Kaur Masuta had executed ‘will’ dated 05.10.2002
bequeathing her asset to her husband Mr. Nirmal Singh Masuta
and father of defendant no. 1 has also executed Registered Will
dated 17.07.1989 bequeathing his entire property including
immovable property, machinery and cash to the defendant no. 1.
The aforesaid Will is also registered at State of Punjab.
3. It is further contended by the defendant that his mother was
self employed and was doing business alongwith his brother Mr.
Madan Singh in partnership which was duly executed on
17.11.1966, therefore, she had independent source of income and
out of her independent source of income, she has purchased the
suit property.
4. It is further contended by the defendants that the plaintiffs
have suppressed filing of Suit no. 686 of 2013 and Special Civil
Suit No. 592 of 2014 for partition of properties owned by parents
of defendant no. 1. It is further submitted that the plaintiff also
filed regular Civil Suit No. 298 of 2013 against defendant no. 1
and his mother for declaration that flat was purchased by the
father of defendant no. 1. The defendants made passing reference
of the aforesaid fact in their Written Statement. However, due to
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Chamber Summons 239 of 2019 In S.C.Suit No. 3090 of 2014
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oversight of the Advocate, the aforesaid facts are not incorporated
in their Written Statement. It is submitted by the defendants that
the aforesaid facts are necessary to be incorporated in the Written
Statement which resolves the dispute between the parties. Hence,
the defendant prayed for allowing them to carry out necessary
amendments.
5. The instant Chamber Summons is opposed by the plaintiff on
the ground that the defendants have taken a contradictory and
inconsistent defence stand due to which the case of plaintiff would
be demolished. In support of their submission, the plaintiff relied
on the judgment of Hon’ble Apex Court reported in AIR 1977
Supreme Court 680 in case of M/s. Modi Shipping and Weaving
Mills Co. Ltd. V/s. M/s. Ladha Ram and Company.
6. It is contended by the plaintiff that there a huge delay in
filing instant Chamber Summons. Hence, plaintiff prayed for
dismissal of the present Chamber Summons.
7. Heard both the sides. Perused Chamber Summons, reply and
pleadings of the parties. The plaintiff filed present suit for partition
of suit flat bearing A11, Gulmarg CHS Ltd. Chembur Naka,
Chembur, Mumbai. (hereinafter shall be referred to as Suit flat).
8. It is contended by the plaintiff that the plaintiffs and
defendant no. 1 are the real brother and sister. The suit flat is
their ancestral property. Father of plaintiff expired on 29.11.2011
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4 Date 17.09.2019
and their mother died on 14.03.2014. The defendants
fraudulently executed Gift Deed dated 11.11.2011. In fact at the
relevant time the father of plaintiffs were not in position to execute
the Gift Deed. It is further contended by the plaintiffs that as per
Hindu Succession Act, they are having equal share in the suit flat.
Hence, the plaintiffs claimed for partition of the suit flat.
9. The defendants resisted the suit by filing their Written
Statement on the ground that their father executed valid Gift Deed
by which the defendant no. 1 is become owner of the suit flat. It is
further contended by the defendants in their Written Statement
that the suit property was self acquired property of Smt. Niranjan
Kaur Masuta. It is further contended that Will dated 05.10.2002
executed by the mother is of no consequences as the mother of
defendant no. 1 subsequently gifted the property by the Registered
Gift Deed.
10. It is well settled law that Court can allow the amendments of
pleadings at any stage of the proceedings provided, such
amendments should goes to the root of the matter and shall be
with respect to the controversy involved between the parties. The
plaintiff is claiming partition in the suit flat on the basis of Hindu
Succession Act whereas the defendants have already pleaded that
by way of Gift Deed, defendant no. 1 become the owner of the suit
flat. It is further made reference by the defendants in their Written
Statement that the mother of defendant no. 1 was self employed.
In the proposed amendment, the defendant wanted to incorporate
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5 Date 17.09.2019
the source of earning of mother of defendant no. 1 as well as
previous litigation filed by the plaintiff. The defendant no. 1 and 2
also wanted to make the amendment in respect of execution of will
Deed dated 05.10.2002. In my view, looking to the pleading of
the parties and controversy involved between the parties, the
aforesaid amendment is necessary to adjudicate upon the dispute
between the parties. Hence, such amendment needs to be
allowed. In my view, the proposed amendment do not change the
nature of the suit nor demolishes the case of the plaintiff. Even
otherwise also the defendant is entitled to take inconsistent stand
in their Written Statement. It is the plaintiff who has to stand on
his own leg and prove its case. Therefore, I do not find any
substance in the objection of the plaintiff in allowing the present
Chamber Summons. Thus, in view of the above discussion, in my
view, the Chamber Summons needs to be allowed in the interest of
justice. Thus, I proceed to pass the following order :
ORDER
1. Chamber Summons No. 239 of 2019 is hereby made absolute
in terms of prayer clause “a”.
2. The defendant no. 1 and 2 are allowed to carry out necessary
amendment as per schedule within 14 days from the date of
order.
3. The defendants to file amended Written Statement and also
to suply the copy of the same.
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Chamber Summons 239 of 2019 In S.C.Suit No. 3090 of 2014
6 Date 17.09.2019
4. Chamber Summons No. 239 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 17.09.2019 Gr. Bombay
Dictated on : 17.09.2019
Transcribed on : 17.09.2019
Operative part uploaded on : 17.09.2019
Draft submitted on : 17.09.2019
Checked on : 18.09.2019
Signed on : 18.09.2019
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Chamber Summons 239 of 2019 In S.C.Suit No. 3090 of 2014
7 Date 17.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/09/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
17/09/2019
JUDGMENT/ORDER signed by
P.O. on
18/09/2019
JUDGMENT/ORDER uploaded
on
18/09/2019
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