Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS no. 335-19 in L.C. Suit no.7444-96
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 335 OF 2019
(CNR no. MHCC010016882019)
IN
LONG CAUSE SUIT NO. 7444 OF 1996 (Disposed off)
(CNR no. MHCC010009081996)
1. Prashant Niwas Cooperative )
Housing Society Limited,having )
its office at 88A,"Kalpataru" )
Ghatla Village Marg, Chembur, )
Bombay400 071. )
2.L.K.Devadiga )
Indian Inhabitant, residing )
at Flat no.4, Kalpataru, )
Wing A,1st floor, Ghatla )
Village, Chembur, Bombay400 071. )...Plaintiffs
V/s
1. Vedrani B.Mehra )...( Deleted )
1.(A) Mr. Raj Vatsa )...( Deleted )
residing at Block No.13, Old Double Story, )
Lajpat Nagar New Delhi – 11 00 24. )
1(A)(a) Mr.Sanjeev Vatsa Son of Raj Vatsa, )
residing at 201,Sun Flower CHS Ltd. )
Cross Road No.3, I.C.Colony, Boriviali(W), )
Mumbai 400 103. )
1(A)(b) Mrs.Seema Sharma )
Daughter of Raj Vasta residing at 8/8 Y )
Under Hill Lane, Civil Lines, )
Delhi 110054. )
2. Inder B. Mehra )...Deleted since deceased
Both Indians Inhabitants )
residing at Flat No.3, Kalpataru, BWing, )
1st floor, Ghatla Village, Chembur, )
Bombay 400 071. )
-- 1 of 9 --
2 CS no. 335-19 in L.C. Suit no.7444-96
2(A) Smt.Pramila Inder Mehra )
Wife of the deceased Residing at )
Flat No.B3, 1st floor Kalpataru, )
Prashant Niwas Cooperative )
Housing Society Limited, having )
plot no. 88, Ghatla Village, )
Chembur,Bombay400 071. )
2(B) Smt. Minu Agarwal )
Daughter of deceased )
Residing at C12, Flat No.603/604, )
Vasant Vihar,Thane(W), District Thane. )
2(C) Smt. Neetu Rawal )
Daughter of deceased )
Residing at A701/702,Tribeca )
Next to Hiranandani Hospital, )
Hiranandani Estate,Thane (W), )
District Thane400 607. )
2(D) Smt. Deepa Agarwal )
Daughter of deceased )
residing at B806, JeevanVihar Building, )
5 Manav Mandir Road, Malabar Hill, )
Mumbai400 06. )
3. M/s.Parekh Brothers )
Bhagwan Bhavan, 7173 Mint Road, )
Fort, Bombay400 001. )
4. Ramniklal Parekh )
Partner of defendant no.3 )
above 71 73, Mint Road, Fort, )
Mumbai400 001. )...(Deleted since deceased)
4(A) Smt. Indumati R. Parekh )
wife of Ramniklal Parekh )
Residing at 5, Ashish, S.V. Road, )
Santacruz (W), Mumbai 400 054. )
4(B) Shri.Vikram R.Parekh )
Son of Ramniklal Parekh )
residing at 5, Ashish, S.V. Road, )
Santacruz(W), Mumbai 400 054. )
-- 2 of 9 --
3 CS no. 335-19 in L.C. Suit no.7444-96
4(C) Shri. Bakul R. Parekh )
Son of Ramniklal Parekh )
residing at 5, Ashish, S.V. Road, )
Santacruz (W), Mumbai 400 054. )
4(D) Shri.Yomesh R.Parekh )
Son of Ramniklal Parekh residing at 5, )
Ashish, S.V. Road, Santacruz (W), )
Mumbai 400 054. )
5. M/s. R.D. Developers, having )
their office at 301/302, Mahavir )
Commercial Complex, M.G. Road, )
Ghatkopar (E),Bombay400 077. )
6. The Municipal Corporation of )
Greater Bombay, Having their )
Office at Corporation House, )
Mahapalika Marg, Fort, )
Bombay400 001. )
7.Nitin K.Gandhi )
of Mumbai Indian Inhabitant )
Residing at 401, Utsav 12th Road, )
Chembur, Mumbai 400 071. )
8. Daxa N.Gandhi )
of Mumbai Indian Inhabitant )
Residing at 401, Utsav 12th Road, )
Chembur, Mumbai 400 071. )....Defendants
Appearances:
Ld. Advocate Mr. V. K. Sharma with Advocate Mr. Mannadiar for
defendants no. 2(A) to 2(D).
Ld. Advocate Mr. Gangarkar for defendant no. 5.
Ld. Advocate Mr. Khandagle for defendant no. 6 / MCGM.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 25th July, 2019
-- 3 of 9 --
4 CS no. 335-19 in L.C. Suit no.7444-96
O R A L O R D E R
1. By instant Chamber Summons the plaintiffs have prayed to allow
them to amend the plaint and they have made a request to amend the
decree by replacing incorrect area of the suit property "1286.629 sq.
mtr" by correct area "1464.89 sq. mtr." The said Chamber Summons is
strongly resisted by the defendants contending inter alia that this Court
does not have any powers to amend the plaint after passing of the
decree, there is no error in the decree as the same is passed in terms of
the prayers in the plaint.
2. After careful reading of the decree dated 05.12.2018 in L.C. Suit
no. 7444 of 1996, the defendants no. 1(A)(a), 1(A)(b), 2(A) to 2(D) are
directed to execute conveyance of Plot(A) admeasuring 1286.629 sq.
mtr. (as mentioned in Consent Term Exh. 22 and Map Exh. 67) from
the total area 2264 sq. yard (1893 sq. mtr) of the suit property. Ld.
Advocate for the plaintiff has pointed out that admittedly total area of
the suit property is 2264 sq. yards (1893 sq. mtr.) and it is also not in
dispute that the area of Plot(B) shown in the Sketch Exh. 67 is 4617 sq.
ft. (429 sq. mtr.) and therefore, remaining area of suit Plot(A) would
be 1464 sq. mtr. after deducting Plot(B) from total area. It is
contended in the affidavit along with chamber summons that due to
typographical error area of Plot(A) was typed as 1286.629 sq. mtr. and
-- 4 of 9 --
5 CS no. 335-19 in L.C. Suit no.7444-96
the same was reflected in the decree dated 05.12.2018. Ld. Advocate
for the defendants has vehemently argued that if the plaintiffs are
allowed to amend the plaint after passing of a decree, it will reopen the
case and cause great prejudice to the defendants. He has also relied
upon judgments J. Samuel and others V/s. Gattu Mahesh and others
[2012(2) SCC 300] and Sajani Bewa V/s. Kartik Sahu and others
[ AIR 1981 ORISSA 157] to buttress his submission that there was a
clear lack of "due diligence" and mistakes committed by the plaintiffs do
not came within purview of a typographical error and, therefore, the
claim of typographical error is baseless and cannot be accepted. He has
referred to an amendment to Order VI Rule 17 of The Code of Civil
Procedure,1908 (hereinafter referred to as ‘CPC’ for brevity) as
introduced in 2002 and argued that entire object of the said
amendment is to stall filing of application for amending the plaint
subsequent to commencement of trial to avoid surprises. He has further
contended that if the amendment is allowed as prayed, it will require
almost retrial of the suit.
3. I have carefully gone through record of this case and particularly
judgment dated 05.12.2018. Operative order no. 1 reads as under :
1. The defendants no. 1(A)(a), 1(A)(b), 2A to 2D are directed to
execute conveyance of Plot(A) admeasuring 1286.629 sq. mtr. (as
-- 5 of 9 --
6 CS no. 335-19 in L.C. Suit no.7444-96
mentioned in Consent Terms Exh.22 and Map Exh.67) from the suit
property i.e. property bearing no. 88A, Hissa No. 1, totally
admeasuring 2264 sq. yard (1893 sq. mtr.) within two months from the
date of decree in favour of plaintiff no. 1 society.
4. From the aforesaid order even though specific area 1286.629 sq.
mtr. is mentioned therein, the same relates back to contents of Consent
Terms Exh. 22 and Map Exh. 67. If contents of the Consent Term
(Exh.22) are perused, Plot(B) admeasuring 4617.76 sq. ft. shown in
pink (429 sq. mtr.) was relinquished by the present plaintiffs from total
of the suit property. It is also mentioned in paragraph no. c of the
Consent Terms that the defendant no. 4 shall not claim any rights in
respect of the balance portion of the Suit property which is shown
shaded in green on the Sketch Plan annexed thereto. After reading the
Consent Terms and plaint as a whole, the plaintiffs became owners of
the suit property except Plot(B) which is admeasuring 429 sq. mtr.
shown in the Sketch (Exh.67). These Consent Terms were filed on
19.12.1995, pursuant thereto the suit Plot(B) is secured by erecting
compound wall. Therefore, the remaining area of the suit property is
clearly belonging to the plaintiffs. That being the position if the plaint
and the decree are not amended as prayed, the dispute will again
emerge as the plaintiffs would get conveyance of an area 1286.629 sq.
-- 6 of 9 --
7 CS no. 335-19 in L.C. Suit no.7444-96
mtr. only and the ownership of an area 177.371 sq. mtr. will again be a
cause of uncertainty and controversy. The litigation will never end. It is
not the case that the plaintiffs are claiming substitution of any land by
another. The facts are not disputed and identity of the Plot(A) is also
not under challenge. Discussing about the scope and object of Sections
151, 152 and 153 of CPC in the case of B. Dheenadhayabaran V/s.
Rathna Vel [Judgment dated 24.07.2015 in C.R.P. (NPD) (MD)
No.807 of 2012] Hon'ble Madras High Court has expressed
propositions that provision of Section 153 of CPC should not be
construed in a pedantic manner, under Section 153 of CPC the Court
has extensive powers to correct mistakes in plaint and decree, object of
Sections 151, 152 and 153 of CPC is to shorten the litigation preventing
duplication of proceedings and saving the parties from harassment and
expenses. It is also pronounced that it is duty of the Court to see that
the records are true and present the correct state of affairs. Moreover,
contents of the decree should be such that the same should be properly
executed. Considering above legal and factual aspects, I deem it proper
to grant the Chamber Summons in the interest of justice. Hence,
following order:
ORDER
1) Chamber Summons No. 335 of 2019 is allowed and made absolute in
terms of prayer clause (a).
-- 7 of 9 --
8 CS no. 335-19 in L.C. Suit no.7444-96
2) The amendments be carried out accordingly within 14 days from
today.
sd/
(C. V. Marathe)
Judge,
Date : 25.07.2019 City Civil Court, Gr. Mumbai.
Dictated on : 24.07.2019
Transcribed on : 25.07.2019
Signed by HHJ on : 29.07.2019
-- 8 of 9 --
9 CS no. 335-19 in L.C. Suit no.7444-96
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.07.2019 at 5.38 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
25/07/2019
JUDGMENT/ORDER signed by
P.O. on
29/07/2019
JUDGMENT/ORDER uploaded
on
29/07/2019
-- 9 of 9 --