Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S.NO.376/2019
MHCC010019682019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO. 376 OF 2019
IN
S.C SUIT No. 2019 OF 2018
1.Smt.Priya Kanaiya Gupta and Ors. ...Plaintiffs
Vs.
1.Smt.Pradnya Prakash Dhuri and Ors ...Defendants.
AND
Nitin Nana Patil ...Respondent.
Appearance
Mr A.K.Upadhyay, learned Advocate for the plaintiffs.
A.G. Revankar & Co., learned Advocate for defendant No.1
M/s. Law Loyals, learned Advocate for defendant No.2
Mr. N.D.Jaywant and Mr. M.R. Yadav, learned Advocates for the
respondent.
CORAM : RAJESH A. SASNE (C.R.NO.62)
Adhoc Judge.
Date : 2nd August, 2022
O R D E R
This chamber summons is taken out by the plaintiffs for
amendment in the plaint.
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2. It is the contention of the plaintiffs that they have filed the
suit for declaration that the plaintiffs are joint owners having 1/4th
undivided share in the suit premises. They have also prayed for decree
of partition. After appearance of the defendants, the suit was referred
for mediation. However, on 21.08.2018, the defendants have sold the
suit premises to the respondent. The said agreement has been registered
with subregistrar therefore, the plaintiffs want to join the respondent
as defendant No.4 and have also prayed for consequential amendment
in the plaint.
3. The chamber summons is opposed by the respondent by
affidavit in reply. It is his contention that he is a bona fide purchaser
for value in respect of the suit premises. The suit premises were alloted
to the defendants under agreement for providing alternate
accommodation. The plaintiffs never raised objection in that regard.
The plaintiffs have no right of any nature whatsoever to implead the
respondent as party defendant. The defendants have sold the suit
premises to the respondent by agreement to sell dated 21.08.2018. The
respondent was not aware of any agreement between the plaintiffs and
the defendants. The respondent denied that he is liable to join as a
party defendant. With these contentions he prayed to dismiss the
chamber summons.
4. Defendant Nos.1 & 2 also filed their affidavitinreply and
resisted the chamber summons. It is the contentions of defendant Nos.1
and 2 that the plaintiffs have no right, title, interest in the suit property,
they are not entitled to any share therein. These defendants denied
that they have made such any statement to give 1/3rd share to the
plaintiffs. They denied that on such statement case was referred to
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mediation. Defendant Nos.1 and 2 have exclusive right over the suit
property. The defendants have sold the property as rightful owner.
They denied that agreement to sell dated 21.08.2018 is illegal. With
these contentions the defendant Nos.1 and 2 have prayed to dismiss the
chamber summons.
5 Heard learned Advocates for the plaintiffs and the
respondent. No argument of defendant Nos.1 and 2.
6. Read the affidavitinsupport of chamber summons and
affidavit in reply. It is the contention of the plaintiffs that during
pendency of the suit, defendant Nos.1 and 2 have executed agreement
for sale dated 21.08.2018 in favour of the respondent Nitin Patil. The
copy of said agreement attached as Exh.A to the chamber summons
supports this contention. The schedule of property therein shows that
the said agreement of sale has been executed in respect of the suit
property, Flat No.1503, which has been executed by defendant Nos.1
and 2 therefore, it is subsequent even in respect of which the
amendment is prayed by the plaintiff. If the respondent is assumed to
have acquired any right in the suit premises, his presence is required
before this Court. Hence, the respondent is required to be added as
defendant No.4 in the suit. Learned Advocate for the respondent raised
objection in respect of valuation of the suit and jurisdiction thereby.
Unless, the amendment is taken on record, these points cannot be
agitated and considered. Whether defendant Nos.1 and 2 have allowed
to execute the agreement for sale in favour of respondent and whether
the plaintiffs had any right in respect of the suit premises. These
aspects are touching to the merits of the suit and they are not required
to be discussed here. The limited scope of this chamber summons is to
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bring the subsequent event on record. The fact of executing agreement
to sell is subsequent event. The proposed amendment in that regard is
related with the dispute involved in the suit therefore, the amendment
is required to be taken on record. The proposed amendment is just and
necessary to decide real question in controversy between the parties.
Accordingly, the respondent is required to be added as defendant No.4
hence, chamber summons needs to be allowed. In the result, I pass
following order :
O R D E R
1. Chamber Summons No.376/2019 is allowed.
2. The plaintiffs are allowed to add respondent as defendant No.4 and
to carry out the amendment as proposed in the scheduled attached with
the Chamber Summons.
3. The plaintiffs are also allowed to carry out amendments in the notice
of motion.
4. Plaintiffs to carry out amendment within stipulated time.
5. Chamber Summons is disposed of accordingly.
(R.A. Sasne)
Date : 02.08.2022 Judge,
Dictated on : 02/08/2022 City Civil Court,
transcribed on : 04/08/2022 Mumbai.
Signed on : 05/08/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06.08.2022 at 2.00 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 02/08/2022
Order signed by P.O. on 05/08/2022
Order uploaded on 06/08/2022
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