Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum no. 278-18 in S.C.SUIT 2827-15
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 278 OF 2018
(CNR no. MHCC010020052018)
IN
S.C. SUIT NO. 2827 OF 2015
(CNR no. MHCC010119882015)
Mr. Shakeel Ahmed M.A. Ansari ]... Plaintiff
Versus
Mr. Mohammed Sajid Shahzad Ansari ]... Defendant
And
Asif Yusuf Shaikh ]... Respondent
(Proposed defendant no. 2)
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 16th April, 2019.
Mr. Manoj Jaiswal, advocate for plaintiff.
Mr. V. R. Dubey, advocate for respondent.
None for defendant.
ORDER
1. The plaintiff has taken out this chamber summons seeking
addition of respondent as defendant no. 2 and to amend the plaint as
narrated in the schedule attached to the chamber summons. The
plaintiff wishes to add paragraph nos. 25(a & b) and certain prayers.
2. The learned advocate for the plaintiff submitted that the
plaintiff has instituted a suit for specific performance of an agreement
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2 Ch/sum no. 278-18 in S.C.SUIT 2827-15
dated 17.05.2014. By an order dated 09.12.2015, an adinterim
injunction was issued against the defendant restraining him from
creating third party interests in the suit premises. However, the
defendant on 16.02.2016, by executing certain affidavit, power of
attorney etc. transferred the suit premises to the respondent and
therefore, his presence is necessary in the suit.
3. On the other hand, the learned advocate for the respondent
submitted that he purchased the suit premises from the defendant in
March, 2014 for Rs.5,00,000/. The plaintiff was knowing the same,
however, he did not join the respondent in the suit. According to him,
the respondent is possessing the suit premises since March, 2014.
Already an electricity connection in the name of the respondent is given
at the suit premises. There is no cause of action to take out this motion.
In reply, the learned advocate for the plaintiff submitted that in 2016,
plaintiff came to know about such transfer and then he took out the
chamber summons. The defendant did not contest the chamber
summons.
4. The suit has been filed on 20.11.2015, for specific
performance of an agreement dated 17.05.2014 executed for sale of the
suit premises. The respondent has not placed any documents on record
to show prima facie that in 2014, the defendant transferred the suit
premises in his favour and handed over possession thereof. On the
contrary, the copies of documents like affidavit, power of attorney etc.
dated 16.02.2016 prima facie show that the defendant transferred the
suit premises to respondent on 16.02.2016 i.e. during the pendency of
the suit.
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3 Ch/sum no. 278-18 in S.C.SUIT 2827-15
5. Considering the nature of the suit and the reliefs claimed,
the proposed amendment is necessary in order to decide the matter in
controversy. It is not a time barred amendment. Hearing of suit is not
yet started though, the suit is directed to be heard exparte against the
defendant. The plaintiff has also taken out contempt motion against the
defendant for disobedience of order of injunction and the same is
pending for service. Thus, if the proposed amendment is allowed, it will
not change the nature of the suit as the plaintiff is seeking a permanent
injunction against the proposed defendant no. 2 and also the possession
of the suit premises from him, which the plaintiff has already sought
against the defendant.
6. Therefore, the chambers summons deserves to be allowed
with costs. Thus, the following order is passed :
ORDER
1. The Chamber summons no. 278 of 2018 is made absolute in
terms of prayer clause (a) and (b) with costs with direction that
the plaintiff to carry out the amendment in all respects within
two weeks from today.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 16.04.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 16.04.2019
Checked by HHJ on : 16.04.2019
Signed by HHJ on : 16.04.2019
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4 Ch/sum no. 278-18 in S.C.SUIT 2827-15
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.04.2019 at 5.20 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
16/04/2019
JUDGMENT/ORDER signed by
P.O. on
16/04/2019
JUDGMENT/ORDER uploaded
on
16/04/2019
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