Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum no.482/19 in L.C.Suit no.1236/14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO. 482 OF 2019
(CNR no. MHCC010023922019)
IN
L.C. SUIT NO. 1236 OF 2014
(CNR no. MHCC010044482014)
Leela Parshuram Uttarkar ]..Plaintiff
Versus
Uttarkar Brothers & ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 5th March, 2019.
Ms. Savithri, advocate for plaintiff.
Mr. Agrwal with Ms. Sharma, advocates for defendant no.2.
None for defendant nos. 1 and 3.
ORDER
1. The plaintiff has taken out this chamber summons seeking
amendment of the plaint. The plaintiff wants to bring on record
subsequent events which according to plaintiff, either due to confusion
or over sight could not be brought on record earlier.
2. Heard, the respective advocates. The learned advocate for
plaintiff submitted that the plaintiff wants to add the factum of
redevelopment of the property and objection raised by the plaintiff and
further the defendant no. 2 accepted the shop having and got monetary
compensation secretly to the prejudice of the rights of the plaintiff and
in collusion with the developer. The plaintiff also wants to correct the
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2 Ch/sum no.482/19 in L.C.Suit no.1236/14
description of the suit premises and to seek certain reliefs of
declaration. According to her, there is no new cause of action.
3. On the other hand, the learned advocate for the defendant
no. 2 strongly objected to allow the chamber summons and the
amendments proposed in paragraph nos. 13(a) to (c). He fairly
conceded for allowing the amendment proposed in paragraph no.
13(d). According to him, the amendments proposed in paragraph nos.
13(a) to (c) are for the years 2014 and 2016, that is prior to 13.04.2018
when the plaintiff had took out earlier chamber summons for
amendment. The plaintiff has not given proper reason as to why she did
not propose these amendments earlier. He further submitted that the
Hon'ble High Court had granted a specific leave to the plaintiff and
therefore, such amendment can not be granted. He also submitted that
the suit is restricted to the properties of the partnership and the plaintiff
can not plead that those are joint family properties. According to him,
the proposed amendment is barred by principle of resjudicata and also
barred by law of limitation.
4. On the premise of these submissions, pleadings and perusal
of the text of amendment narrated in the schedule to the chamber
summons and documents on records, it appears that the plaintiff wants
to add subsequent event in paragraph nos. 13(a) to (d) to the plaint
and further to carry out correction in description of the suit premises
and add / correct the prayer clauses accordingly.
5. The fact situation shows that the plaintiff instituted suit for
declaration that she is a deemed partner and having rights in all
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3 Ch/sum no.482/19 in L.C.Suit no.1236/14
partnership properties, assets including the suit premises and for
declaration that agreement dated 26.04.2016 executed between the
defendant no. 2 and the developer is not binding on her. In the
alternative, the plaintiff seeks declaration that the said agreement has
been executed for the benefit of the plaintiff, defendant no. 2 and the
partnership firm.
6. According to plaintiff, her husband and father of defendant
no. 2 were real brothers and original partners of defendant no. 1 firm
since 1950 and were running their business in suit shop nos. 1 and 2
which were tenanted premises. Further, a partnership deed dated
01.11.1970 was registered. However, the father of defendant no. 2
being elder brother, the rent receipts were issued in his name. He died
in 2006. Therefore, the defendant no. 2 was added as partner by
executing the partnership deed dated 01.12.2006. Thereafter, in 2011
plaintiff's husband died. However, the defendant no. 2 avoided to admit
the plaintiff in the partnership firm which resulted in institution of this
suit on 25.07.2014 wherein an adinterim relief was granted.
7. The entire property where the suit shops were located has
been redeveloped. The plaintiff issued notice to the developer who
replied the same with an agreement for permanent alternate
accommodation was executed with the defendant no. 2.
8. The plaintiff took out chamber summons no. 887 of 2015
for addition of the said developer as defendant, however, the same was
dismissed on 06.09.2017 which was challenged by the plaintiff by filing
Civil W.P. no. 14301 of 2017. During the pendancy of the said writ
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4 Ch/sum no.482/19 in L.C.Suit no.1236/14
petition, on 13.04.2018 the plaintiff also took out another chamber
summons in this suit bearing chamber summons no. 871 of 2018 for
amendment of the plaint which was allowed. The defendant no. 2
challenged the same by filing Civil .W.P. no. 7679 of 2018. The Hon'ble
High Court disposed off both the writ petitions by common order dated
25.01.2019 passed on minutes of order as follows :
“MINUTES OF ORDERS:
1. The Petitioner is permitted to withdraw present
Petition with liberty to adopt appropriate
proceedings to bring subsequent events on record
but without seeking any reliefs against Respondents
nos. 4 to 6.
2. In view of the above, the Respondent no. 2
being the Petitioner in the Writ Petition no. 7679 of
2018 do not press for said Petition and he is
permitted to withdraw said Writ Petition no. 7679
of 2018. However; the Respondent no. 2 shall be at
liberty to file additional Written statement to the
amended plaint within period of 4 weeks from
today.
3. Trial Court to decide, any such applications
made by the parties, on its own merits without
being influenced by earlier order.
4. No order as to cost.”
9. Considering the aforesaid fact situation and the no
objection given by the defendant no. 2, the amendment proposed in
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5 Ch/sum no.482/19 in L.C.Suit no.1236/14
paragraph no. 13(d) is required to be allowed.
10. So far as the remaining amendments proposed in
paragraph nos. 13(a) to (c) are concerned, it appears from the aforesaid
minutes of orders that the plaintiff was permitted to withdraw the writ
petition with liberty to adopt appropriate proceedings to bring
subsequent events on record. In furtherance of the same, the plaintiff
has moved the present chamber summons stating the reasons for her
failure to bring the events in the years 2014 and 2016 on record earlier.
The plaintiff appears to be a senior citizen and probably for fault of any
legal brain to take out appropriate chamber summons stating all the
subsequent events, it can not be said that the liberty granted as
aforesaid was only to the events subsequent to the date of chamber
summons no. 871 of 2018 that is after 13.04.2018. The Hon'ble
Supreme Court by judgment dated 01.03.2019 passed in the case of
Varun Pahwa vs. Renu Chaudhary in Civil Appeal No. 2431 of 2019
has held that an amendment in the pleadings can not be refused
because of some mistake, negligence, inadvertence or even infraction of
the Rules of Procedure.
11. In paragraph no. 4 of the plaint, the plaintiff has already
made certain averment about the nature of the property involved in the
suit that it was a joint family property and the business of partnership
etc. Therefore, amendment by way of explaining the nature of property
or plaintiff's rights involved therein can be permitted. Considering, such
earlier pleadings there would not be barred of any limitation as the
plaintiff is not setting out any fresh claim by the proposed amendment.
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6 Ch/sum no.482/19 in L.C.Suit no.1236/14
12. Though, it is settled position that the principle of res
judicata is applicable between the two stages of the same suit, the
defendant no. 2 has not explained as to why it is applicable to the
present set of facts. Merely, failure to propose an amendment earlier
will not fall within the ambit of the said principle.
13. So far as the reliefs claimed by the plaintiff by way of
proposed amendment are concerned, they are not related to declaration
of tenancy. The shop no. 1 has been allotted after the redevelopment to
the defendant no. 2 in lieu of surrendering the alleged joint family
property that is shop nos. 1 and 2 in respect of which the plaintiff is
claiming certain rights and also claiming the same to be an asset of
partnership. Therefore, the proposed amendment seeking a relief of
declaration as prayer clause (a) can be allowed.
14. Thus, the remaining minor amendments are in the form of
correcting the area of the suit premises and its numbers etc. that is the
description of the suit properties. No major changes are proposed.
Therefore, the same can be allowed.
15. Thus, in all the proposed amendment will not alternate the
basic structure of the suit. Merely, on the ground of delay the same can
not be refused. The proposed amendment appears necessary for
determination of matter in controversy once for all. Therefore, the
chamber summons deserves to be allowed. The prejudice which may be
caused to the defendant can be compensated in terms of costs. Thus,
the following order is passed :
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7 Ch/sum no.482/19 in L.C.Suit no.1236/14
ORDER
1. The Chamber summons no. 482 of 2019 is made absolute in
terms of prayer clause (a) subject to payment of costs Rs.3,000/
to be paid to the defendant no. 2 or deposited in the Court for
that purpose within a period of two weeks from today.
2. The amendment be carried out in all respects within the period of
two weeks from today.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 05.03.2019 City Civil Court, Mumbai.
Dictated on : 05.03.2019
Transcribed on : 06.03.2019
Checked by HHJ on : 07.03.2019
Signed by HHJ on : 08.03.2019
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8 Ch/sum no.482/19 in L.C.Suit no.1236/14
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.03.2019 at 4.14 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
05/03/2019
JUDGMENT/ORDER signed by
P.O. on
08/03/2019
JUDGMENT/ORDER uploaded
on
08/03/2019
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