Date: 23-04-2019
Business: Adv. Satale for Plaintiff present.
Adv. Rajapurkar for Defendant nos.1 and 2 present.
He tendered original NM No.1223/19 t.o.r.
Adv. Ranjana Chodankar for defendant no.3 present.
Plff tendered original Ch/s no.567/19 t.o.r.
Additional affidavit in support of NM filed by
K.B.
L.O.
Order below Notice of Motion No.1223/19.
Read Notice of motion and affidavit in support of it, reply of Plaintiff.
Heard respective counsel for parties.
Notice of motion is taken out for condoning the delay caused in filing written statement on the count that matter was captioned for hearing of notice of motion and not captioned for suit, so act of waiver of service of writ of summons has been completely skipped out of the mind of defendant nos.1 and 2 and their Advocates. Therefore, these defendants could not file written statement within period of 30 days. Accordingly, defendant nos.1 and 2 made prayer in above terms.
Plaintiff opposed notice of motion on the count that no specific reason given for condoning the delay and reason assigned is not satisfactory.
On perusal of record, it appears that defendant nos.1 and 2 waived the service of summons on 12.12.2018. They failed to file written statement within 30 days from the date when they waived service of summons. They have attributed to themselves and their Advocate about forgetfulness of service of writ of summons as one of the reasons for delay caused in filing written statement. They have also assigned reason about engaged in simultaneous proceedings. I am of the view that for technical reasons the defendants should not be deprived from contesting the suit on merits. Moreso, delay caused is not inordinate and it cannot be said that it is deliberate. Further, defendant nos.1 and 2 have already filed written statement alongwith notice of motion which show bonafide on their part. Therefore, in the interest of justice and fair trial, I am inclined to condone delay caused in filing written statement by defendant nos.1 and 2. Hence, pass following order.
ORDER
1. Notice of Motion No.1223 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1,000/- to the plaintiff within period of one week. Defendant nos.1 and 2 are at liberty to deposit costs payable to Plaintiff in Court.
2. On payment of costs by Defendant nos.1 and 2, written statement filed by them be marked exhibit and taken on record.
Accordingly, NM is disposed off.
Costs paid to the Adv for Plaintiff.
Ex.5 Written statement filed by defendant nos.1 and 2.
Order below notice of motion no.3929 of 2018.
Read Notice of motion, affidavit in support of it and reply of defendants.
Heard respective counsel for parties.
Adv for Plaintiff submitted that in view of reply to notice of motion, in para 19 and 22, defendant nos.1 and 2 have made certain statements that they do not have any intention to carry out any work of permanent nature or changing the original structure and frame work and further made statement that they have no intention to change the structure or transfer it, status quo order can be passed against the defendant nos.1 and 2 and motion can be disposed off in view of status quo order. He further submitted that at present Plaintiff is not seeking any relief against defendant no.3.
Adv for defendant nos.1 and 2 fairly conceded that in view of statement made by defendant nos.1 and 2 in para 19 and 22 of their reply, these defendants have no quarrel for grant of status quo. In above circumstances, following order is passed.
ORDER
1. Defendant nos.1 and 2 are directed to maintain status quo in relation to the suit premises in pursuance to their statement made in para 19 and 22 of their reply as pointed above.
2. Defendant nos.1 and 2 are directed to take colour photographs of suit premises showing structure of suit premises from within and outside the suit premises to cover whole area of suit premises alongwith front and back portion and upper roof portion within period of three days from date of order and file those photographs alongwith affidavit of concerned photographer within period of one week from date of taking photographs.
3. In above terms notice of motion no.3929/18 is allowed and disposed off.
Adj for reply on Ch/s 567/19 and for compliance to 04.07.2019.
Next Purpose: REPLY
Next Hearing Date: 04-07-2019
Date: 04-07-2019
Business: Adv. Mr. Satale for Plaintiff. He filed reply to affidavit filed by Defendant Nos.1 and 2 - TOR
Adv. Mr. Jitesh Goyal for defendant nos.1 and 2 present.
Adv. Ms. Ranjana Chodankar for defendant no.3 present.
Adv. for defendant Nos.1, 2 and 3 filed reply to Chamber Summons No.567 of 2019.
Heard argument of both side.
Order passed below Chamber Summons No.567 of 2019
Read chamber summons, affidavit in support of it and reply of defendant Nos.1 to 3. Heard respective counsel for parties.
Chamber summons is taken out by plaintiff to incorporate contention as per schedule annexed to chamber summons on the count that plaintiff wants to give detail description of the property and add subsequent events.
Defendants opposed chamber summons on the count that proposed amendment in relation to subsequent events have no connection with present suit. Accordingly, they prayed to dismiss chamber summons.
I have carefully gone through proposed amendment sought to be incorporated by plaintiff. First part of said amendment relate to incorporation of elaborate description of the property while Second part relate to subsequent events. In my view, proposed amendment relating to incorporation of detail description of property will only give elaborate description of property and no prejudice will be caused to defendants if said amendment is allowed.
So far as proposed amendment by way of para 13-a as suggested in schedule \''A\'' is concerned same relate to filing of Summary suit by defendant No.1 and one Kamruddin Kalu Mansoori and about contention made by defendant Nos.1 and 2 in the aforesaid suit. It is pertinent to note that present suit filed by plaintiff is under Section 6 of Specific Relief Acts and only point involved in present suit is, whether plaintiff was dispossessed from suit property within six months prior to filing of suit. In my view, proposed amendment is in no way necessary for just decision of controversy between the parties. Therefore, I am not inclined to allow proposed amendment at para 13-a as mentioned in schedule \''A\'' annexed to chamber summons. In view of discussion made in presiding para chamber summons deserves to be allowed only in relation to the contention about description of property as even in the schedule \''A\'' annexed to chamber summons. Hence, pass following order.
ORDER
1. Chamber Summons No.567 of 2019 is partly allowed and made absolute in terms of prayer clause (a) to the extent of first part of schedule \''A\'' annexed to Chamber Summons.
2. Plaintiff to carry out amendment in the plaint relating to description of property only as per schedule \''A\'' annexed to chamber summons within period of two weeks from the date of this order.
3. On carrying out amendment copy of amended plaint be served upon other side.
4. Accordingly, Chamber Summons No.567 of 2019 stands disposed off.
Matter is adjd for compliance on 09.08.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 04-07-2019