Final Order 1

Order Details: Chamber summons
Pdf Text: 1Ch/S No.396/2018 in Suit No.5075/08
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO. 396 OF 2018
(CNR NO. MHCC010028362018)
IN
S.C.SUIT NO. 5075 OF 2008
(CNR NO. MHCC010065672008)
Gul Pribhdas Jhangiani ... Plaintiff
Versus
1A. Mrs. Rekha Pawan Vohra and Ors ... Defendants
Adv. Mr. Tembhe for plaintiff.
Adv. Mr. Athawale for defendant.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 21st DECEMBER 2018
O R D E R
1. This Chamber Summon has been taken out by the plaintiffs
for carrying out amendment as per exh. A to the chamber summons.
2. The plaintiff has filed affidavit in support of chamber
summons, wherein he has stated that on the date of filing of the suit
original defendant no. 1 and defendant no. 2 and 3 were residing in the
suit premises alongwith him. After the filing of the suit, defendant no. 1
and defendant nos. 2 and 3 voluntarily removed themselves from the
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suit premises and shifted their residence to flat no. C602, Luvkush
Apartment Society, Sinddhi Society, Chembur, and writ of summons
was to be served upon them on said new address.
3. It is further averred that subsequently they again shifted
their residence to flat no. 406, 4th floor, Tolaram Tower, Chembur. The
said address was mentioned by them in the affidavit dated 23.03.2010
of defendant no. 2 in support of notice of motion no. 887 of 2010. On
25.01.2015, defendant no. 1 expired and names of her remaining heirs
are brought on record as per the order passed in chamber summons no.
772 of 2015. However, through oversites, new residential address of
defendant no. 2 and 3 and the averments in respect thereof remained to
be incorporated in the plaint.
4. As per prayer clause (c) of the plaint, the plaintiff has
sought grant of mandatory order against defendants no. 1 (now
deceased ) and defendant nos. 2 and 3, jointly and severally to remove
themselves and their belonging from the suit premises. After filing of
the suit they voluntarily left suit premises and removed their belonging
from the suit premises and shifted their residence as stated above. Now
the plaintiff is in exclusive possession of the suit premises and prayer
clause (c) of the suit has already been complied. Therefore, in view of
above reasons, it has become necessary to carry out the amendment.
The evidence has not commenced in the present suit. Thus prayed for
allowing the chamber summons.
5. Defendant no. 1 has filed affidavit in reply. It is contended
that chamber summons is time barred. Defendant no. 2 her deceased
mother, sister Sangeeta and younger brother Deepak were all forced to
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move out of the suit flat by the plaintiff and his wife. The plaintiff and
his wife were created such conditions by their aggressive and abusive
conduct that it became impossible for them to live in the suit flat and
ultimately in the year 2008 and not in the year 2010 all of them were
forced to move out. Thus amendment sought after 10 years is clearly
time barred and cannot be granted. Defendant no. 4 does not reside in
the same premises with her and defendant no. 3. The plaintiff's claim of
exclusive possession of the suit flat is misleading. Hence prayed for
dismissal of chamber summons.
6. Heard. Perused affidavit in support and reply of defendant
no. 1 to 3. It seems that defendant no. 2 has not denied changed
address given by the plaintiff, but stated that defendant no. 4 is not
residing with them. Perused proposed amendment. It appears that the
plaintiff wants to change new residential address of defendant no. 2
and 3. Defendant nos. 2 and 3 have not denied the said new address. It
was for them also to give their changed address before the court. But
they have not furnished their new address. In this background proposed
amendment application has been filed on behalf of the plaintiff.
7. Further proposed amendment in para no. 18A discloses
that the plaintiff wants to bring on record by way of pleadings in the
plaint, how the defendants have changed their addresses two times and
the plaintiff is in possession of the suit premises. Thus, proposed
amendment if considered, it will not cause prejudice to the defendants.
Further it reveals that evidence has not been commenced. Therefore, if
proposed amendment is allowed to be incorporated, no prejudice would
be caused to the defendants, but correct address of the defendants will
come on record. Therefore, chamber summons is to be made absolute in
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the interest of justice.
8. It appears further that after demise of defendant no. 1, the
plaintiff had taken out chamber summons no. 772 of 2015 and not
asked relief of amendment as prayed in this chamber summons. Thus,
there is delay in filing chamber summons and it resulted into cause
delay in the trial. Therefore, costs is to be imposed upon the plaintiff
while allowing this chamber summons. With this I proceed to pass the
following order.
O R D E R
1. Chamber Summon No. 396 of 2018 is made absolute in terms of
prayer (a) and (b), subject to payment of costs of Rs.3500/
payable by the plaintiff to defendant nos. 1 to 3.
2. On payment of costs, the plaintiff is directed to carry out
amendment on or before next date and further directed to place
on record amended copy of the suit plaint and furnish amended
copies to the defendants.
3. Accordingly Chamber Summons No. 396 of 2018 stands disposed
of.
(S. P. PONKSHE)
Judge,
Date: 21/12/2018. City Civil Court,
Gr. Bombay.
Dictated on : 21/12/2018
Transcribed on : 21/12/2018
Signed on : 24/12/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/12/2018 At 5.40 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
11/12/2018
Judgment/Order signed by P.O. on 12/12/2018
Judgment/Order uploaded on 15/12/2018
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