Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010030012019
CNR NO. MHCC010030012019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.596 OF 2019
IN
SUIT NO.9272 OF 1994
(HIGH COURT SUIT NO.5132 OF 1994)
M/S. RANBHAI BHANJI & ORS. ] … Plaintiffs
V/s.
HARISHCHANDRA PANDIT & ORS. ] ...Defendants
AND
DHARMESH SARDARMAL JAIN & ORS. ] .... Proposed
Defendants
Appearances :-
Ld. Adv. Mr. G.S. Bhat for plaintiff.
Ld. Adv. Ms. Deepali Bosamia for defendant Nos.3 to 6.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 25th January, 2022
ORAL ORDER
1. The present Chamber Summons are taken out by the
defendant No.3 to 6 for carrying amendment in written statement and
to join the proposed defendants as party to the suit.
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2. It was submitted by the defendant No. 3 to 6 that during
the pendency of the present suit on 11.06.2018 the defendant Nos. 3 to
6 came to know that plaintiff No.1 to 3 have executed Deed of
Partnership dated 07.07.1994, whereby proposed defendant No.1 and 2
became parteners of partnership firm and proposed defendant No.3 is
the partnership firm. The plaintiff No. 1 to 3 have given all the powers
and authority to grant the development rights to proposed defendant
No.1 and 2 as partners and therefore it is necessary to add the proposed
defendants as party to the suit. In pursuance of the Partnership Deed
the proposed defendant executed various documents for development of
the suit premises. The Advocate for defendant Nos.3 to 6 issued notices
to proposed defendants but it was not replied. A Writ Petition No.939
of 2009 was filed before the Hon'ble High Court. The defendant No.1
to 3 intend to file all the documents received under RTI Act. It was
further submitted that the plaintiffs have no right and title in the suit
property and rights are assigned to the proposed defendants. It is
necessary to amend and add the paras in the written statement and
proposed defendants are required to be added as party to the suit. If
the Chamber Summons is not granted, great prejudice and injury will
cause to the defendants and therefore the Chamber Summons be made
absolute.
3. The plaintiffs filed reply and denied the contention of
defendants No.3 to 6. It was submitted that the Chamber Summons
are taken out to delay the suit proceeding and harras the plaintiffs. The
evidence of plaintiff is already commenced. The trial has been
commenced and therefore the present Notice of Motion is not
maintainable. It is for the plaintiff to decide to whom they intend to
join as a party. The plaintiff can not be forced to add any party as
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defendant. The Defendant No.1 to 3 were already aware about the
development agreement but still this Chamber Summons were taken
out at the fag end of the trial and therefore application be rejected with
compensatory cost.
4. Heard Learned Advocate for defendent Nos. 3 to 6 and
Advocate for plaintiff at length. The Notices were issued to the
proposed defendents but they failed to appear and reply to the Chamber
Summons. The plaintiff filed the present suit for declaration, specific
performance and for the grant of other reliefs. The evidence of plaintiff
has been commenced and cross examination is also completed. The
plaintiff is claiming the declaration regarding the valid subsisting and
binding agreement for sale of the reversionary rights of the suit
property. So also plaintiff is seeking the decree of specific performance.
The plaintiff admitted that the development agreement has been
executed between them and the proposed defendents. The advocate for
defendent filed the Deed of Partnership along with development
agreement. In pursuance of the development agreement the Deed of
Mortgage was also executed. It further appears that the proposed
defendents are only carrying out the development of the suit property.
The prayers sought by the plaintiff and the reliefs claimed by the
plaintiffs are only from present defendents and it seems that in order to
adjudicate the matter on merits the proposed defendents are not
necessary parties. Moreover, it is for the plaintiff to add the necessary
parties if required or any realief is claimed against the proposed parties
and therefore the prayer for addition of proposed defendents cannot be
considered.
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5. So far as the amendment to written statement is concerned,
the defendant No.3 to 6 got the knowledge after they received the
documents through RTI Act and therefore the facts are came to the
knowledge after the commencement of trial hence said facts can be
added in the pleadings. The defendent No.3 to 6 intends to incorporate
the said facts in the written statement and therefore the prayer for
amendement to such extent can be granted. No prejudice will cause to
the plaintiff if the facts are incorporated in the written statement and
therefore, I proceed to pass the following Order:
ORDER
1. Chamber Summons No. 596 of 2019 is partly allowed.
2. The defendants Nos. 3 to 6 are allowed to amend the written
statement in terms of schedule annexed to the Chamber
Summons only for addition of para No.6(a) to 6(o).
3. The defendants Nos.3 to 6 to carry out the amendment within 14
days from this order.
4. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 25-01-2022 City Civil Court, Gr. MUMBAI
Dictated on : 25-01-2022
Transcribed on : 27-01-2022
checked on : 28-01-2022
Signed on : 28-01-2022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
28.01.2022 at 02.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of judgment/order 25.01.2022
Judgment/order signed by P.O. on 28.01.2022
Judgment/order uploaded on 28.01.2022
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