Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010030332020
Presented on : 11-03-2020
Registered on : 11-03-2020
Decided on : 17-03-2021
Duration : 1 years, 0 months, 6 days
IN THE COURT OF
COURT 1 CITY CIVIL JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
CHAMBER SUMMONS/100460/2020
IN
S.C. SUIT NO.3483 OF 2012
RAJAN SUBHASH BOHRA ..Plaintiff
Versus
KARMA YOGI PROPERTY DEVELOPERS
PVT LTD AND 3 ORS ..Defendants
Advocate for plaintiff: Mr.Kabre
Advocate for defendant nos.1 and 2: Ms. Priyanka Singh
ORAL ORDER DELIVERED ON 17/03/2021
1. By this chamber summons the plaintiff
interalia seeks
leave to amend the plaint, appointment of Court Receiver
and for temporary injunction restraining defendant nos.1
and 2 from disposing or selling or alienating the suit flat.
2. Heard.
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3. At the out the relief of appointment of Court Receiver and
for grant of temporary injunction is out of purview and
scope of the chamber summons. Therefore, the same is
not considered. Even otherwise, the chamber summons is
for adding respondent as a party in whose favour the suit
flat has been transferred. Therefore before giving proper
opportunity to him, it would not be proper to consider the
said reliefs.
4. In short, the case of the plaintiff is that plaintiff has filed
the present suit before the Hon’ble High Court wherein by
order dated 11/07/2012, defendant nos.1 and 2 were
restrained from dealing with the suit flat. The suit was
transferred to this Court in October-2012, in view of
enhancement of pecuniary jurisdiction of this Court. The
suit was unattended by the plaintiff and therefore the suit
came to be dismissed on 11/04/2014. Subsequently it
was restored. The contention of the plaintiff is that
defendant nos.1 and 2 does not disclose about the
registered agreement for sale dated 22/05/2002 with the
respondent. The plaintiff in or about January 2020
approached the office of Sub-Registrar of Assurance and
thereby learnt about the transfer of the suit flat by
defendant nos.1 and 2 in the name of respondent by
virtue of an agreement dated 07/11/2015 and respondent
is in possession of the suit flat. He would submit that the
said development is subsequent development and these
facts are to be brought on record. The said transfer is in
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breach of the order of the Hon’ble High Court. The
plaintiff also registered lis pendens. Hence, in these
circumstances, the respondent is required to be joined as
a party and seek leave of the Court.
5. Defendant nos.1 and 2 denied the allegations and
admitted that suit flat was sold to respondent nos.1 and
2. Defendant nos.1 and 2 contended that chamber
summons for the proposed amendment is false and
vexatious and prayed for rejecting the same. The other
statements of defendant nos.1 and 2 are related to the
facts of the case which are not required to be considered.
6. No doubt the matter was placed for the evidence of the
plaintiff and case was proceeded without written
statement against defendant no.2. The plaintiff has not
yet filed his evidence. Therefore, it can be said that the
trial is not yet commenced and the proviso to order 6 Rule
17 of the CPC will not have effect for the amendment to
the plaint. Even otherwise, the plaintiff wish to
incorporate the subsequent events occurred during the
pendency of the suit and in that circumstances the proviso
under order 6 Rule 17 will not be applicable. The
amendment relates to third party rights created in respect
of the suit flat for which the plaintiff has filed suit for
specific performance of the contract. The transfer
occurred between the period of dismissal of the suit for
non prosecution and restoration of the suit. Therefore it
can be said that the transfer was not during the pendency
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of the suit. But, as a matter of fact, the respondent is in
possession of the suit flat, in which plaintiff claims right
on the basis of an agreement. All the dispute pertaining to
the suit flat should be decided in a single compass of
litigation to avoid multiplicity of the proceedings. The
respondent in future may take advantage that the transfer
was not during the pendency of the suit and therefore he
is not bound by the decree. In order curb the said
situation, the present chamber summons needs
consideration. The proposed amendment is not malafide
and does not change the nature of the pleadings. The
plaintiff is permitted to amend the plaint in order to meet
the end of justice. Hence, it is expedient to pass following
order:-
ORDER
1. Ch/s No.460/20 is made absolute in terms of prayer clause
(a) and (b).
2. Plaintiff to carry out the necessary amendment within a
period of 14 days from today.
3. After carrying out the amendment, writ of summons be
issued to respondent i.e. defendant no.5.
4. Plaintiff to serve copy of amended plaint to the defendants
and one copy be placed on record.
(M.SALMAN AZMI)
Judge,
Date: 17.03.2021 City Civil Court, Gr.Bombay
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Dictated on : 17/03/2021
Transcribed on : 22/03/2021
Signed on : 23/03/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
23/03/2021 at 4.00 pm.
Mrs.T.C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
17/03/2021
Judgment and order signed by P.O. 23/03/2021
Judgment/order uploaded on 23/03/2021
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