Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.504-20, in Suit no.2097-2015
MHCC010032822020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.504 OF 2020
IN
SUIT NO.2097 of 2015
Ms. Kavita Sitaram Rinjad ..Plaintiff
V/s
M/s. Malde Properties Pvt. Ltd. ..Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 12TH DAY OF OCTOBER, 2022
: Appearances:
The learned Adv. Kudalkar for the plaintiff
The learned Adv. Gandhy for defendants.
ORAL ORDER
The present chamber summons is taken out by the
plaintiff for seeking an amendment in the plaint under Order 6 Rule
17 of the Code of Civil Procedure, (‘CPC’) as per the schedule
annexed thereto and for other reliefs.
2. In short, it is contention of the plaintiff that, he has filed
suit for declaration for right to access / way in the form of the road
having width of 10 ft. 9 length of 70 ft., from the adjoining plot of
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land bearing CTS no. 889 upto Bond Chawl.
3. It is contended that, the father of the plaintiff is the
owner, landlord and occupant of rooms situated at Bond Chawl. The
plaintiff along with her family members have occupying 7 rooms out
of 12 rooms in Bond Chawl and rest of 5 rooms were occupied by the
tenants. Now the tenants have surrendered their tenancy rights and
handed over possession of 5 rooms to the plaintiff.
4. It is further contention of the plaintiff that, she is adivasi
by caste and belongs to Hindu Warli Community, which came under
schedule tribes. The Executive Magistrate, Bombay Suburban District
issued certificate and certified that grand father of the plaintiff as well
as uncle of the plaintiff belongs to Warli tribe. It is contended that,
forefathers of the plaintiff were cultivating the land survey no. 304
and 305. Accordingly the Government of Maharashtra recorded
record of cultivation in the form of 7/12 extract. Name of the grand
father namely Dharma and his brothers were reflected in 7/12 extract
from 1951 1952 onwards. The concerned authority also issued
Hakkache Patra (form no.6) in the name of grandfather of the
plaintiff.
5. It is further contended that, the grandmother namely
Smt. Parvatibai filed an application before the Tahsildar on
20/07/1987, for getting possession of the said land on the ground
that name of her deceased husband Dharma was entered as protected
tenant. Accordingly the Tahsildar, Kurla, conducted an inquiry
wherein submitted report dated 07/12/1991 and confirmed that the
said land belongs to Adivasi and Dharma Bond as protected tenant.
The said order was challenged by Pramjivandas Ravji Wasanji before
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the Sub Divisional Officer and it passed order to enter the said land in
the name of the Government of Maharashtra. Hence, the grand
mother of the plaintiff has challenged said order before the
Commissioner, Konkan Division. Vide an order dated 11/06/2004,
the Commissioner directed to the concerned department that the
possession of the said land should be acquired from non adivasi and
handed over immediately to adivasi as per section 4 of the
Maharashtra Restoration of Land to Scheduled Tribes Act.
6. It is contended that, after the death of grand father
Dharma and grand mother Parvatibai, father of the plaintiff namely
Sitaram became the owner / occupier of the suit premises. It is
contended that, the defendant developing adjoining plot bearing CTS
no. 889 and denoting bogus survey no.372 A/1 under SRA sanctioned
system and on the basis of forged documents.
7. It is further contended that, the present suit came to be
filed in hurriedly. Though all the relevant documents were shown to
earlier advocate, however he did not initiate any proceedings after
request had been made by the plaintiff. The plaintiff want to file
documents regarding possession of her forefathers on the suit
premises, hence the chamber summons.
8. The defendant strongly opposed the chamber summons
by filing reply on affidavit. It is contended that, the chamber
summons is nothing but the futile attempt for delaying the
proceedings further. It is contended that, as the plaintiff failed to get
any relief sought by her in the notice of motion hence the present
chamber summons is filed to prolong the matter. It is contended that
all the documents which the plaintiffs wants to be brought on record
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were within knowledge and domain at the time of filing of the suit.
The plaintiff has not given any ground or reasons much less a cogent
and believable one as to why the plaintiff could not plead the
averments and bring the said documents earlier. If the chamber
summons is allowed, then it would caused prejudice to the defendant
and definitely change the nature of the suit. Hence chamber
summons may kindly be dismissed.
9. Heard both the learned advocates for respective parties.
Perused the record.
10.. Following points arise for my determination to which I
have recorded my findings with reasons as below:
Sr.No. Points Determination
1. Whether the plaintiff has made out
case for grant of relief as prayed in
chamber summons?
Yes
2. What order ? As per final order.
REASONS
As to Point no.1:
11. It is to be noted that, the plaintiff has filed the suit for
declaration that the plaintiff along with other residents of Bond
Chawl having right of way / access in the form of road having width
of 10 ft. length of 70 ft from the adjoining plot of land bearing CTS
no.889 up to Bond Chawl. It is contended by the plaintiff that, earlier
Bond Chawl owned by her grand father and after his demise, to her
father and then to her. The plaintiff wants to file documents on
record to show that name of her forefathers were recorded in 7/12
extract and also copy of Hakkache Patra was issued in their favour on
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the basis of revenue proceedings initiated before the Revenue
authorities. The plaintiff wants to file all documents pertaining to her
pleadings. In my view, if the said amendment is allowed then
naturally it will not going to change the nature of the suit. By
allowing such amendment no prejudice will be caused to the
defendants as they having ample opportunity to defend the same.
Therefore, in my view considering the submissions of both sides, the
plaintiff made out case for allowing chamber summons. Hence my
answer to the point no.1 is in affirmative.
As to point no.2:
In view of my above discussion, I pass the following order.
ORDER
Chamber Summons No. 504/2020 stands allowed and
made absolute in terms of prayer clause (a) subject to payment of
cost of Rs.2000/ paid to the defendant by the plaintiff.
The plaintiff to carry out amendment within 14 days.
Needless to say payment of cost is condition precedent
failing which order shall automatically stands vacated.
Chamber summons stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.12.10.2022 (C.R. No.1)
Dictated on : 12.10.2022
Transcribed on : 14.10.2022
checked and Signed on : 15.10.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 15.10.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 10210.2022
JUDGMENT/ORDER signed by P.O. on 15.10.2022
JUDGEMENT/ORDER uploaded on 15.10.2022
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