Interim Order 3

Order Details: Chamber summons
Pdf Text: 1 C/H No.627/2018 in S.S.1236/2014
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.627 OF 2018
IN
S.C.SUIT NO. 1236 OF 2014
Shri Arvind Atmaram Utttarkar ]
Aged about 51 years, having ]
address at Shop Nos.1 and 2 ]
Amin Manzil, Ground Floor, ]
155, L.J. Road, Mahim, ]
Mumbai 400 016. ].. Applicant.
In the matter between;
Smt. Leela Parshuram Uttarkar ]
Age 62 years, Occupation : Housewife, ]
Residing at 404, Ajay Shopping Centre, ]
Mahim, Mumbai 400 016. ].. Plaintiff.
V/s.
1 M/s. Uttarkar Brothers ]
Registered partnership firm ]
represented through its partner ]
Arvind Atmaram Uttarkar. ]
2 Shri Arvind Atmaram Utttarkar ]
Partner of Uttarkar Brothers, ]
Aged 47 years, having ]
address at Shop Nos.1 and 2 ]
Amin Manzil, Ground Floor, ]
155, L.J. Road, Mahim, ]
Mumbai 400 016. ]
3 Mr. Parag Inamdar ]
Age not known, Occupation: ]
Business, Owner of Potoba Hotel, ]
Having address at Shop Nos. 3 & 4, ]
Amin Manzil, Ground Floor, ]
155, L.J. Road, Mahim, ]
Mumbai 400 016. ]..Defendants.
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2 C/H No.627/2018 in S.S.1236/2014
Advocate Mr. Rakesh Agarwal for the defendant nos.1 and 2.
Advocate Ms. C.A. Savitri for the plaintiff.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 26th JUNE 2018
ORAL ORDER
This Chamber summons has been taken out by defendant
nos.1 and 2 for seeking permission to carry out amendment in the
written statement as per terms of the schedule to this Chamber
Summons.
2 Defendant no.2 has filed his affidavit in support of
Chamber Summons. It is averred that to bring subsequent events on
record, which were transpired after filing of the written statement, they
have taken out this chamber summons. It is further averred that he is in
the exclusive possession, use and occupation of shop nos. 1 and 2, Amin
Manzil, L.J. Road, Mahim, Mumbai 400 016 till said shops were
demolished by the Developer for the redevelopment. The name of
defendant no.2 was duly mentioned in the certified list of occupants
prepared by Mumbai Building Repair and Reconstruction Board in or
about the month of March 2015 as “Occupants” of both the shops. He
handed over the possession of shop nos.1 and 2 in the Amina Manzil to
developer for redevelopment purpose and said building was
demolished. The developer entered into registered agreement dated
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3 C/H No.627/2018 in S.S.1236/2014
26.04.2016 with defendant no.2 for providing permanent alternate
accommodation in lieu of old shop nos.1 and 2 in old building by name
Amina Building. He is in the possession, use and occupation of the
newly allotted premises being shop no.1 on ground + first floor of the
newly constructed building namely Horizon. Under Regulation 33(7)
and AppendixIII of Development Control Regulation, defendant no.2
being the occupant is entitled to benefit of the scheme to exclusion of
others. Aforesaid material events were transpired after filing of the
written statement. The written statement was filed by defendant no.2
in July 2014. If present chamber summons is allowed, no prejudice
would be caused to the plaintiff. Thus, prayed for allowing chamber
summons.
4 The plaintiff has filed reply to the Chamber Summons and
denied that defendant no.2 is in the exclusive possession, use and
occupation of shop nos. 1 and 2, Amin Manzil, L.J. Road, Mahim,
Mumbai 400 016 till said shops were demolished by the Developer for
the redevelopment. The plaintiff has denied that the present chamber
summons is taken out to bring subsequent events on record, which were
transpired after filing of the written statement. Thus, prayed for
dismissal of chamber summons.
5 Heard the learned advocate for the defendants and the
learned advocate for the plaintiff.
6 After perusal of records, it appears that the defendants
have filed written statement on 08.07.2014. It further appears that
during the pendency of the suit, defendant no.2 entered into registered
agreement dated 26.04.2016 and during the pendency of the suit, suit
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4 C/H No.627/2018 in S.S.1236/2014
shops were demolished by the developer for redevelopment and name
of defendant no.2 is mentioned in the certified list of occupants.
Further, according to defendant no.2, he is in possession, use and
occupation of shop no.1 on ground + first floor of the newly
constructed building namely Horizon. Even, in view of subsequent
events, after filing this chambers summons, the plaintiff has taken out
chamber summons for amendment in the plaint.
7 It appears from proposed pleadings that the defendants
want to incorporate pleadings in respect of registered agreement
executed on 26.04.2016 in between developer and defendant no.2 and
in respect of accepted permanent alternate accommodation by
defendant no.2 on 16.09.2017.
8 Thus, all above mentioned facts are nothing, but
subsequent events occurred during the pendency of the suit and after
filing of written statement by defendant nos.1 and 2. Thus, Considering
the nature of the suit and defence of the defendants, already taken and
in view of subsequent events occurred, it is just and proper, in order to
decide real controversial issues involved in the suit, to allow the
amendment in the written statemen,t in the interest of justice and with
intention to avoid multiplicity of the proceedings. The present chamber
summons has been taken out by defendant nos.1 and 2 in March 2018.
Thus, considering six months delay in filing written statement, it is just
to impose cost of Rs.2,000/ upon the defendants. Thus, Chamber
Summons is to be allowed. With this, I proceed to pass the following
order:.
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5 C/H No.627/2018 in S.S.1236/2014
ORDER
Chamber Summons No. 627 of 2018 is made absolute in
terms of prayer clause (a) subject to the payment of costs of Rs.2,000/
(Rupees Two Thousand only) payable by defendant nos.1 and 2 to the
plaintiff on or before next date
2 On payment of costs, defendant nos.1 and 2 are allowed to
carry out amendment in terms of the schedule to the chamber summons
on or before next date and further directed to place on record amended
copy of the written statement and serve the same to the plaintiff on or
before next date.
3 If the defendants fail to make compliance, chamber
summons stands dismissed automatically.
3 Chamber Summons No.627 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 25/06/2018. City Civil Court,
Gr. Bombay.
Dictated on : 25/06/2018
Transcribed on : 26/06/2018
Signed on : 27/06/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27/06/2018 At 5.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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6 C/H No.627/2018 in S.S.1236/2014
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
26/06/2018
Judgment/Order signed by P.O. on 27/06/2018
Judgment/Order uploaded on 27/06/2018
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