Order 1

Order Details: Chamber summons
Pdf Text: Ch.S. No.711/2018 1 Suit No.7532/1996
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.711 OF 2018.
IN
SUIT NO.7532 OF 2018.
Mr. Atma Prasad Singh ...Plaintiff.
V/s
Mr. Kripa Shankar Singh and Others. ...Defendants
Mr. J.B.Singh, Advocate for Plaintiff.
Mr.R.R.Sharma, Advocate for Defendants no.1 and2.
Mr. Gidwani, Advocate for Defendant no.3.
CORAM : HIS HONOUR JUDGE
SHRI G.G. BHANSALI.
C.R.No.07.
DATED : 8th January, 2019.
ORAL ORDER
This is a chamber summons taken out by the plaintiff for
amendment in plaint under the order 6 rule 17 of the Code of Criminal
Procedure. It is contended that two properties situated in District
Varanasi are remain to include in suit property. Hence, this chamber
summons is filed for amendment in plaint.
2. Defendants no.1 and 2 endorsed that no written statement
is required to file by defendants no.1 and 2. It is submitted on behalf
of the defendant no.3 that he is resisting the petition. However, no
written statement will be filed. Defendant no.3 will strongly resist the
petition by oral argument. The learned advocate J.B. Singh for the
plaintiff submits that the relations between plaintiff and defendants
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Ch.S. No.711/2018 2 Suit No.7532/1996
no.1 to 3 are not disputed. The nature of suit property is mentioned in
schedule are also not disputed. However, during cross examination of
the defendant no.3 namely Gaurishankar, it is revealed that two
properties situated at Mangari and Nevada, both situated in District
Varanasi, were not included in the schedule of property. This fact is not
informed by the plaintiff to his lawyer before drafting the plaint.
However, it is noticed that two properties were not included in the
schedule. Hence, it is claimed for amendment.
3. The learned advocate R.R. Sharma for defendants no.1
and 2 admits the nature of properties as mentioned in the schedule and
the properties to be included by way of amendment as described by
plaintiff. It is added that it is nobody's case that no property are
separate properties or self acquired property. Hence, it is supported to
allow the amendment.
4. The learned advocate Gidwani for defendant no.3 argued
that the suit is basically filed to challenge the two documents of
settlement dated 28.05.1993 and 29.12.1993. There are three
daughters of deceased Ramdular, who are sisters of plaintiff and
defendants, who are not made parties to the suit. However, if this court
allows the present chamber summons, it will change the cause of action
and resultantly nature of suit. Thus, requested to reject the chamber
summons.
5. It is material to note that suit is 22 years old. The plaintiff
Atmaram Singh is aged 79 years old. The plaintiff and defendants no.1
to 3 are senior citizens. Issues are framed by the court vide Exh.5 in
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Ch.S. No.711/2018 3 Suit No.7532/1996
the year 2015. The testimony as P.W.1 Atmaram Singh is recorded vide
Exh. 8. Defendants no.1 and 2 are failed to appear in witness box.
Defendant no.3 Gaurishankar deposed before the court and his cross
examination by plaintiff has been completed vide Exh.29.
6. At the out set, it is to note that there is no supportive
evidence for contention that the plaintiff has informed to his lawyer in
respect of above mentioned two properties to be included in schedule of
properties. At the same time, it is to note that all defendants are failed
to mention in their written statement that same properties situated in
District Varanasi were remain to be incorporated. It is also pertinent to
note that there is no case of defendant no.3 that following two
properties are self acquired properties of defendant no.2:
a) Plot Nos. 573 and 571 admeasuring 1.3240 Hectares at village
Mangari, Tehsil: Pindara, District Varanasi, Uttar Pradesh.
b) A Building at Village Nevada, Tehsil: Pindara, District:
Varanasi, Uttar Pradesh.
7. On the contrary, on perusal of testimony of D.W.3
Gaurishankar vide Exh.3, it is submitted that above mentioned two
properties were purchased by the deceased Ramdular when defendant
no.3 was minor. It is admitted that no property situated in Mumbai
was standing in the name of defendant no.3. There is no case of partial
partition nor there is a case of defendant no.3 that above mentioned
two properties i.e. Plot no.571 and 573 situated at Mangori and
building situated at Nevada, both properties in district Varanasi has
been disposed of by Ramdular during his life time.
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Ch.S. No.711/2018 4 Suit No.7532/1996
8. As discussed above, it is necessary to note that D.W.3
admits in cross examination that both properties were purchased from
income of and during life time of Ramdular, father of plaintiff and
defendants no.1 to 3.
9. Resultantly it is to note that if we continue with suit is in
present status, it would be decision to the extent of some property and
not all properties of joint family. There will be no end to litigation.
Accordingly, it is crystal clear that for finality of issue in controversy, it
is necessary to incorporate the above mentioned two properties. The
learned advocate J.B.Singh for plaintiff referred various case laws under
the caption of order 6 rule 17 of the Code of Civil Procedure.
10. It is observed that in Ramesh Kumar Agarwal v/s Rajmala
Exports Private Limited and Others, (2012)5 S.C.C,337, that the Court
should adopt liberal approach instead of hypertechnical approach, in
allowing amendment. In the case of Abdul Rehman and Another v/s.
Mohd. Reldu and Others, (2012) 11 S.C.C. 341, it is observed that the
main purpose of allowing the amendment is to minimize the litigation
and plea that relief sought by way of amendment was barred by time is
to be considered in light of facts and circumstances of each case. All
amendments which are necessary for purpose of determining the
question in controversy should be allowed if it does not change basic
nature of suit. In the present case the nature of suit is suit for partition
and validity of two settlement agreement dated 28.05.1993 and
29.12.1993. The question only is whether above mentioned two
properties to be added as sought and whether it caused any prejudice to
the defendant no.3.
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Ch.S. No.711/2018 5 Suit No.7532/1996
11. In my considered view, delay caused do not prejudice to
defendant no.3. It is not going to change the nature of the suit. As
admitted by the plaintiff and defendant no.1 to 3 each one is claimed
equal share in the properties of their father namely Ramdular. There
can be no two opinion that the delay is caused in above mentioned
amendments. It was a mistake of lawyer, and it is plaintiff who was
negligent when he verified the properties and signed on plaint. It can
be compensated by way of costs. According to me, the plaintiff to pay
the costs of Rs.10,000/ to defendant no.3. Consequently, chamber
summons is deserve to be allowed. Hence, the following order is
passed.:
FINAL ORDER
The chamber summon no.711 of 2018 filed by plaintiff is
allowed subject to costs of Rs.10,000/ (Rs. Ten Thousand
only) be paid to defendant no.3.
The plaintiff to deposit above mentioned costs within 10
days and carry out the amendment within 2 weeks from
the date of payment of costs.
(Parties to note that suit is 22 years old, being partheard,
to assist in expeditious hearing)
(GOPAL G.BHANSALI)
DATE: 08.01.2019 JUDGE
CITY CIVIL COURT,GR.BOMBAY.
Dictated on : 08.01.2019
Transcribed on : 09.01.2019
Signed on :
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Ch.S. No.711/2018 6 Suit No.7532/1996
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/01/2019 at 3.20 p.m. MRS.PUSHPA R.WAGH
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge SHRI G.G.BHANSALI
Date of Pronouncement of
JUDGMENT/ ORDER
08.01.2019
JUDGMENT/ORDER signed by P.O.
on
24.01.2019
JUDGMENT/ORDER uploaded on 24.01.2019
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