Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CH-S 1136-2019 IN Suit No.3237/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.1136 OF 2019
IN
LONG CAUSE SUIT NO. 3237 OF 2018
Mr. Shaikh Abdul Sattar Abdul Haq ]....Applicant
(Original Plaintiff.)
Versus
Feroz Hanif Shaikh & Ors. ]... Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 16
th
August, 2019.
Advocate Rizvi for plaintiff present.
Adv. Ms. Ansari defendant no. 1 to 3 present.
Advocate Ms. Mhatre for defendant/MCGM present.
Adv. V.T.Dubey for applicant present.
O R D E R
1. Perused. Heard.
2. In a suit seeking declaration of nullity of structural audit
report and repairs permission and a mandatory injunction directing
defendant no. 4 Corporation to demolish the alleged unauthorised
construction; the alleged tenants, in the building sought to be
demolished, have taken out Chamber Summons to add them as
defendants 6 to 13. It is their case that they are original monthly
tenants in said building and therefore the order that would be passed in
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this suit will affect their rights a nd interest. Thus, they are necessary
parties to the suit.
3. The Chamber Summons is opposed on various grounds.
The status of applicant as the tenants of defendant no.5 in the premises
sought to be demolished is also denied. It is also contended that the
chamber summons is signed by only one of the applicants and so it is
not maintainable on behalf of those who have not signed it.
4. The applicants have produced on record certain documents
with list Exh. 11. Those reveal that applicant no. 1,3 and 5 to 7 reside in
the building named Aayesha Manzil. Thus, they are the resident of the
building which is the subject matter of the suit. The denial of status of
applicants as tenants in Aayesha Manzil is for want of knowledge as
stated by the plaintiff in paragraph 3 of the affidavit in reply. Thus, the
statement on affidavit in support of Chamber Summons can be accepted
to hold that the applicants are the tenants in Aayesha Manzil. The suit
is seeking demolition of said building or the alleged new construction
being raised at its place. In such circumstances, any order that may be
passed in present suit shall affect the rights of applicants.
5. Perusal of Chamber Summons reveals that though it is taken out
by 8 people, it is not signed by all of them. Even the Affidavit of only
applicant No.6 is filed in support of the Chamber Summons. In view of
this only the applicant No.6 can be added as a defendant in the suit.
This is so as the authority by other applicants to applicant No.6, to
apply on their behalf, is absent. In such circumstances, I hold that
Chamber Summons can be allowed only to the extent of applicant No.6.
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Hence, the order:
ORDER
1. Chamber Summons No. 1136/19 is allowed only in terms of
prayer clause (a) and only to the extent of applicant no. 6.
2. Plaintiff to amend the title of the plaint accordingly.
3. Plaintiff shall carry out the amendment within a week and shall
serve the newly added defendant at the earliest. Newly added
defendant shall file Written Statement within 30 days thereafter.
4. Costs in cause.
Sd/
(A.N. MARE)
Judge,
16/08/2019 City Civil Court, Mumbai.
Dictated On : 16.08.2019
Transcribed on : 19.08.2019
HHJ Signed on : 21.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
22.08.2019 04.20 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
16.08.2019
JUDGEMENT /ORDER signed by
P.O. on
21.08.2019
JUDGEMENT /ORDER uploaded
on
22.08.2019
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The plaintiff has sought amendment in the Suit to plead passing of
speaking order by the defendant Corporation and the nullity thereof.
Amendment is sought on the ground that the speaking order is passed
after filing of the suit and thus is a subsequent event. Consequential
amendment is also sought in prayer clause.
3. Amendment is opposed by the defendant on the ground
that, if the Chamber Summons is allowed then it will change the nature
of the suit.
4. It is admitted fact that the speaking order is passed after
presenting the suit. In view of this the plaintiff can legitimately be
allowed to bring on record subsequent event.
5. Though it is submitted that the nature of suit will change,
if the amendment is allowed, it will not be so as the suit will remain a
suit for declaration and injunction. Hence, Chamber Summons needs to
be allowed. Consequently I pass following order.
ORDER
1. The Chamber Summons is made absolute in terms of prayer
clause (a).
2. Plaintiff shall amend the plaint within two weeks from today.
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3. Plaintiff shall serve copy of amended plaint on the defendant and
shall supply typed copy of amended plaint to the Court.
4. Chamber Summons no. 331/18 is disposed off.
5. Costs in cause.
(A.N. MARE)
Judge,
14/08/2019 City Civil Court,
Mumbai.
Dictated On : 14.08.2019
Typed on : 14.08.2019
HHJ Signed on : 14.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
14.08.2019 05.30 p.m. M.S.Padave
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
14.08.2019
JUDGEMENT /ORDER signed by 14.08.2019
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P.O. on
JUDGEMENT /ORDER uploaded
on
14.08.2019
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