Final Order 2

Order Details: Chamber summons
Pdf Text: Ch.Sum No. 1140 /2019 in
S.C. Suit (St.)No.9368/2018. 1
Order.
MHCC010063402019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1140 OF 2019
IN
S.C. SUIT(St.) NO. 9368 OF 2018
Rashida Tajuddin Kazi and Anr. ... Plaintiffs
V/s.
Rafat Kazi and Anr. ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 30/09/2023.
Appearance:-
Ld. Advocate Shri Shri Mangesh Nalawade for the plaintiffs.
None for the defendants.
ORDER
1. Plaintiffs have taken out this chamber summons to grant
leave under Order II Rule 2 of CPC and to carry out amendment to
insert relief of declaration of ownership in the prayer clause of plaint.
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Ch.Sum No. 1140 /2019 in
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2. Defendant Nos. 1 to 4 filed reply affidavit and opposed the
chamber summons.
3. I have heard Ld. Advocate Shri. Mangesh Nalawade for
plaintiffs. Ld. Advocate for the defendant Nos. 1 to 4 is absent to argue
the chamber summons.
4. I have perused record and considered submissions.
Plaintiffs had filed present suit in the year 2018 and taken out Notice of
Motion No. 2369 of 2018 for temporary injunction. The suit is not
registered because of the objection raised by the department. It appears
from the record that, the objection regarding ages of plaintiffs and
defendants, valuation and court fees paid on the suit are complied by
the plaintiffs. So far as an objection regarding notice under section 164
of the Maharashtra Co-operative Societies Act is concerned, said
objection can be kept open with the direction to register the suit and
effect of non issuing the notice under section 164 of Maharashtra Co-
operative Societies Act will be considered at final hearing of the suit.
5. Plaintiffs have sought leave under order II Rule 2 of CPC.
Ld. Advocate for the plaintiffs argued that due to urgency to seek
temporary injunction, plaintiffs have filed suit for perpetual injunction
and declaration of their possession. It appears from record that plaintiffs
and defendant Nos. 1 to 6 are inter-se relatives of each others and
defendant Nos. 1 to 6 were disturbing possession of plaintiffs.
Therefore, plaintiffs were required to file suit for protecting their
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Ch.Sum No. 1140 /2019 in
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Order.
possession. Considering the nature of urgency shown in Notice of
Motion No. 2639 of 2018 and claim of possession, suit for simplicitor
injunction is maintainable, plaintiffs are entitled for leave under Order
II Rule 2 of the CPC.
6. By way of present Chamber Summons plaintiffs asserting
ownership qua the suit premises by way of inserting pleading in para-19
of the plaint. Amendment is at pre-trial stage. It is settled position that
so as to avoid multiplicity of the proceeding, pre-trial arrangement shall
be allowed liberally. The amendment sought is in-connection with leave
under Order II Rule 2 of the CPC. Therefore, no prejudice will cause to
the defendants, if the amendment is allowed.
7. I have perused reply affidavit of defendant Nos. 1 to 4.
They have pleaded their case in the affidavit in contesting notice
motion. The contentions of the defendants can be considered during
trial of the stage. The amendment sought by way of present chamber
summons is not at belated stage. Hence, I do not find any substance in
the objections raised in the reply affidavit. For the above noted reasons,
I pass following order :
- ORDER -
1. Chamber Summons No. 1140 of 2019 is allowed in terms of
prayer clause (a) and (b).
2. Plaintiffs are permitted to carry out amendment as per
Schedule annexed to the Chamber Summons within limitation
and after registration of suit.
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Ch.Sum No. 1140 /2019 in
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3. Leave granted under Order II Rule 2 of CPC.
4. Chamber Summons No. 1140 of 2019 is disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :30.09.2023 Gr. Bombay.
1. Dictated on : 30.09.2023
2. Transcribed on : 03.10.2023
3. Checked and Signed on : 06-10-2023
4. Delivered to Certified :
Copy Section on
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Ch.Sum No. 1140 /2019 in
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06-10-2023 4.00 p.m. Miss K.M.Rana .
Name of the Judge HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 30.09.2023
Judgment/Order signed by P.O. on 06-10-2023
Judgment/Order uploaded on 06-10-2023
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