Interim Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.1204-2019 in SU 8678-1992
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO.1204 OF 2019
(CNR No.MHCC01-006800-2019)
IN
SUIT NO.8678 Of 1992.
(CNR No.MHCC01-009212-2012)
Premchandra Rameshwarprasad Gupta }...PLAINTIFF.
Versus
1.Mrs. Shyamadevi R. Agarwal }
(Since deceased) }
1A. Smt. Hemlata Jaynaraya Mangal }
Nee Hemlata Ramehwarprasad Garwal }
1B. Smt. Premlata Vinaykumar Gupta }
(Since deceased) }
1C. Mrs. Sudharani Mccuskar }
Nee Sudha Rameshwarprasad Agarwal. }
2. Swatantra R. Agarwal }
3.Subhash Agarwal }
4.Anil R. Agarwal }
5.Sudhir R. Agarwal }...DEFENDANTS.
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Shri.J.P.Singh, learned advocate for defendant No.5.
Shri.Vijay Kanoria, learned advocate for defendant No.3.
Shri.Mannadiar, learned advocate for the defendant No.2.
Nobody appeared for the plaintiff.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 08/03/2021)
1. This Chamber Summons is taken out by defendant No.5
for seeking the relief as under;
a. That this Hon'ble Court be pleased to condone the delay if
any for taking out this Chamber Summons.
b. The plaintiffs be allowed to bring all properties of late Shri.
Rameshwar P. Agarwal for administering by the court and
accordingly as per schedule annexed herewith to the
Chamber Summons and other consequential amendment.
2. Read the affidavit filed in support of Chamber Summons
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and reply filed by the defendant No.2. Plaintiff failed to file reply. Heard
learned Shri.J.P.Singh advocate for defendant No.5, learned Shri.Vijay
Kanoria advocate for defendant No.3 & learned Shri. Mannadiar
advocate for defendant No.2. Nobody appeared for the plaintiff to
advance the argument. Perused the entire record.
3. Learned advocate for defendant No.5 argued that suit is
filed for partition of the properties held by Shri. Rameshwar Agarwal
but it transpired to defendant No.5 recently that there are several other
properties of late Shri.Rameshwar Agarwal which are not included in
the present suit. He submitted that plaintiff had assured that plaintiff
will take out Chamber Summons for including those other properties in
the present suit but plaintiff could not take out Chamber Summons due
to some personal problems hence, defendant No.5 has taken out this
Chamber Summons. He argued that suit being for partition, all the
parties to the suit are plaintiffs. He submitted that for doing complete
justice, it is necessary to amend the plaint as per the schedule and
hence, plaintiff may be allowed to amend the plaint.
4. As against this learned advocate for defendant No.2
submitted that Chamber Summons taken out by defendant No.5 for
amendment of plaint is not maintainable. He submitted that cross-
examination of plaintiff is already over and there is inordinate delay in
taking out the Chamber Summons due to which, Chamber Summons is
liable to be dismissed.
5. Learned advocate for defendant No.3 submitted that
Chamber Summons may be allowed.
6. It cannot be in dispute that in a suit for partition all the
parties, having shares in the properties to be partitioned, would be
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plaintiffs. It being so, this court is of the opinion that even the
defendants (who are entitled for shares) in such a suit can take all the
pleas which the plaintiff can take and even the written statements of
such defendants would be in the nature of plaints. But fact remains that
all concerned parties in such suit would be the masters of their own
pleadings. If any party wants to amend its pleading, it is for the
concerned party to file application/Chamber Summons for the same.
Considering it, this court is of the opinion that Chamber Summons
taken out by defendant No.5 for the relief mentioned above is not
maintainable and hence, holding that defendant No.5 is not entitled for
the relief claimed, I pass the following order.
O R D E R
Chamber Summons No.1204 of 2019 is dismissed.
Date : 08/03/2021. (P.P.RAJVAIDYA)
Dictated on : 08/03/2021. Judge, C.R.No.9
Checked on : 08/03/2021. City Civil Court,
Signed on : 08/03/2021. Mumbai.
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4 CS No.1204-2019 in SU 8678-1992
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
10.03.2021 at 12.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 08/03/2021.
Order signed by P.O. on 08/03/2021.
Order uploaded on 10/03/2021.
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