Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S 1249/19 (Suit 1081/12)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1249/2019
(CNR NO.MHCC01006966 2019)
IN
S.C. SUIT NO.1081/2012
Ansari Niyaz Ahmed Zamir Uddin ..Plaintiff.
V/s.
Ansari Gayasuddin Zamirdar ..Defendant.
Appearances :
Adv. Virendra Tripathi for plaintiff.
None present for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 09.11.2021.
ORDER
1. The plaintiff has filed instant chamber summons seeking
following reliefs :
(a) That this Hon'ble Court be pleased to allow the plaintiff to
carry out amendment as per the schedule annexed to the
Chamber Summons and be further pleased to allow the
consequential amendment.
(b) Cost of the chamber summons be provided for and
(c) Such other and further reliefs as the nature and
circumstances of the case require.
2. It is contended by the plaintiff that, he has filed instant suit
for permanent injunction against defendant restraining him from
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surrendering, selling, disposing, alienating, encumbering, mortgaging,
transferring the suit property bearing Room no.8 and shop premises
bearing no.2 situated at Navsari Building, Piperoad, Kurla(W), Mumbai
400 070.
3. It is contended by the plaintiff that, his evidence is already
commenced and during pendency of crossexamination, the defendant
along with his two unknown associates dispossessed him from the suit
shop no.2A. It is contended that, initially, during lifetime of his father,
shop nos.2A and 2B had common number i.e. Shop No.2 and after
demise of his father the plaintiff and the defendant by mutual
understanding and for the sake of convenience, partitioned the suit
shop no.2 in two parts and gave numbers as Shop no.2A and Shop
no.2B. It is contended that, the shop no.2A came in share of the
plaintiff. Thereafter, he had given the said shop no.2A on leave and
license to one Asif Hussein Kadri, who is running business of Salon in
the name and style as "Azmi Hair Cutting Saloon" and the defendant is
carrying on his business from the shop no.2B.
4. It is further contended that, after conducting substantial
crossexamination, the defendant realized that, he has no defence in
support of his case, therefore, on 22.5.2019, with his two unknown
associates, the defendant broke open the lock of shop no.2A and
committed theft of his belongings kept in the shop. The aforesaid
incident was informed by licensee Asif Hussein Kadri to the plaintiff on
the same day. Therefore, the plaintiff approached the defendant and
thereupon, the defendant threatened him with dire consequences to his
life and lives of his family members.
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5. It is further contended by the plaintiff that, as he is residing
at Bhiwandi and therefore, in order to lodge report he reached at
Sakinaka police station but the police officer asked him to come on next
date. The police also informed the plaintiff that, they will try to mediate
in the matter. But after lapse of time, he was told to give a complaint in
writing.
6. It is alleged by the plaintiff that, the defendant committed
theft of his belongings worth Rs.75,000/ and the defendant put his
lock on his shop no.2A and thereby, took illegal possession of the suit
shop. It is contended by the plaintiff that, during pendency of the trial,
he has been illegally dispossessed by the defendant from shop no.2A,
which is a subsequent event occurred and that needs to be incorporated
in the plaint. Therefore, he has filed instant chamber summons.
7. The defendant opposed the chamber summons by filing
reply. It is contended by the defendant that, the plaintiff was never in
possession of the suit shop no.2 and suit shop was never subdivided
and numbered as 2A and 2B. It is further contended that, the plaintiff
also lost temporary injunction which was confirmed till Hon'ble High
Court. The plaintiff by way of proposed amendment altering the nature
of the suit and improving his case by contending that, the shop no.2
was partitioned and he was in possession of alleged shop no.2A.
Therefore, the defendant prayed for rejection of the chamber summons.
8. Heard Ld Advocate for the plaintiff. As pleadings of the
chamber summons were completed and chamber summons was
pending since long, therefore I have taken up the chamber summons for
adjudication on the basis of pleadings of the parties.
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9. The plaintiff has filed instant suit simplicitor for injunction.
It is the case of the plaintiff that, his father was originally tenant of
Room no.8 and Shop no.2. He along with his family members resided in
the room no.8 till demise of his parents. The defendant was residing at
Saudi and he never resided in the Room no.8 nor conducted business
from Shop no.2. It is further contended that, when the defendant came
back to India and he was not having shelter, the plaintiff allowed him to
reside in the suit premises.
10. The defendant resisted the claim of the plaintiff by filing
Written Statement, thereby he has contended that the plaintiff by
executing Declaration dated 13.6.2009 and 13.7.2009 and vide
agreement dated 1.8.2009, relinquished his tenancy rights in his favour.
Therefore, the suit of the plaintiff needs to be dismissed.
11. The plaintiff by way of proposed amendment in his
pleadings alleged that, the aforesaid documents are forged and
fabricated. He never executed such Declaration and Agreement. It is
the specific case of the plaintiff that, he is carrying on business from
shop no.2 and he has never given up his claim on the suit properties.
But the defendant, with malafide intention, is trying to dispossess him
from the suit property, therefore he is constrained to file present suit.
12. The plaintiff, by way of proposed amendment, alleged that
on 22.5.2019, the defendant and his two associates broke open the lock
of the shop no.2A and committed theft of articles worth Rs.75,000/
The plaintiff further by way of proposed amendment contended that,
shop no.2A and shop no.2B initially had common number i.e. shop
no.2. After demise of his father, this shop no.2 was mutually partitioned
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between the plaintiff and the defendant and shop no.2A came in his
share and since then, he is in possession of the said shop. It is further
contended by the plaintiff that, he has letout said shop no.2A to one
Asif Hussein Kadri, who was running his hair salon in the name and
style as 'Azmi Hair Cutting Saloon'.
13. Admittedly, the plaintiff filed Notice of Motion No.1313/
2012 for injunction. The aforesaid notice of motion came to be rejected
vide order dated 5.10.2012. My Ld. Predecessor while rejecting the
Motion specifically observed in para7 of the order that, the plaintiff
gave no objection by executing AffidavitcumDeclaration of Room no.8.
My Ld. Predecessor further in para6 of the order observed that, rent
receipt of shop no.2 stands in the name of the defendant. The Notice of
Motion was rejected on the ground that, the plaintiff failed to prove
prima facie case in his favour.
14. It is pertinent to note that, the plaintiff by way of proposed
amendment for the first time came up with a case that shop no.2, after
demise of his father, was subdivided into shop nos. 2A and 2B as per
family arrangement and he was in possession of shop no.2A.
15. Admittedly, the trial has commenced and substantial cross
examination of PW1 is recorded. The plaintiff failed to give reason as
to why he could not plead the aforesaid fact before commencement of
the trial. It appears that, the plaintiff, by way of proposed amendment,
is trying to come up with a new case of his possession over the shop
no.2A, which, according to him, he was in possession by way of
partition between him and the defendant. I am of the view that, the
proposed amendment changing the nature of the suit because the
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plaintiff filed the suit simplicitor for injunction without seeking relief of
possession or declaration. Hence, I do not find any substance in the
chamber summons and same needs to be rejected. Thus, I proceed to
pass following order:
ORDER
1. Chamber Summons No.1249 of 2019 is dismissed.
2. Costs in cause.
3. Chamber Summons is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 9.11.2021 Greater Bombay.
Dictated on : 9.11.2021
Typed on : 10.11.2021
Signed on : 12.11.2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
12.11.21 at 2. pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 9/11/2021
JUDGMENT/ORDER signed by P.O. on 12/11/2021
JUDGMENT/ORDER uploaded on 12.11.2021
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