Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.958 OF 2018
CNR NO.MHCCO10070852018
IN
S.C. SUIT NO.1215 OF 2015
CNR NO.MHCCO10070852018
Eldora CoOperative Housing
Society Limited and others ..Plaintiffs
V/s
Green Valley Developers and anr ..Defendants
Ld. advocate Mr.Giriraj for plaintiffs
Ld. advocate Mr.Rohit Joshi for defendant no.2
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 11/09/2019
ORAL ORDER
1. The chamber summons has been filed by the original
defendant no.2 to amend the written statement and
counter claim.
2. Heard. Perused the record.
3. Ld. Counsel for defendant no.2 submitted that
plaintiffs have filed this suit for declaration and
injunction in respect of property bearing CTS
No.104A/1 and CTS 104A/3 situated at village
Tirandaz, Taluka Kurla, Powai(hereinafter referred to
as the suit property). The defendant no.2 has filed
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written statement and counter claim. Defendant
no.2 learnt that defendant no.1 has executed
registered deed of conveyance for 10003.2 square
meters i.e. entire plot. The said conveyance has
caused serious prejudice to defendant no.2 in respect
of his right of prescription the road in the suit
property. The deed of indenture of lease dated
27/12/1960 shows access road from CTS
No.104A/4/2 to CTS No.25 through CTS No.104 and
to CTS No.63 through CTS No.104 and 103 was in
existence. Plot No.104 was purchased by one
Chittranjan Sharma vide registered deed of
conveyance dated 18/09/1987. Even prior to the
said deed, access road from CTS No.104A/4/2 to
CTS No.25 through CTS No.104 and to CTS No.63
through CTS Nos.104 and 103 was in existence and
was in continuous use of defendant No.2. Even after
the execution of the agreement dated 23/12/1993,
the said access/right of way was peaceably and
openly enjoyed by defendant no.2. Defendant no.2
submitted that execution of the conveyance dated
30/03/2017 in respect of the entire area of the plot is
illegal and not binding upon defendant no.2 as much
as defendant no.2 was all alone using the said right
of way/access and keeping him dark, defendant no.1
ought not to have executed the conveyance deed.
Hence, defendant no.2 has filed this chamber
summons for amendment to counter claim to bring
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the subsequent events on record.
4. Ld. Counsel for the plaintiffs submitted that the
matter is at the stage of framing of issues and
therefore the stage of trial has commenced and the
law in this regard is that once the trial has
commenced, this Court ought not to interfere or
permit any amendment. Defendant No.2 has not
given explanation as to why he wanted to bring the
said facts on record. This amendment changes the
nature of defence and on this count alone the
chamber summons ought to be dismissed. Ld.
Counsel for the plaintiffs submitted that defendants
cannot amend the written statement and counter
claim. He cannot challenge the entire deed of
conveyance in the counter claim to create cloud over
the title of the plaintiff. Defendant no.2, by filing a
separate suit can challenge the conveyance executed
between plaintiff and defendant no.1.
5. Ld. Counsel for defendant no.2 submitted that he has
nothing to do with the transfer of right or title in
favour of the plaintiffs except to the extent of way
used by him and the same has been categorically
mentioned in proposed amendment separately at
para no.23. He pointed out so many words that the
defendant no.2 contended that the said conveyance
is not binding upon defendant no.2 and shall not
effect the right of defendant no.2 for access to his
property which he has right of prescription.
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Therefore, the defendant no.2 wish to bring
subsequent development pending the suit.
6. Ld. Counsel for the plaintiffs argued that party
should not be allowed to set up a new case and
placed reliance upon the judgment of Hon'ble
Supreme Court.
South Konkan Distilleries and anr V/s Prabhakar
Gajanan Naik of Hon'ble Apex Court, Civil Appeal
No.5567 of 2008 dated 09/09/2008.
The Hon'ble Supreme Court reiterated the view laid
down in the case of A.K.Gupta & Sons Ltd V/s
Damodar Valley Corporation, AIR 1967 SC 96,
wherein the Hon'ble Supreme Court held that, “The
general rule is that a party is not allowed by
amendment to set up a new case or a new cause of
action, particularly when a suit on the new cause of
action is barred. However, an exception was given in
that decision saying where the amendment does not
constitute the addition of a new cause of action or
raise a different case, but amounts merely to a
different or additional approach to the same facts,
the amendment is to be allowed even after expiry of
the statutory period of limitation.”
7. Herein there is no such contingency. The proposed
amendment is based upon the development pending
the suit and therefore is required to be considered. It
would be profitable in that regard to refer the
Judgment of Hon'ble Bombay High Court in the
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case of Sheshrao Bhaurao Sable Vs Ganesh
Mahadeorao Sable and ors, 2006(6) Mh. L.J. 728.
8. Ld. Counsel for defendant no.2 placed reliance upon
the following judgment:
B.K.N.Pillai V/s P.Pillai and another, of Hon'ble
Supreme Court, AIR 2000 Supreme Court 614.
9. It appears that the suit is filed seeking direction
against defendants to remove the erected gate and
further restraining the defendants from claiming any
access through the suit property. Defendant no.2 has
filed written statement cum counter claim, thereby
claimed his right through the said way by way of
right of prescription. The defendant no.2 is seeking
declaration of his right of use of way through the
property i.e. survey No.104A/1 and 104A/3.
During the pendency of the suit, this property has
been transferred in favour of the plaintiffs by
defendant no.1. The said transaction was after filing
of written statement cum counter claim. The said
events are subsequent events pending the suit. When
defendant no.2 is claiming his right over the way
from the above said properties of which there is a
subsequent transaction of transfer of title, in that
eventuality, the said fact is required to be brought on
record. At this juncture, the Court is not expected to
go into merits of the amendment. The objection of
the Ld. Counsel for the plaintiffs is that defendant
no.2 ought to have filed a separate suit challenging
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the said conveyance. The main relief of defendant
no.2 is for declaration of his right of use of way and
therefore the challenge to subsequent document of
transfer of title to the extent of his right of use of way
is ancillary to the main relief. Therefore, the
Chamber summons needs consideration. In view of
the subsequent development, in order to avoid
multiplicity of the proceedings, and issues arising
between parties in respect of same subject matter
should be decided in a single compass of suit or
litigation. Thus, in order to curb the multiplicity of
the proceedings and further after considering the
above facts, the Chamber Summons needs
consideration. Hence, it is expedient to pass
following order:
ORDER
1. Chamber summons no. 958/18 is made absolute
in terms of prayer clause (a).
2. Defendant no. 2 to carry out necessary
amendment within a period of 14 days from today.
3. Chamber summons is disposed of accordingly.
11/09/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 11/09/2019
Transcribed on : 19/09/2019
Signed on : 06/11/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
06/11/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
11/9/2019
Judgment and order signed by P.O. 06/11/2019
Judgment/order uploaded on 06/11/2019
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