Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 979-18 In CS No. 1051 of 2015
In Suit No. 9292- 1995 H.C.Suit No. 4592-95
1 Date 07.10..2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 979 of 2018
IN
CHAMBER SUMMONS NO. 1051 OF 2015
IN
SUIT NO. 9292 of 1995
(H.C. SUIT NO. 4592 OF 1995)
(CNR NO.MHCC01 0071602018)
Vinay Kishinchand Nasta & Ors. .. Plaintiffs
Versus
Devi Dharamdas Nasta & Ors. .. Defendants
Appearances :
Adv.Nimesh Bhatt for plaintiff present.
Adv.M.S.Bhandari for defendant no.2 present.
Adv.Ashwin Thakkar i/b Tjhakkar and Co. for Defendant
no.3(b),3(c),3(d) and 4 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
C.R. No. : 7
Dated : 07.10.2019
ORDER
1. The plaintiff has filed instant Chamber Summons for
amending the Chamber Summons No. 1051 of 2015 as per
schedule.
2. It is contended by the plaintiff that the original plaintiff
taken out Chamber Summons No. 1051 of 2015 for amendment of
plaint and thereafter seeking to delete the name of defendant no. 1
and 2 who were joined party by mistake or under wrong advice.
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Chamber Summons 979-18 In CS No. 1051 of 2015
In Suit No. 9292- 1995 H.C.Suit No. 4592-95
2 Date 07.10..2019
3. It is contended by the plaintiff that in the year 2015, it is
learned that out of two suit properties one suit property namely
Ranade Road property was sold and transfered by husband of
defendant no. 1 during his lifetime vide, Conveyance Deed dated
13.09.1962 in favour of his sons namely Sham Dharamdas Nasta,
Manohar Dharamdas Nasta and Prem Dharamdas Nasta.
Therefore niether defendant no. 1 nor defendant no. 2 or any
other legal heirs having right, title and interest in the Ranade Road
property.
4. It is further learned for the first time in the year 2015 with
respect to suit property viz. Vincent View Property, the husband of
defendant no. 1 has executed last “Will” and testament dated
13.05.1967 beueathing the said property in favour of his son
Manohar Dharamdas Nasta and Prem Dharamdas Nasta. Thus,
defendant no. 1 and 2 did not have any right, title, interest in
either of the suit property. Therefore, the original plaintiff took
out Chamber Summons No. 1051 of 2015 for deleting the names
of defendant no. 1 and 2 from the aray of defendants. However,
during the course of hearing of the aforesaid Chamber Summons,
the objection was raised by the defendant in respect of prayer
clause and other allegations made in the plaint against the
defendant no. 1 and 2. Therefore, plaintiff took out present
Chamber Summons for amending the Chamber Summons No.
1051 of 2015 and deleting the contents of certian paras mentioned
the schedule.
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Chamber Summons 979-18 In CS No. 1051 of 2015
In Suit No. 9292- 1995 H.C.Suit No. 4592-95
3 Date 07.10..2019
5. The Chamber Summons is opposed by the defendant no. 1
and 2 by filing say. It is contended by the defendant no. 1 and 2
that present Chamber Summons to amend the Chamber Summons
No. 1051 of 2015 is not at all maintainable. The plaintiff ought to
have withdraw the earlier Chamber Summons with liberty to file
fresh Chamber Summons. The Affidavit of earlier Chamber
Summons i.e. Chamber Summons No. 1051 of 2015 would not be
sufficient for the justifying the amendment in present Chamber
Summons.
6. It is further contended by the defendant no. 1 and 2 that
there is a delay in filing Chamber Summons. The defendants filed
their Written Statement, took specific defence and therefore, in
order to defeat the defence of the defendants, the plaintiff took out
both the Chamber Summons.
7. It is further contended by the defendant no. 1 and 2 that the
parties in the Chamber Summons is not correctly and completely
mentioned in the Chamber Summons No. 1051 of 2015 and
present Chamber Summons. The parties of the present Chamber
Summons do not match with the parties of the Chamber Summons
No. 1051 of 2015. The plaintiff mentioned the defendant No. 1, 3
and 3(a) as since deceased which is deviating from the title clause
of the suit. Hence, the defendants for the aforesaid reasons prayed
for dismissal of the Chamber Summons with heavy cost.
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Chamber Summons 979-18 In CS No. 1051 of 2015
In Suit No. 9292- 1995 H.C.Suit No. 4592-95
4 Date 07.10..2019
8. Heard both the sides. Perused Chamber Summons as well as
reply. The plaintiff filed suit for partition. Defendant no. 1 and 2
are the successor of Dharamdas Nasta who is one of the son of late
Mr. Kalumal Nasta. The said Kalumal Nasta was having four
children namely, Krishnadas Kalumal Nasta, Vishindas Kalumal
Nasta, Dharamdas Kalumal Nasta and Hiranand Kalumal Nasta.
The plaintiffs are the branch of Krishnachand Kalumal Nasta. The
original plaintiff filed suit for partition against wives of all other
brothers alongwith defendant no. 2 who is th son of one of the
brother. The suit property which they are claiming to be joint
property are admittedly two properties. One of Ranade Road
Property and other of Vincent View Property.
9. It is the contention of the plaintiff that the Dharamdas
Kalumal Nasta have already disposed off his 1/4th share as per the
law in both the properties. Therefore, the names of defendant no.
1 and 2 needs to be deleted from the suit. The plaintiff by way of
present Chamber Summons further seeking to delete the
allegations made against defendant no. 2 in the plaint. In my
view, in order to decide the controversy raised for deletion of
names of defendant no. 1 and 2 in Chamber Summons No. 1051 of
2015, the present proposed amendments are necessary to be
incorporated in Chamber Summons no. 1051 of 2015. In my view,
the proposed amendment did not change the nature of relief
claimed in Chamber Summons No. 1051 of 2015. Moreover, if
present Chamber Summons is allowed, no prejudice would caused
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Chamber Summons 979-18 In CS No. 1051 of 2015
In Suit No. 9292- 1995 H.C.Suit No. 4592-95
5 Date 07.10..2019
to the defendant no. 1 and 2. Hence, the present Chamber
Summons can be allowed.
10. As far regarding the tenability of present Chamber Summons
is concerned, Rule 43 of Bombay City Civil Court Rules, 1948 do
not prohibit the filing of Chamber Summons to amend the other
Chamber Summons. Hence, I do not find any substance in
objection of defendant no. 1 and 2. Thus, in view of the above, in
my view, the present Chamber Summons needs to be allowed.
Thus, I proceed to pass the following order :
ORDER
1. Chamber Summons No.979 of 2018 is hereby made absolute
in terms of prayer clause “b”.
2. The plaintiff to carry out necessary amendment as per
schedule within 14 days from the date of order.
3. Chamber Summons No. 979 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 07.10.2019 Gr. Bombay
Dictated on : 07.10.2019
Transcribed on : 07.10.2019
Draft submitted on : 07.10.2019
Checked on : 14.10.2019
Signed on : 14.10.2019
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Chamber Summons 979-18 In CS No. 1051 of 2015
In Suit No. 9292- 1995 H.C.Suit No. 4592-95
6 Date 07.10..2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/10/2019 at 12.00 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
07/10/2019
JUDGMENT/ORDER signed by
P.O. on
14/10/2019
JUDGMENT/ORDER uploaded
on
15/10/2019
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