Interim Order 2

Order Details: Chamber summons
Pdf Text: Ch/S 161/19 in SU 1631/18 ..1.. Order
CNR NO. MHCC010008972019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 161 OF 2019
IN
SUIT NO. 1631 OF 2018
Mohammed Zuber Shah. ...Plaintiff.
V/s.
Fatima Shakil Zuberi (Kazi) ...Defendant.
APPEARANCES:
Learned Adv. Mr. Priyanshu Mishra for plaintiff.
Learned Adv. Mr. Shaikh Shafi Ahmed for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 18th February, 2019.
: ORAL ORDER :
1. The plaintiff has taken out this Chamber Summons for carrying
out amendment in the plaint as well as in the Notice of Motion
No.2480/2018, as per the schedule annexed to the Chamber Summons.
The proposed amendment is in respect of description and name of the
plaintiff mentioned in the title clause of the plaint and NM No.2480/18.
According to the plaintiff, the name of the plaintiff as Mohammed Zuber
Shah, Constituting Attorney(C.A.) of Syeda Begum and age, occupation
and address of said Mohammed Zuber Shah has been mentioned in the
plaint and the NM 2480/18. By this Chamber Summons, the plaintiff
wants to replace this description by the description as “Smt. Saida Bi @
Syeda Begum through her C.A. Mohammed Zuber Shah”. In respect of
Chamber Summons affidavit of Mohammed Zuber Shah is filed and it is
mentioned therein that the said Mohammed Zuber Shah is in fact
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Ch/S 161/19 in SU 1631/18 ..2.. Order
constituting attorney of Smt. Syeda Begum but the suit is filed by
Mohammed Zuber Shah being constituting attorney of Syeda Begum. It
is also submitted that the plaintiff's Notice of Motion No.2480/2018 has
been decided by this Court and that order had been challenged in the
Appeal from Order No.34970/2018, which was decided on 03.01.2019.
The Hon'ble High Court has given liberty to the plaintiff to carry out
correction in the name of the plaintiff in the present suit. Therefore, the
plaintiff has taken out this Chamber Summons. It is submitted in the
affidavit that no prejudice would be caused to the defendant if, the
amendment is allowed. In the affidavit it is submitted that copy of
Power of Attorney given by Smt. Syeda Begum to the plaintiff, is
already filed by the plaintiff in the suit.
2. The defendant has filed reply to oppose the Chamber Summons.
It is submitted that the plaintiff has withdrawn the proceeding before
the Hon'ble Bombay High Court, when the Hon'ble High Court was
inclined to dismiss the same. However, it is admitted by defendant that
the liberty has been granted by the Hon'ble High Court to the plaintiff
to carry out amendment in the plaint. According tot he defendant, even
changing of the title in the plaint is not going to help the plaintiff as the
plaint has various ambiguous aspects. Therefore, the defendant has
submitted that the Chamber Summons is liable to be dismissed.
The learned Advocate of the plaintiff has submitted that said Smt.
Syeda Begum has not given any Power of Attorney to file this suit.
3. I have heard arguments advanced by both the parties. It is
noticed that in the plaint, the name of the plaintiff is mentioned as
Mohammed Zuber Shah, as described herein earlier being constituting
attorney of one Syeda Begum. This way the title clause gives an
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Ch/S 161/19 in SU 1631/18 ..3.. Order
impression that the suit is filed by Moammed Zuber Shah and not by
Syeda Begum. In the plaint, the Power of Attorney as allegedly given by
Syeda Begum has been relied upon. In the affidavit of Chamber
Summons, it is mentioned that copy of Power of Attorney is already
filed and on perusal of record, I see that there is a copy of Power of
Attorney submitted by the plaintiff. It is xerox copy. In any way, at this
stage, on the basis of it, it can be said that the said Syeda Begum has
given Power of Attorney to the said Mohammed Zuber Shah. The said
Power of Attorney authorizes the said Mohammed Zuber Shah to file
the suit in respect of the suit property on behalf of the siad Syeda
Begum. However, in the suit, the name of the plaintiff is mentioned as
Mohammed Zuber Shah instead of Syeda Begum. The plaint shows that
all the allegations are made on behalf of the said Syeda Begum. In view
of this, the correction in the name of plaintiff in the title clause in the
plaint may be allowed by way of amendment. As far as, amendment in
the Notice of Motion is concerned. I do not find that it is pending. The
said Notice of Motion has been decided by this Court by order dated
01.12.2018 and appeal from it is admitted by withdrawn. Therefore, I
do not think that it is expedient to allow amendment in the disposed
Notice of Motion. For all these reasons, I find that the Chamber
Summons may be partly allowed as observed herein earlier and hence, I
pass the following order.
: O R D E R :
1. The Chamber Summons No.161 of 2019 is hereby partly allowed
in the following terms.
(i) The plaintiff is allowed to carry out amendment in the
plaint as per the schedule annexed to the Chamber Summons,
within two weeks.
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Ch/S 161/19 in SU 1631/18 ..4.. Order
(ii) After carrying out amendment, plaintiff to serve copy of
amended plaint on the defendant.
2. The prayer for carrying out amendment in the Notice of Motion
No.2480/2018 is hereby rejected.
3. In these terms, the Chamber Summons stands disposed of
accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 18.02.2019. City Civil Court, Gr. Mumbai
Dictated on : 18.02.2019.
Transcribed on : 18.02.2019.
Signed on : 20.02.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20.02.2019, at 03.27 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 18.02.2019.
Judgment/order signed by P.O. on 20.02.2019
Judgment/order uploaded on 20.02.2019
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