Final Order 1

Order Details: Chamber summons
Pdf Text: CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1323 OF 2019
IN
S.C. SUIT NO.1427 OF 2015
(CNR NO.MHCC010074222019 )
Mr. Amit Dilipkumar Parmar
Aged 32 years, an adult, Indian Service,
residing at Room No. 6, First Floor,
Ahemad Umar Building No. 2, Dr. D'Silva
Road, Mumbai 400 028.
]
]
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] ..... Plaintiff
Versus
1. Mr. Rocky Dilipkumar Parmar
Aged 33 years, Occ. Business, Residing at
Row House No. 3, Mahavir Nagar, Classis
Residency, P.K.Road, near Ramdev Park,
Mira Road (E), Thane 401 107.
]
]
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2. Ibrahim Jusab & Others ] (Deleted)
2. Mr. Uday Shetty
Full Name & Age not known,
Occ : Business
Having its office at Shop No. 15, Shazma
Mansion, M.C.Jawle Marg, Dadar (W),
Mumbai 400 028.
]
]
]
]
]
] ..... Defendants
Appearances :
Ld. Adv. Adv. Deepali Basamia for plaintiff.
Ld.Adv. Sunil R. Sharma for Defendant. No.1.
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CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 3
Date : 27.09.2021
ORDER
1. The plaintiff filed instant chamber summons for
seeking following reliefs :
a) The plaintiff be ordered & allow to amend the Plaint as
per the Schedule Annexed to Affidavit in Support of the Chamber
Summons and permit to carry out amendment and consequential
amendment in the above Plaint and proceedings;
b) For cost of the earlier chamber summons be provided for.
c) For such other and further relief in the nature and
circumstances of the case may require.
2. It is contended by the plaintiff that, he has filed suit
seeking declaration that he is joint tenant having 50% shares in
the tenancy rights of the suit premises and he is entitled to receive
rental income of the suit property.
3. It is contended that, the plaintiff and defendant no. 1
are real brother. The tenancy of the suit shop was in the name of
their grandmother. During lifetime of their grandmother, family
settlement deed dated 30/03/2001 was executed whereby all four
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CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
sons of their grandmother relinquished their right of tenancy in
favour of grandmother. As per aforesaid family settlement, in the
event of death of grandmother the tenancy would devolve upon
plaintiff and defendant no. 1.
4. It is alleged by the plaintiff that, he was guided by
earlier advocate therefore he has claimed declaration of joint
tenancy as well declaration against the defendant no. 2 to issue
joint rent receipt. However, after plaintiff appointed present
advocate it is, advised to him that prayer clause 'a' and 'd' cannot
be granted by this Court due to lack of jurisdiction. Therefore, he
wanted to delete aforesaid prayers.
5. It is further contended that, the plaintiff in the present
suit did not claim partition in the suit property. He is having 50%
share and interest in the tenancy of suit premises. Therefore, by
way of amendment, he wanted to add prayer directing the
defendant no. 1 to put wooden temporary partition in the suit
premises and to hand over the possession of the same to him.
6. It is contended that, the present amendment does not
changes the nature of the suit nor would cause inconvenience to
the defendant. Therefore, the plaintiff prayed for allowing the
present chamber summons.
7. The defendant no. 1 opposed the chamber summons by
filing reply. It is contended by the defendant no. 1 that, the
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CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
proposed amendment changes the nature of the suit. The proposed
amendment also barred by law of limitation as their grandmother
expired 18 years ago. In the event amendment is allowed same
will cause grave prejudice to the defendant no. 1, as the rights in
the suit premises occurred in his favour under the provisions the
Rent Control Act. The plaintiff by filing rejoinder denied the
allegations of defendant no. 1.
8. Heard both the sides. Perused Chamber summons,
reply as well as rejoinder. It is the contention of the plaintiff that
their grandmother namely Smt. Tulsibai Parmar was the original
tenant of the suit premises. During her lifetime the family
settlement deed dated 30/03/2001 was executed whereby the
plaintiff and defendant no. 1 were admitted as a joint tenant to
run the suit shop.
9. It is contended that, the plaintiff in order to earn bread
and butter was doing job. The defendant no. 1 was doing business
from the suit shop. However, after some time he sublet the suit
premises. The plaintiff demanded 50% of share in the rental
income. However, the defendant no. 1 denied for the same.
Therefore, the plaintiff filed instant suit seeking declaration that,
he is the joint tenant, having 50% shares in the tenancy right in
the suit premises, seeking 50% share in the income receive by the
defendant No.1 from the suit premises, declaration that agreement
of family settlement dated 30/03/2001 executed between the
grandmother of the plaintiff and her sons is valid subsisting and
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CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
binding on the defendant no. 1. He further sought relief against
the defendant no. 2, the landlord, to transfer the rent receipt in the
joint name of the plaintiff and defendant no. 1.
10. The plaintiff contended that, due to the wrong advice
of earlier advocate he has sought reliefs prayer clause 'a' and 'd' to
the plaint. In fact, as per family settlement deed dated
30/03/2001. He is entitled for 50% share in the suit premises.
Therefore, wanted to put partition in the suit premises. Thus, the
basis of claim of the plaintiff in a suit is of declaration that he is
joint tenant in the suit premises. Now by way amendment the
plaintiff wanted to delete prayer clause prayer clause 'a' and 'd' and
wanted to add the relief of putting partition in the suit premises.
11. I am of the view that, the present amendment changes
the nature of suit. The defendant in his written statement
contended that, rent receipt of the suit premises is transfered in his
individual name as per Rent Control Act. I am of the view, if the
proposed amendment of prayer for put partition in the suit
premises is allowed it would cause grave injustice to the rights of
defendant no.1.
12. I am of the view, the plaintiff is having the remedy to
approach Small Cause Court for readdressal of his grievances.
Therefore, the prayers of the plaintiff for inserting proposed prayer
clause (aa) cannot be granted.
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CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
13. As far as, regarding prayer for deletion of prayer
clause 'a' and 'd' can be allowed as the plaintiff is the master of his
own suit. The plaintiff also seeking to add prayer for appointment
of Court receiver under Order 40 Rule 1 of Code of Civil
Procedure, 1973. I am of the view, it is not open to this court to
decide the entitlement of the plaintiff for appointment of Court
receiver at the stage of amendment of the plaint. The plaintiff can
be allowed to add proposed prayer clause (dd). Thus, in view of
aforesaid discussion, I am of the view that Chamber summons
needs to be partly allowed. Thus, I proceed to pass following
order:
ORDER
1. Chamber Summons No.1323 of 2019 is partly allowed;
2. The proposed prayer (aa) of the plaintiff is rejected;
3. The proposed prayer (dd) is allowed;
4. The plaintiff to carryout necessary amendment
including deletion of original prayer clause 'a' and 'd'
of the plaint within a period of 14 days from the date
of order;
5. Parties to bear their own cost;
4. Chamber Summons No. 1323 of 2019 is disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 27.09.2021 Greater Bombay.
Dictated on : 27.09.2021
Typed on : 27.09.2021
Signed on : 28.09.2021
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CS 1323-2019 in S.C. Suit no. 1427-2015 Date : 27.09.2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
29.09.2021 at 11.00 am. (Mrs. S.R.Mejari)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of
JUDGMENT/ ORDER
27.09.2021
JUDGMENT/ORDER signed by P.O.
on
28.09.2021
JUDGMENT/ORDER uploaded on 29.09.2021
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