Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 1393/19 In S.C.Suit No. 1938/09
1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1393 of 2019
IN
S.C. SUIT NO. 1938 of 2009
(CNR NO.MHCC01-007727-2019)
1. Mrs. Padma Venkatesh Naidu (deleted)
1a. Mr. Venkatesh Seena Naidu and Ors.
...Applicants/Plaintiffs
Versus
Mr. Venkatesh Muthalgar Subbiah and Ors.
... Defendants
Appearances :
Adv. Pooja Pandey for plaintiff No.2
Adv. Vivek Pandey a/w Ridhima Mangaonkar for defendants.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge.
C.R. No. : 7
Dated : 14.09.2020
ORDER
1. The plainitff has filed instant Chamber Summons for
amendment of plaint as per schedule annexed with Chamber
Summons.
2. The plaintiff filed suit praying for cancellation of
relinquishment dated 06.01.2007 alongwith two affidavits cum
Declaration Deed dated 06.01.2007, Notarised with Sr. No.2454
-- 1 of 6 --
Chamber Summons 1393/19 In S.C.Suit No. 1938/09
2
and 2455 to be decalred as fradulant documents and not binding
on the plaintiff.
3. During the pendency of the present suit the defendants
took preliminary objection of pecuniar jurisdiction. The said
objection came to be decided by my Learned Predecessor by the
order dated 11.11.2009. The aforesaid order came to be
challenged by the defendants by filing Civil Revision Application
No.16/2010 before the Hon’ble High Court. The Hon’ble High
Court vide order dated 08.07.2016, with consent of the parties, set
aside the impunged order with liberty to the plaintiff to file
amendment application. The Hon’ble High Court further granted
liberty to the present defendants to file fresh application
questioning the jurisdiction of this court, if the objection would
survive.
4. In view of the aforesaid order the plaintiff filed
Chamber Summons No.946/19. However the aforesaid Chamber
Summons was came to be disposed off by my predecessor vide
order dated 09.09.2019 with liberty to the plaintiff to file fresh
Chamber Summons. Accordingly, the plaintiff file instant Chamber
Summons for amendment of plaint.
5. Heard both the sides. It is argued by the plaintiff that
he has filed suit for cancellation of Relinquishment Deed. Due to
inadvertance he could not sought relief of declaration. He has
-- 2 of 6 --
Chamber Summons 1393/19 In S.C.Suit No. 1938/09
3
further argued that his relief is not succestible to the monitary
relief. Hence, he may be allowed fo carry out necessary
amendments.
6. Per contra Learned advocate for defendants
vehemently argued that plaintiff No.2 has withdrawn the suit and
plaintiff No.1 is already expired. The legal heir of deceased
plaintiff No.1 is brought on record but in view of Section 15 of
Hindu Succession Act, he can not proceed with the present suit. He
has further argued that as per order dated 08.07.2016 the plaintiff
was duty bound to file amendment application within period of six
weeks but there is inordinate delay in filing said application and
plaintiff has to sought extention from the Hon’ble High Court, on
this count itself the present Chamber Summons needs to be
dismissed with cost.
7. Heard both the sides perused Chamber Summons,
Reply as well as the order dated 08.07.2016 passed by the Hon’ble
High Court. It appears that my predecessor vide order dated
11.11.2009 held that this court is having pecuniary jurisdiction to
try and decide the present suit. The aforesaid order is challenged
by the defendants herein before the Hon’ble High Court. The
Hon’ble High Court with consent of both the parties set aside the
impunged order with direction to the plaintiff to file Chamber
Summons for amendment of plaint.
-- 3 of 6 --
Chamber Summons 1393/19 In S.C.Suit No. 1938/09
4
8. It is admitted fact that as there was delay in filing
above Chamber Summons, the plaintiff obtained the extention of
time from the Hon’ble High Court. Thereafter the plaintiff filed
Chamber Summons No.946/19 which was in time. However the
plaintiff added one Ravindra Pandey as party defendants without
seeking permission of the court, therefore my predecessor by its
order dated 09.07.2019 disposed off, the Chamber Summons
946/19 without going into the merits of the matter with liberty to
file fresh Chamber Summons. It appears to me that Chamber
Summons No.1393/19 was file immediately by the plaintiff.
Hence, I do not find any substance in the objection raised by the
defendants that the present Chamber Summons is not filed within
the time limit prescribed by the Hon’ble High Court.
9. As far as regarding contention of the defendants that
the legal heir of plaintiff No.1 can not proceed with this suit in
view of the Section 15(2) of Hindu Succession Act, in my view the
defendants can raise said objection by filing seperate Notice of
Motion. Hence, I find no substance in the said objection.
10. I have perused the pleadings of the plaint as well as the
prayer clause. It is a specific allegations of the plaintiff that
defendants executed relinquishment deed keeping in dark the
original plaintiff and thus they have executed the said
relinquishment deed by playing fraud. Therefore, the plaintiff
prayed for cancellation of said relinquishment deed. The plaintiff
-- 4 of 6 --
Chamber Summons 1393/19 In S.C.Suit No. 1938/09
5
by way of the amendment is seeking to add prayer of
“declaration”. In my view, the plaintiff has already prayed for
substancial relief in the plaint and relief of declaration is
consequential. Thus, in my view the proposed amendment do not
change the nature of the suit nor cause any prejudice to the
defendants. Hence, in my view the present amendment which is
formal in nature can be allowed for better clearity in the prayer
clause of the plaint. Therefore the present chamber Summons need
to be allowed. Thus, I proceed to pass the following order. :
ORDER
1. Chamber Summons No. 1393 of 2019 is allowed in terms of
prayer clause (a).
2. Plaintiff to carryout necessary amendments within period of
14 days from the date of order or within period of period of 14
days from the regularization of the court.
3. The defendant is at liberty to carry out consequential
amendment. The plaintiff to bear cost of the Chamber Summons.
4. Chamber Summons No.1393/2019 is accordingly disposed
off.
(A.H.Laddhad)
Judge
City Civil & Sessions Court
Dated : 14.09.2020 Gr. Bombay.
Dictated on : 14.09.2020
Transcribed on : 14.09.2020
Draft submitted on : 14.09.2020
Checked on : 15.09.2020
Signed on : 15.09.2020
-- 5 of 6 --
Chamber Summons 1393/19 In S.C.Suit No. 1938/09
6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/09/2020 at 2.00 p.m. (Mrs. Janhavi S. Chavan)
UPLOAD DATE AND TIME NAME OF STOP GAP STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
14.09.2020
JUDGMENT/ORDER signed by
P.O. on
15.09.2020
JUDGMENT/ORDER uploaded
on
15.09.2020
-- 6 of 6 --