Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS NO. 1479 OF 2019
MHCC010082952019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1479 OF 2019
IN
S.C.SUIT NO. 468 OF 2012
Ram Udharam Sumaya and Ors. ...Plaintiffs.
Versus
Chandan Ram Sumaya. … Defendant.
Advocates
None for plaintiffs.
Adv. Paresh S. Madkaikar for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 17th March, 2022.
ORAL ORDER
Present chamber summons is moved on behalf of plaintiffs for
amendment of the plaint under Order 6, Rule 17 of the Civil Procedure
Code (CPC).
2. Defendant filed reply and opposed the chamber summons. On
02.03.2020, advocate for plaintiffs was present and sought adjournment
but since 16.03.2020, plaintiffs and their advocate are absent. Chamber
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ORDER ..2.. CS NO. 1479 OF 2019
summons is pending since 2019. Hence this Court decided to dispose of
the chamber summons on its merit and heard advocate for the
defendant.
3. Plaintiff no.2 is wife and plaintiff no.3 is son of plaintiff no.1.
Defendant is also eldest son of plaintiff no.1. Present suit has been filed
for simplicitor permanent injunction to restrain the defendant from
interfering in possession of plaintiffs in the suit flat.
4. Contention of plaintiffs is that plaintiffs filed the present suit in
hurry as there was imminent threat of dispossession at hands of the
defendant from the suit flat. Hence, plaintiffs could not be pleaded
certain facts and annexed documents. Plaintiffs wants to bring on
record certain facts and documents.
5. Plaintiffs obtained probate dated 27.02.2017 to the Will dated
12.05.1989 of late Udharam Sumaya. Vashu Sumaya, brother of
plaintiff no.1 filed affidavit dated 30.06.2018 in the said Probate
Petition and admitted that he has sold his share in the suit premises by
receiving consideration of Rs.2,50,000/-. Saraswati Chatwani, sister of
plaintiff no.1 also give her consent that she received her share in the
suit premises. Said Will was challenged by the defendant in
Miscellaneous Petition No.67/2017 in Probate Petition No.1210/2015.
The Hon’ble High Court passed order dated 25.07.2017 in said petition
and directed both parties to file the appropriate suit for declaration of
their respective title in respect of the suit flat. Defendant was also
throughout aware of the Gift Deed dated 15.11.2002 executed by
plaintiff no.1 in favour of plaintiff no.2. Said Gift Deed remained
unchallenged.
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6. As per agreement dated 06.11.2005, plaintiff no.1 sold his flat at
Malbar Apartment for consideration of Rs. 56 Lakhs. Entire sale
proceeds of said flat was remitted to the defendant. Defendant by
accepting said amount, sold his right, title and interest in the family
business including the suit flat over and above additional amount
towards his ¼ share as and by way of full and final settlement which
could have devolved on the defendant. Plaintiff no.1 purchased half
share in the suit flat from his brother Vashu Sumaya as sister Sarswati
Chatwani was not entitled to anything as per Udharam Sumaya’s Will
which is probated. Plaintiffs are in possession of the suit flat and not
seeking any declaration. Hence present amendment shall not affect
pecuniary jurisdiction of this Court. Thus it is necessary that all issues
be completed and finally decided in the present suit. Plaintiffs prayed
for allowing chamber summons to implead these subsequent events and
avoid multiplicity of proceedings.
7. Contention of advocate for the defendant is that plaintiffs moved
the present chamber summons belatedly and with malafide intention to
delay final hearing of the suit. Chamber summons is devoid of merits
and not tenable. Defendant filed his written statement stating his legal
rights in the suit flat. Plaintiffs had filed notice of motion no.513/2012
in the present suit for identical relief. On 13.06.2013, this Court
dismissed said notice of motion no.513/2012. Plaintiffs preferred an
appeal against said order and the Hon’ble High Court vide order dated
03.03.2015 partly allowed said appeal from order by granting relief in
terms of prayer clause (a) in the plaint and directed both parties to file
appropriate suit for declaration of their respective title in respect of the
suit flat. Plaintiffs did not file appeal against said order dated
03.03.2015. Hence said order attained finality. However plaintiffs
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ORDER ..4.. CS NO. 1479 OF 2019
chosen to file the present chamber summons instead of filing
substantive suit in compliance of order and direction of the Hon’ble
High Court.
8. Plaintiffs have liberty to apply for reliefs as prayed in the present
chamber summons at the time of filing of the suit however plaintiffs
omitted to apply for leave under Order 2, Rule 2 of the C.P.C. Plaintiffs
is claiming declaration of ownership and rights in the suit flat by way of
present chamber summons without amending prayer clause of the suit.
Proposed amendment will completely change the existing nature of the
suit. Allowing of present chamber summons will take away valuable
defence accrued in favour of the defendant. Schedule of proposed
chamber summons does not disclose any cause of action in relation to
the period of filing of the suit. Cause of action in the schedule of
chamber summons is totally different than the cause of action originally
alleged in the plaint. Cause of action for filing suit for declaration of
title is a fresh and cannot be in any way connected with alleged cause of
action of the year 2012 when the suit was filed. Plaintiff willfully
avoided to file fresh suit.
9. Plaintiffs are relying on fabricated documents to deprive
legitimate rights of the defendant in the suit flat. Defendant denies that
plaintiff no.1 become absolute owner of the suit flat. Defendant also
denies that he relinquished his right in the suit flat. Defendant denied
all adverse allegations against him in the chamber summons and
submitted that plaintiff no.3 i.e., brother of the defendant used plaintiff
no.1, their father as tool to grab the suit flat. Allegations made by
plaintiffs in the schedule of present chamber summons are not at all
relevant for the decision of the issues involved in the suit. Plaintiffs are
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not entitled for alleged relief of declaration as mentioned in the
chamber summons. On all these counts, he prayed for dismissal of
chamber summons.
10. In support of contention, advocate for the defendant relied on the
judgment of the Hon’ble Apex Court in
M/s. Modi Spinning & Weaving
Mills Co. Ltd. And another v/s. M/s. Ladha Ram & Co. [ (1976) 4 SCC
320] to say that amendment of pleading cannot be allowed when the
effect would be to displace the opposite party and deprive him of a
valuable right already accrued to him and entirely different and new
case cannot be substituted by this process. He also relied on the
judgment of the Hon’ble Apex Court in
M. Revanna v/s. Anjanamma
(dead) by Legal Representatives and Others [(2019) 4 SCC 332] to say
that as per proviso to Order 6, Rule 17 of the C.P.C., amendment of
pleadings after commencement of trial is not permissible except under
conditions stated therein, neither amendment be claimed as a matter of
right nor has the Court absolute discretion to allow amendment in view
of proviso, and belated application for amendment, which if allowed,
would result in travesty of justice, liable to be rejected.
11. Perused the proceedings of the case. It appears that plaintiffs filed
the present suit against the defendant simplicitor for injunction not to
dispossess plaintiffs from the suit flat without following due process of
law. Admittedly issues are framed on 03.08.2019. On the same day,
advocate for plaintiffs tendered the present chamber summons. Thus
the trial is not yet commenced. Hence the second citation,
M. Revanna
v/s. Anjanamma (dead) by Legal Representatives and Others [(2019) 4
SCC 332] relied on by advocate for the defendant is not applicable in
the factual matrix of the case.
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ORDER ..6.. CS NO. 1479 OF 2019
12. The first part of the citation,
M/s. Modi Spinning & Weaving Mills
Co. Ltd. And another v/s. M/s. Ladha Ram & Co. [ (1976) 4 SCC 320]
is in respect of amendment of written statement and its says that
amendment cannot be allowed when the effect would be to displace the
plaintiff suit and deprive him of valuable right already created to him.
Second part of said citation says that entirely different and new case
cannot be substituted by way of process of amendment of pleading.
Under the facts and circumstances of the present case, first part of
judgment of the Hon’ble Apex Court is not applicable to the present
case. However the second part can be taken into consideration to see
whether the proposed amendment would change completely the case
made out by the plaintiff originally in the plaint.
13. Order 6, Rule 17 of the C.P.C. deals with amendment of pleadings
and provides that the Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such a manner and on
such terms as may be just, and all such amendments shall be made as
may be necessary for the purpose of determining the real question in
controversy between the parties. Proviso to Order 6 Rule 17 of the C.P.C.
is not applicable at this stage as the trial is not commenced but moot
question before the Court is that whether the proposed amendment is
necessary for the purpose of determining the real question in
controversy between the parties.
14. Suit is filed in the year 2012 for simplicitor injunction on the
ground that defendant is threatening to dispossess plaintiffs from the
suit flat. Plaintiff has not sought declaration that he is the absolute
owner of the suit property by virtue of Will Deed dated 12.05.1989 of
father of plaintiff no.1. As the suit is not for declaration, obtaining
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ORDER ..7.. CS NO. 1479 OF 2019
probate on the basis of said Will is immaterial for decision of this suit.
Further execution of Gift Deed dated 15.11.2002 by plaintiff no.1 in
favour of plaintiff no.2 is also not material as plaintiffs are not claiming
any right on the basis of said Gift Deed as well as Will. The question
whether defendant relinquished his right in the suit properties or the
flat also not material as the present suit is not for declaring plaintiffs as
sole owner of the suit property.
15. The Hon’ble High Court in probate petition no. 1210/2015 by
order dated 25.07.2017 observed that by granting probate of the Will of
Mr. Udharam Sumaya, this Court has not decided title of the deceased
in respect of the said property in question i.e., the suit flat and both
parties will have to file appropriate suit for declaration of their
respective title in respect of the property in question. It is also observed
that respondent therein (plaintiff in this suit) cannot claim ownership in
respect of said property on the basis of probate granted by this Court on
27.07.2017. In view of aforesaid order, counsel for the petitioner
therein (defendant in the present suit) sought liberty to withdraw the
petition and petition is accordingly disposed of as withdrawn.
16. Admittedly neither plaintiffs nor the defendant filed separate suit
for declaration of their rights in the suit flat. However from the perusal
of schedule of chamber summons and affidavit in support of present
chamber summons, it appears that plaintiffs is seeking declaration of
their ownership on the basis of Will or Probate by way of present
chamber summons without amending the prayer clause of the suit.
17. Cause of action for filing the present suit arose on 09.02.2012
when the defendant telephoned plaintiffs and made inquiry about
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ORDER ..8.. CS NO. 1479 OF 2019
receipt of legal notice dated 01.02.2012. It is alleged that defendant
given threat by stating that legal notice dated 01.02.2012 is just
beginning of the process which was given in relation to the suit flat.
Claiming of ownership on the basis of Will or probate is a new case and
based on different cause of action which was subsequent to the filing of
the suit. Plaintiffs are expanding scope of present suit without claiming
declaration by way of present chamber summons.
18. From perusal of the issues framed by this Court at Exh.10 on
03.08.2019, it is evident that the proposed amendment is not at all
necessary for the purpose of deciding the real question in controversy
between the parties. Under the facts and circumstances, this Court is of
the view that the proposed amendment is not at all relevant and
necessary for purpose of determining the real question in controversy
between the parties. Under the admitted facts and circumstances of the
case, present chamber summons is liable to be dismissed. In the result,
following order.
ORDER
1. Chamber Summons No.1479 of 2019 is dismissed
2. No order as to costs.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 17.03.2022
Typed on : 17.03.2022
HHJ signed on : 17.03.2022
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ORDER ..9.. CS NO. 1479 OF 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 17.03.2022, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.03.2022
JUDGMENT/ORDER signed by P.O.
on
17.03.2022
JUDGMENT/ORDER uploaded on 17.03.2022
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