Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum No.1528.19 in
Suit No.18 of 2016
MHCC010086272019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1528 OF 2019
IN
SUIT NO.18 OF 2016
Dinesh Ramchandra Apraj ]
Age:- 40 years, Occu:- Service, ]
R/at: Ganesh Nagar No.1, Committee ]
Near Ganesh Krupa Building, Rajababu Desai ]
Marg, Prabhadevi, Mumbai- 400 025. ] … Plaintiff.
Versus
1. Prabhakar Bhramaji Apraj ]
Age: 73 years, Occu: Retired ]
R/at: 702, 7th Floor, Jai Bhavani Society, ]
(Kashi Niwas), Sayani Road, Dadar (West), ]
Mumbai- 400 025. ]
2. Mohan Ramchandra Apraj ]
Age: 43 years, Occu: Service, ]
3. Surekha Ramchandra Apraj ]
Age: 46 years, Occu: Housewife, ]
R/at: Ganesh Nagar No.1, Committee ]
Near Ganesh Krupa Building, Rajababu Desai ]
Marg, Prabhadevi, Mumbai- 400 025. ]
4. Shivam Harischandra Apraj ]
Age: 54 years, Occu: Service, ]
R/at: Room No.2, Sai Seva Samiti ]
Rani Sati Marg, Pimpri Pada, Near Chandrabhaga ]
School Malad (East), Mumbai- 400 97. ]
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Suit No.18 of 2016
5. Deepak Harischandra Apraj ]
Age: 48 years, Occu: Business, ]
R/at: Matra Pitra Krupa Chawal No.1, ]
Hanuman Nagar, Wagle Estate, Road No.34, ]
Opp. M. Co. Company, Thane. ]
6. Madhukar Bhramaji Apraj ]
Age: 78 years, Occu: Retired, ]
R/at: Room No.14, Sheevam Nagar, ]
B-8, Near Ekta Nagar Colony, Dahanukarwadi, ]
Datta Mandir, Kandivali (west), Mumbai-400 067 ]
7. Kaliddas Son of Sushila Kavale ]
Age: 48 years, Occu: Service, ]
R/at: Ground Floor, Room No.4, ]
6/F/4, Sahyadri Apartment owners Associations ]
P. L. 6-A Building, Khanda Colony, Sector-14, ]
Navin Panvel(West), Mumbai. ] ...Defendants.
AND
1. Pramod Prabhakar Apraj ]
Age: 45 years, ]
having their address at 702, 7th Floor, ]
Jai Bhavani Society, Kashi Niwas, Sayani Road, ]
Dadar(West), Mumbai- 400 025. ] … Respondents
Appearances :-
Learned advocate Mr. Mohan Jadhav for plaintiff.
Learned advocate Atrey Tambe for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 17.10.2024
O R D E R
The plaintiff has taken out present chamber summons for
claiming reliefs inter alia;
a) To allow the plaintiff to carry out the amendment in the
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Suit No.18 of 2016
plaint i.e. Short Cause Suit No.18 of 2016 and in notice of
motion No. 118 of 2016 filed in Short Cause Suit No.18 of 2016
as per schedule annexed to the present chamber summons.
(b) To grant interim and ad-interim relief in terms of prayer
(a).
(c) To provide Costs of chamber summons.
(d) To grant such other and further reliefs as the nature and
circumstances of the case may require.
2. In affidavit in support, the plaintiff has contended that, he
has filed the above suit against the defendants for partition, possession
and injunction. It is further contended that, the plaintiff and the
defendant Nos.2 and 3 are the grand children of Late Bhramaji Apraj
and children of deceased Ramchandra Bhramaji Apraj, the defendant
Nos. 4 and 5 are the sons of deceased Harishchandra Bhramaji Apraj
and the defendant Nos. 1 and 6 are the sons of Late Bhramaji Apraj. It is
also contended that the Late Bhramaji Apraj, was the original tenant in
respect of the Room No.1, situated at Kashi Niwas, Sayani Road, Chawal
No.5, Dadar (West), Mumbai – 400 025. (hereinafter referred as said
room). After the demise of Shri. Bhramaji Apraj the rent receipt dated
10.04.1959 was issued in the name of father of the plaintiff. Thereafter,
on 25.08.2006, father of the plaintiff died leaving behind the plaintiff
and the defendant Nos. 2 and 3.
3. According to the plaintiff, the said room was given under
redevelopment and subsequently permanent alternate accommodation
i.e. Room No. 702, 7th Floor, Jai Bhavani Society, (Kashi Niwas), Sayani
Road, Dadar (w) Mumbai 400 025 (hereinafter referred as ‘suit
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Suit No.18 of 2016
premises’) was allotted in lieu of the said room. It is the further
contention of the plaintiff that he has taken out Notice of Motion No.
118 of 2016. The defendant No.1 has filed written statement. In the
para (5) and (6) of written statement, the defendant No.1 is residing in
suit premises and is owner of suit premises. According to the plaintiff,
the defendant No.1 alone has no right in respect of suit property. It is
further contended that the defendant No.1 filed his reply to notice of
motion No.118 of 2016 and has come with new case that defendant
No.1 is not the owner and his sons i.e. respondents are the owner of suit
property. In the said reply, the defendant No.1 also stated about alleged
agreement dated 09.02.2004 and subsequent agreement dated
22.12.2014 of permanent accommodation registered in favour of
respondents.
4. According to the plaintiff, the defendant No.1 through his
reply dated 02.11.2015 admitted that Bhramaji was the tenant of the
suit premises at Kashi Niwas and further falsely stated that said
premises transferred in the name of defendant No.1 by following due
process of law. It is the contention of the plaintiff that, he was unaware
about the alleged agreements executed in favour of respondents; which
is subsequently stated by defendant No.1 in his affidavit in reply dated
20.06.2018. Thus, the defendant No.1 for the first time stated about the
alleged agreements in para 7.2 and 7.3 of his reply. The said notice of
motion No.118 of 2016 and notice of motion No.2430 of 2018 are still
pending. Thus, in view of contrary stand taken by Defendant No.1 and
the subsequent events which are required to determine the real
controversy between the parties, the proposed amendment is necessary.
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Hence, this chamber summons.
5. The defendant No.1 has resisted the chamber summons by
filing affidavit in reply on the grounds that, the chamber summons
preferred by the plaintiff is devoid of merits and abuse of process of law.
In the suit, the plaintiff only seeks relief in the nature of a decree for
partition, an order of injunction against defendant No.1 and
appointment of a Court Receiver in respect of the suit premises. The
plaintiff now seeks to introduce in principle amendments to the reliefs
sought in the suit, by inter alia seeking relief of declaration that the
documents i.e. agreements dated 9th February, 2004 and 22nd December,
2014 executed in favour of the proposed defendants are illegal and bad
in law and directions to the proposed defendants to produce the
aforesaid agreements. Therefore, by the present chamber summons, the
plaintiff is in effect, seeking new claim/relief against defendant No. 1
and the proposed defendants.
6. It is submitted that the chamber summons is vague, an
after-thought and is filed at a belated stage from the date of filing of the
suit, with an intention to set up a new cause of action against the
defendant No.1 and the proposed defendants. It is pertinent to note
that, the chamber summons have been filed after a period of almost
(03) years and (07) months from the filing of the suit. The plaintiff
became aware of the alleged facts in the chamber summons only after
filing of affidavit in reply of the defendant No. 1 to the notice of motion
No.46 of 2017, even then, there is an unexplained delay of almost after
one (01) year and two (02) months in filing the chamber summons. The
proposed amendment will change the nature of the suit. The proposed
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amendments would lead to misjoinder of causes, which is not
permissible in law. The chamber summons is filed with malafide
intention only to harass defendant No.1. The plaintiff by way of the
present chamber summons is attempting to seek production of
documents in an improper manner which is not permissible. Hence, the
defendant No.1 prays to dismiss the motion.
7. The plaintiff by way of rejoinder denied all the contentions
of the defendant No.1 in affidavit in reply.
8. Perused the chamber summons, affidavit in reply, rejoinder
and proposed amendment. Heard learned advocate for plaintiff and
affidavit in reply of defendant is treated as his argument.
9. It appears that, the defendant No.1 has filed the written
statement wherein he has taken defence that he has original owner as
well as he is in use, occupation and possession of the said room No.1. It
appears that when he filed affidavit in reply to notice of motion
No.46/2017 wherein he has specifically mentioned that he was not
owner of the suit premises and the proposed defendants and the
landlord of the original room entered into an agreement dated
09.02.2004 and vide the agreement dated 22.12.2014 for permanent
alternate accommodation. The defendant by way of said reply had
brought different pleadings which he has pleaded in his written
statement. This subsequent and material aspect goes to the root of
matter. The said aspect is very much required for determination of real
controversy between the parties.
10. So far as, the point of change in the nature of suit is
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concerned, basically the suit is filed for partition and possession and
injunction. Now by way of proposed amendment on the basis of
subsequent event, the plaintiff wants to seek declaration that the
agreement executed between the proposed defendant and landlord and
also about the permanent alternate accommodation are illegal, bad in
law and not binding upon the plaintiff and other defendants. The said
prayer cannot change the nature of the suit as the plaintiff is not
waiving his earlier claim. In addition to his earlier claim, by way of
proposed amendment plaintiff is seeking declaration in respect of
aforesaid documents.
11. So far as, the issue regarding delay in taking out the
present chamber summons is concerned, In the matter of FGP Ltd. vs.
Saleh Husseini Doctor & Anr /2014 (6) ABR 124], ( cited by defendant
No.1) the Hon'ble Bombay High Court has held that when the plaintiff
does not approach the Court with clean hands and does not explain the
delay, then such belated application for amendment deserves to be
rejected.
12. The plaintiff came to know about the subsequent event
during the pendency of the suit when the defendant No.1 has filed reply
to the notice of motion. It is pertinent to note that in the present case
that the defendant No.1 has taken two different stands and he has not
approached the Court with clean hands. Therefore, he cannot blame the
plaintiff on the point of delay. In the catena of judgment, the Hon’ble
Apex Court ruled that, while dealing with the issue of condonation of
delay, the Court has to take liberal view for giving fair opportunity to
the party to substantiate his claim. Therefore, the said delay can be
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condoned subject to costs which will subserve the justice. In the result, I
am inclined to allow the present chamber summons and following order
is passed-
ORDER
1. The Chamber Summons No.1528 of 2019 is hereby allowed
in terms of prayer clause (a) subject to costs of Rs.2000/- payable
to the Bar Library of the City Civil Court on or before next date.
2. After payment of costs, the plaintiff to carry out necessary
amendment within stipulated time.
3. After carrying out amendment, amended copy of plaint be
served to the other side.
4. Chamber Summons No.1528 of 2019 stands disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Dated : 17.10.2024 C.R. No.03
Dictation typed on : 17.10.2024
Checked & Signed on : 19.10.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22.10.2024. 05.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 17.10.2024.
Judgment/Order signed by P.O. on 19.10.2024
Judgment/Order uploaded on 22.10.2024
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