Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.1647/2019 ..1..
MHCC010093262019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1647 OF 2019
IN
S.C. SUIT NO. 1944 OF 2000 (Disposed of)
Yunus Miya Shaikh Ali Teli (Deleted since Deceased)
1(A) Rabiya Yunusmiya Shaikh
1(B) Haji Miya Yunusmiya Shaikh
1(C) Nurjehan Mohammed Yasin Shaikh
D/o Yunusmiya Shaikh Ali Shaikh
1(D) Mohammed Yusuf Yunusmiya Shaikh.
1(E) Mohammed Amin Yunusmiya Shaikh.
1(F) Mohammed Yasin Yunusmiya Shaikh.
1(G) Mohammed Rafiq Yunusmiya Shaikh.
1(H) Hasina Abdul Jabbar Shah
D/o Yunusmiya Shaikh Ali Shaikh .. Plaintiffs
Versus
Smt. Ruksana Ali Raza Shah ... Defendant.
And
1(B) (a) Mrs. Rashida Hajimiya Shaikh (wife)
1(B) (b) Mr. Imtiaz Hajimiya Shaikh (Son)
1(B) (c) Ms. Yasmeen Hajimiya Shaikh (daughter)
1(B) (d) Mrs. Parveen Asif Shaikh (daughter)
1(B) (e) Naazmeen Munaf Shaikh (daughter)
1(B) (f) Jabeen Shakil Chowkar (daughter)-(Deceased)
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And
1(B) (f) (a) Mohammed Tabish Shakil Chowker
(B) (f) (b) Mohammed Tabrez ShakilChowker ...Applicants.
Appearance
Adv. Harsha Shah for plaintiff/applicants.
Ayyaz Aliraza Shah, Aftab Aliraza Shah, Altaf Aliraza Shah and Samina
Yakub Sayed, Legal Heirs of sole defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 28th January, 2021
ORAL ORDER
Heard both parties on Chamber Summons no.
1647/2019 moved on behalf of plaintiffs for deleting names of plaintiff
no.1(A), plaintiff no.1(B), plaintiff no.1(B) (f) and brining their legal
heirs on record, and carrying out amendment in Consent Terms filed on
18.01.2006 as per the schedule annexed with the chamber summons.
2. Perused the chamber summons alongwith affidavit,
affidavit in reply of the sole defendant and proceedings of the case.
3. From the perusal of proceedings of the case, it appears
that plaintiff had filed the above suit for injunction restraining the
defendant from encroaching upon and carrying on any construction on
the plot admeasuring 6 ¾ Gunthas i.e., 650 B, Survey No.154, Hissa
No.3, City Survey No.1279 situated at Village-Marol, Tal-Andheri (East),
Mumbai 400059. Suit was decreed and disposed of by Consent Terms
filed on 18.01.2006. According to the Consent Terms, defendant shall
get property bearing CTS No.1279 admeasuring 302.42 sq. mts. and
plaintiff were to get property bearing CTS No.1279 admeasuring 329.35
sq. mts.
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4. According to plaintiffs, they and the defendant have
taken possession of their respective plots as per Consent Terms and their
name are mutated in the record of rights vide mutation entry no.2895.
Mutation entry is filed on record at Annexure 1.
5. Original defendant had developed portion of her land
after taking possession of plot admeasuring 302.42 sq. mts. and
constructed a structure ground plus one and created third party rights.
Ground floor is occupied by her children.
6. Plaintiffs desire to sell their portion of plot and
negotiated with Saifee Foundation and Mr. Zuzer Bhato for sale of their
plot. However proposed purchaser pointed out the mistakes in the plan
annexed to the Consent Terms. In clause 2 of the Consent Terms, the
word “green” needs to be added and the word “red” needs to be
deleted. In clause 3 of the Consent Terms, the word “red” needs to be
added and the word “green” needs to be deleted. In clause 5 of the
Consent Terms, the word “red” needs to be added and the word “green”
needs to be deleted. Hence said error is to be rectified to complete the
sale transactions.
7. Plaintiff no.1(A) is expired on 24.12.2012, plaintiff
no.1(B) is expired on 13.01.2016 and plaintiff no.1(B) (f) is expired on
28.01.2019. Their legal heirs as mentioned in the schedule are to be
brought on record. Plaintiff no.1(E) is expired on 11.03.2005 as
divorcée having no legal heirs hence his name is required to be deleted.
Hence advocate for the plaintiff prayed for allowing the chamber
summons in terms of prayer clause (a) to (c) by condoning the delay in
terms of prayer clause (d).
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8. It is to be mentioned that the sole defendant filed reply
and opposed the present chamber summons. Pending the present
chamber summons, sole defendant expired on 08.08.2020 and her
husband also expired on 04.11.2020. Hence plaintiff took out another
Chamber Summons no.99/2021 to bring legal heirs of sole defendant
on record. Death certificates of the sole defendant and her husband are
filed on record. Legal heirs of sole defendant i.e., Ayyaz Aliraza Shah,
Aftab Aliraza Shah, Altaf Aliraza Shah and Samina Yakub Sayed
appeared before the Court on 14.01.2020 and they have given no
objection to allow both chamber summons i.e., Chamber Summons
no.1647/2019 and 99/2021.
9. Section 153 of the Civil Procedure Code (the CPC)
provides general power to amend. According to section 153 of the CPC,
the Court may at any time, and on such terms as to costs or otherwise
as it may think fit, amend any defect or error in any proceedings in a
suit, and all necessary amendments shall be made for the purpose of the
real question or issue raised by or depending on such proceeding.
10. Suit is already disposed of in view of consent terms filed
on 18.01.2006 and consent decree is drawn. From the perusal of
chamber summons alongwith documents, it appears that typographical
errors in the consent terms filed on 18.01.2006 came to notice of
plaintiffs when they started negotiation with Saifee Foundation and Mr.
Zuzer for sale of their plot. Further legal heirs of sole defendant given
no objection to allow the chamber summons. Under the facts and
circumstances, Chamber Summons is liable to be allowed. Hence
following order.
ORDER
1. Chamber Summons No. 1647 of 2019 is allowed and made
absolute in terms of prayer clause (a) to (c).
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2. Delay in filing chamber summons is condoned in terms of prayer
clause (d).
3. Plaintiffs shall carry out the amendment the plaint as per
schedule within 14 days from the date of this order.
4. Chamber Summons No. 1647 of 2019 is disposed of.
5. After compliance of this order, R & P be sent back to the record
Department.
(Sunil T. Soor)
Judge
Date : 28.01.2021 Gr. Mumbai.
Typed on : 28.01.2021
HHJ signed on : 28.01.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28.01.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
28.01.2021
JUDGMENT/ORDER signed by P.O.
on
28.01.2021
JUDGMENT/ORDER uploaded on 28.01.2021
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