Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CS No.1721/19.
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1721 OF 2019
IN
SUIT NO.1885 OF 2019
Mr. Maruti Tatoba Supal ...Plaintiff.
Versus
Smt. Sushila Pandurang Supal & Anr. ...Defendants.
AND
Mrs. Chaya Santosh Patil & Ors. ..Proposed Defendant No.3 to 6.
Mr. Vijay Dhadam, advocate for plaintiff.
Mr. Subhash Bane, advocate for defendant Nos.1 & 2.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 04th December, 2019
O R A L O R D E R
Chamber Summons is taken out by plaintiff seeking amendment
to the plaint as per schedule and to implead proposed defendants as
defendant Nos.3 to 5.
2. It is the contention of the plaintiff that suit premises was allotted
to the plaintiff and defendants in lieu of old hut / room in new building
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and possession thereof was handed over to them. It is further
contended that plaint was drafted in hurried manner, though necessary
averment is made in the body of plaint about the rights of plaintiff in
respect of suit premises however, through oversight some amendment
in regards to declaration of rights and in prayer clause about
declaration of his rights in respect of suit premises were not
incorporated.
3. It is further contended that averments are made about another
brother of plaintiff late Shri Mahadeo Tatoba Supal and his death and
his legal representatives and their rights in respect of suit premises but
through oversight legal representatives of Mahadeo Supal have not
been joined as party defendants. Proposed defendants are necessary
and proper party. Their presence is necessary in order to enable this
Court to adjudicate question involved in the suit effectually and
completely. Accordingly plaintiff has made prayer in above terms.
4. Defendants opposed Chamber Summons by filing Affidavit in
reply. It is contended that Chamber Summons is not maintainable as
there is no fresh cause of action to file present chamber summons.
Plaintiff is trying to make out entire fresh cause of action which will
change nature of suit. More so, plaintiff has not made any averment
about his alleged 1/3 share, right, title and interest in suit premises. He
has not made any avement seeking leave under Order 2 Rule 2 of CPC.
Thus, Chamber Summons is liable to be dismissed.
5. Perused Chamber Summons, affidavit in support of chamber
summons, reply of defendants and plaint. Heard respective counsel for
parties.
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6. Ld. Advocate for defendants placed reliance upon authority in
the case of Prakash Balaram Nichani Vs. Mohandas Parshuram
Ahuja, 2009 (Supp.1) Bom.C.R.801, in support of his submission that
leave of the Court under Order 2 Rule 2 of CPC is not obtained, so
chamber summons is not maintainable. I have gone through said
authority. It is not applicable to the facts of present case as it is not
subsequent suit. What is barred, second suit on same cause of action in
relation to claiming relief which is omitted to be claimed in first suit.
In present case amendment is sought in the first suit itself, so provisions
of Order 2 Rule 2 of CPC cannot be invoked. Therefore, I do not find
merits in submissions of Ld. Advocate for defendants in that regard.
7. I have carefully gone through the proposed amendments. There
are two sets of amendment. One relate to joining of proposed
defendant Nos.3 to 5 and other relate to contention about declaration of
having 1/3 share in Suit property and consequential prayer clause in
that regard. From the contention in plaint it is apparent that plaintiff
has made averments that said hut/ room is joint family property and all
the brothers have joint right, title and interest in the same. He has also
made averments about the legal representatives of his deceased brother
Mahadeo. He has also made averments that Society had issued share
certificate in respect of said room in favour of defendant No.1, himself
and another brother Mahadeo. Now by proposed amendment he wants
to claim declaration in relation to his specific share in the suit property.
It cannot be said that plaintiff is trying to make out entire fresh cause of
action for seeking relief of declaration in the form of proposed
amendment. It is pertinent to note that in para 31 of plaint there is
specific contention that defendant No.2 wants to deprive plaintiff from
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his rights in the suit premises. That being so it cannot be said that
seeking declaration about right in Suit property amounts to create fresh
cause of action. In my view, proposed amendment is necessary for just
decision of controversy and to avoid multiplicity of proceedings. Ld.
Advocate for plaintiff has placed reliance of authority in the case of
Babarao Pandurang Patil & Ors. Vs. Kalavati w/o Rambhauji
Sathawane & Ors. 2019(4) Mh.L.J.255(Bom). In that case authority
of Hon'ble Supreme Court in the case of Revajeetu Builders and
Developers Vs. Narayanaswamy and Sons and others, (2009) 10 SCC 84
is referred wherein factors to be taken into consideration while dealing
with applications for amendment are laid down. Keeping in view those
factors, in present matter proposed amendment is essential and
necessary to avoid multiplicity of proceeding.
8. So far as addition of proposed defendants are concerned in my
view when plaintiff wants to seek declaration of his share in relation to
Suit property which is as per him joint property of three brothers then
for effective and complete adjudication of all disputes in the matter it is
necessary and proper to join proposed defendants who are legal
representatives of deceased brother of plaintiff. Therefore, I am
inclined to allow impleadment of proposed defendants as defendant
Nos.3 to 5.
9. In light of discussion made above present Chamber Summons
deserves to be allowed. Hence, pass following order:
ORDER
1. Chamber Summons No.1721/2019 is allowed and made
absolute in terms of prayer clauses (a) and (b).
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2. Plaintiff is directed to carry out amendment as per schedule
annexed to Ch/s. within period of two weeks from the date of
order.
3. Accordingly Ch/s. is disposed of.
(M. T. Asim)
Judge
Date : 04.12.2019 Gr. Bombay
Transcribed on : 04/12/2019.
HHJ Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.12.2019, 12.10. p.m.
UPLOAD DATE AND TIME Mrs. Varsha Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
04.12.2019
JUDGMENT/ORDER signed by P.O.
on
04.12.2019
JUDGMENT/ORDER uploaded on 06.12.2019
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