Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010107842019
CNR NO. MHCC010107842019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1858 OF 2019
IN
S. C. SUIT NO.6210 OF 2004
Madhukar Waman Dixit deceased ]
1a. Prasad Madhukar Dixit ]
1b. Prajakta Anand Lavate ] … Plaintiffs
V/s.
Shubalaxmi Suresh Dixit And Ors ] ....Defendants
Appearances :
Ld. Adv. Mr.Chetan Chotani for plaintiffs.
Ld. Adv. Mr. Kapil Shette for defendant No.1(a) & 1(b)
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 19th April, 2022
ORAL ORDER
1. The present Chamber Summons is taken out by the
defendant No.1(a) and 1(b) for carrying out amendment to the written
statement as per the Schedule annexed to the Chamber Summons. It
was submitted that the plaintiff filed the suit for partition of the suit
flat. After the death of original defendant No.1, the defendant No.1(a)
and 1(b) appeared in the matter and filed their written statement on
14.09.2015. But there was oversight on some facts and defence of law
at relevant time on the part of the advocate and also on the part of
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defendant who was not well aware of the provisions of law. The
present suit is hit for nonjoinder of the necessary party and is also
barred by law. There is also difference in the share sought by the
plaintiff and therefore, in order to bring all these facts on record, it is
necessary to carry out amendment in the written statement and
therefore, application be allowed and defendants be permitted to carry
out the amendment as proposed.
2. The plaintiff filed reply to the Chamber Summons and
denied the contention of the defendant. It was submitted that after the
death of defendant No.1, the defendant No.1(a) and 1(b) stepped into
the shoes of deceased defendant No.1. They have to adopt the defence
of the original defendant. The defence raised in the proposed
amendment was available to the deceased defendant No.1 and
therefore, the amendment filed after the commencement of trial cannot
be allowed. No reasons are mentioned in the application being filed at
belated stage and therefore, the Chamber Summons be dismissed.
3. The Learned Advocate for plaintiff relied upon (i) 2009
volum 2 Supreme Court Case 409,Vidyabai and Ors. V/s.
Padmalatha and Another. It has been held that it is the precondition
that the Court should be satisfied that inspite of due diligence, party could
not introduce amendment before commencement of trial.
(ii) Civil Appeal 189 of 2020, Pandit Malhari Mahale Vs.
Monika Pandit Mahale & Ors. It has been held that it is the
primal duty of the Court to decide as to whether the amendment
is necessary to decide the real dispute between the parties and
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there should be reason to show that why the amendment
application was not filed earlier to adducing the evidence.
4. Heard Learned Advocate for respective the parties at
length. The contents are not reproduced. The plaintiff filed the present
suit seeking 1/4 undivided the share in respect of the suit properties.
Admittedly, the original defendant No.1 died. Legal heir of original
defendant No.1 i.e. Defendant No.1(a) and 1(b). Applicants in
Chamber Summons filed their written statement on 14.09.2015.
Thereafter, the present Chamber Summons is taken out in the year
2019. During this period the issues were framed vide Exh.6 and as per
the order in Roznama dated 29.08.2016 matter was fixed for the
evidence of defendant as the onus to prove was on defendant. The
defendant filed his affidavit of evidence vide Exh.8. Thereafter, due to
death of defendant No.2 the matter was proceeded further and legal
heirs of the deceased defendants were brought on record. On
15.02.2019 the defendant No.1(a) and 1(b) filed application vide
Exh.11 seeking permission to file additional written statement. The
said application was rejected and one of the ground was that no
additional plea can be raised by the successor of the deceased
defendant. Admittedly, the trial has been commenced. The defendant
No.1(a) and 1(b) in the Chamber Summons had stated that due to
oversight they could not carry out the amendment earlier or had not
raised the defence of law at the earlier stage. It seems that in view of
the proposed amendment the defendant No.1(a) and 1(b) wants to
raise defence regarding the nonjoinder of necessary party and the
limitation. The defendant No.1(a) and 1(b) had not stated sufficient
cause for not raising their defence in the written statement at the earlier
stage. Moreover, this defence of law was available to the deceased
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defendant No.1 but it was not raised by her while contesting the matter.
Now the present defendant No.1(a) and 1(b) are bound by the defence
raised by their predecessor. Moreover, the defendant No.1(a) and 1(b)
were also provided with an opportunity to file their written statement
but they had not raised this defence at the earliest possible opportunity.
No specific reasons has been stated as to why the application is filed
after the commencement of trial. It is only mentioned that there was
oversight on some fact and the defendant was not well aware about the
provisions of law. As such party cannot take the defence of ingnorance
of law. The original defendant No.1 had not taken this defence during
her life time. Secondly the defendant No.1(a) and 1(b) were having an
opportunity to raise defence at the time of filing their written statement
but they had not raised this defence. It is not the case that certain facts
arose during the pendency of the suit. The defence of law has to raised
at the earliest. The defendant does not appear to be due diligent to
raise defence at the earliest possible opportunity. No satisfactory
sufficient reasons has been mentioned in the application being filed at
belated stage and therefore, the defendant No.1(a) and 1(b) are not
entitled for the amendment in their written statement. I, therefore,
proceed to pass the following Order:
ORDER
1. Chamber Summons No.1858 of 2019 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 19042022 City Civil Court, Gr. MUMBAI
Dictated on : 19042022
Transcribed on : 21042022
checked on : 21042022
Signed on : 22042022 ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.04.2022 at 11.26 a.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
19.04.2022
Judgment/order signed by P.O. on 22.04.2022
Judgment/order uploaded on 22.04.2022
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