Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum No.2097.19 in
Suit No.2584/2017
MHCC010118592019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.2097 OF 2019
IN
SMALL CAUSE SUIT NO.2584 OF 20147
Miss. Lena Lobo ]
Age:- 78 years, Occu:- Unemployed, ]
having her address at Flat No.7/8, 3rd Floor, ]
Sita Kunj, Plot No.91, Opp. Bombay Scottish High ]
School, Mahim, Mumbai- 400 016. ]
through her Constituted Attorney Mr. Russel ]
Rodrigues ] … Plaintiff.
Versus
Mrs. Bernice Correia, Aged:55 yrs., ]
Occupation:Service, having address at 601, New ]
Poonam Arcade CHS, 6th Floor, Opp. Geeta Arcade]
Sheetal Nagar, Mira Road(East), District Thane ] ...Defendant.
Appearances :-
Ld. Advocate Sujit Mane for plaintiff.
Ld. Advocate Girish Pawar h/f. Advocate Seema Singh for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATES : 02.09.2024
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Suit No.2584/2017
O R D E R
The plaintiff has filed present chamber summons for the claiming
the relief inter alia;
a) To condone the delay in filing chamber summons.
b) To amend the plaint as per schedule annex to the chamber
summons.
c) To grant other and further relief as the court may deem fit.
2. In affidavit in support the plaintiff has contended that, that
she has filed the suit for partition of the suit premises alongwith other
reliefs. The plaintiff and deceased Ms. Agnes Lobo was the real sister
and she died spinster and left behind her legal heir/ representative i.e.
plaintiff to succeed her interest including the suit premises. It is the
contention of the plaintiff that, the suit premised was purchased by the
plaintiff and deceased by contributing 50% funds and they both have
become joint owner of the suit premises. Since the acquisition of the
suit premises, the plaintiff was residing with the deceased. In the year
2012, the plaintiff shifted from suit premises to Mahim, Mumbai as she
was suffering from breast cancer. She used to visit the suit premises. In
the year 2012, late Ms. Agnes Lobo died at Mira Road, Thane in the
custody of defendant at her house. According to the plaintiff, she died
after three days when she was removed by the said defendant from the
suit premises. After the death of deceased, plaintiff put lock on the suit
premises.
3. It is also submitted that, in February, 2017 when the
plaintiff is visited to suit premises she noticed strangers were inducted
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3 Ch/sum No.2097.19 in
Suit No.2584/2017
by the defendant in the suit premises. Therefore, she issued notice to
defendant about unlawful possession to which defendant replied and
made defamatory imputations and allegations against the plaintiff and
her constituted attorney therefore, the plaintiff filed this suit.
4. According to the plaintiff, after filing of the suit in
September, 2019 when she was cleaning house and taking stock of
inventory of belongings of the deceased by opening her cupboard. The
plaintiff has found and original writing dated 07.12.1997, the said
document is titled as Will. The Will is in respect of the suit premises as
well as the investment of the deceased in bank, FD’s and Mutual funds.
During inquiry, the plaintiff found that, the defendant has also the copy
of said letter/writing. Therefore, by way of this chamber summons,
plaintiff wants bring the subsequent event on record by way of
amendment.
5. The defendant has opposed the chamber summons by filing
reply on the ground that, the said alleged Will is nothing but, an
attempt to mislead the Court. The alleged Will dated 07.12.1997 is
fabricated and bogus as no such Will was aver executed in favour of the
plaintiff by the deceased. The contents of alleged Will are false,
fabricated and concocted by the plaintiff for wrongful gain. The
deceased has appointed the defendant as her nominee in respect of suit
premises as the defendant was taking care of the deceased.
6. It is further submission of defendant that, by way of forged
and bogus Will, the plaintiff with intend to cause grave loss, harm and
prejudice to the defendant filed the present chamber summons.
Therefore, the defendant prays to dismiss it.
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4 Ch/sum No.2097.19 in
Suit No.2584/2017
7. Perused chamber summons, reply and proposed
amendment. Heard both the sides.
8. It is stated by the plaintiff that, after filing of the suit she
found the original writing/ Will of the deceased and the plaintiff wants
to bring the said fact on record. While deciding the issue under Order VI
Rule 17 of CPC, the Court has to allow alteration and amendment in the
plaint if find necessary for the purpose of determining the real questions
in controversy between the parties. Admittedly, the genuineness of Will
cannot be seen at this stage. I have to see that, whether the proposed
amendment can change the nature of the suit. I have gone through the
proposed amendment, it is nowhere seen that the proposed amendment
will change the nature of the suit. It is pertinent to note that the
plaintiff as well as the defendant are claiming their rights on the
property of the deceased. Therefore, the rights of the parties, in respect
of the suit property are the real dispute in this case which requires
determination. The plaintiff wants to bring subsequent event on record.
In my opinion, it is required to bring it on record to determine the real
controversy between the parties. I do not find that, any prejudice will be
caused to the defendant if, the proposed amendment is allowed as the
trial is yet not started hence, in view of the aforesaid reasons, following
order is passed-
ORDER
1. The Chamber Summons No. 2097 of 2019 is hereby
allowed in terms of prayer clause (a) and (b).
2. Plaintiff shall carry out amendment within stipulated
period.
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Suit No.2584/2017
3. After carrying out the amendment, amended be supplied
to other side.
4. No order as to costs.
5. The Chamber Summons No. 2097 of 2019 is disposed of
accordingly
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Dated : 02.09.2024 C.R. No.03
Directly dictated on computer on : 02.09.2024
Draft ready for checking on : 02.09.2024
Draft given to HHJ for checking on : 02.09.2024
Draft corrected by HHJ on : 06.09.2024
Correction carried on : 06.09.2024
Signed on : 06.09.2024
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Suit No.2584/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06.09.2024. 02.40 p.m. Mrs. Vasanti D. Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 02.09.2024.
Judgment/Order signed by P.O. on 06.09.2024
Judgment/Order uploaded on 06.09.2024
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