Final Order 1

Order Details: Chamber summons
Pdf Text: CS 2170-19 in S.C. Suit no. 2136-15 1 Date : 18.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 2170 OF 2019
IN
S.C. SUIT NO. 2336 OF 2015
(CNR NO.MHCC010125682019 )
Mrs. Fatima Khan W/o. Abdul Sami .. Plaintiff
V/s.
Mr. Noorul Huda s/o. Kamrul Huda & Anr. .. Defendants
Appearances :
Ld. Adv. A. M. Solkar for plaintiff.
Ld. Adv. M.M. Shetty for Defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 18.09.2021.
ORDER
1. The plaintiff has filed instant Chamber Summons seeking
amendment in the plaint as per schedule.
2. It is the case of plaintiff that she has filed suit for partition
of her parental properties. However, at the time of filing of the suit,
certain mistakes were committed by the earlier advocate which needs to
be amended for proper adjudication of her share.
3. It is contended that at the time of filing of the suit, her
mother was alive but later on she expired. Therefore, her share also
increased to the extent of deceased's share. As per Sharia Law she is
entitled for 1/5th share in the properties of her parents but the
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CS 2170-19 in S.C. Suit no. 2136-15 2 Date : 18.09.2019
percentage of her share has not been properly defined. Therefore,
amendment to that effect is required.
4. It is further contended that Shop No. 51, 54 and Room No.
20 situated at Nagpada are tenanted premises. But Landlord was not
made as a party defendant. Therefore, the plaintiff seeking to add
proposed defendant nos.3 and 4, the Landlord and builder as proper
party in the suit. It is further contended that at the time of filing of the
suit, she was not aware that her father was also owned properties
situated at Chawl No.13, Room No.7 and Room No.12 at Govandi. But,
the aforesaid properties were not included in the plaint.
5. It is further contended that at the time of filing of suit her
mother informed her that Shop No. 51 and 54 were developed by the
builder Sabir Nirman. But, actually, the name of Developer is
Kathawala Realtors LLP. Therefore, in para no. 5 of the plaint, she
wanted to delete the name of Builder Sabir Nirman by substituting the
name of Kathawala Realtors LLP.
6. It is further contended that the aforesaid Room No. 51 and
54 were going to be redeveloped by Kathawala Realtors LLP. Therefore,
the plaintiff and defendants are entitled for permanent alternate
accommodation and also entitled for rent of temporary alternate
accommodation. Therefore, said Developer is also necessary party as
they are in possession of suit shop no. 51 and 54.
7. It is further contended that proposed defendant no. 3 and 4
has paid rent of temporary alternate accommodation of shop no. 51 and
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CS 2170-19 in S.C. Suit no. 2136-15 3 Date : 18.09.2019
54 to the defendants since demise of her father. Therefore, the
aforesaid amount needs to be deposited in the Court and shall be
divided between the plaintiff and defendants.
8. It is further contended that she is seeking orders against the
proposed defendant no. 3 and 4 to deposit future rent of temporary
alternate accommodation till handing over of the possession of the suit
premises to the plaintiff and defendants. She has already issued notice
to proposed defendant no. 3 and 4 but, they have not responded to her
request.
9. It is further contended that the plaintiff recently came to
know that the defendant no.1 and 2 conducting their business
alternatively from Shop no.3, Kalapani, Mumbai and was paying Rs.
15,000/ p.m. since 2015 to her mother as License Fee till she was alive.
Therefore, the defendant no.1 and 2 are required to deposit the
aforesaid amount of Rs.15,000/ p.m. It is further contended that at
present the aforesaid shop no.3 might be fetching rent of Rs.40,000/
p.m. and accordingly, they are need to be directed to deposit the
aforesaid amount in the Court.
10. It is further submitted that the proposed defendant no. 3
and 4 required to be directed to render true accounts of rent paid
towards the temporary alternate accommodation to the defendant no. 1
and 2 in respect of Shop No. 51 and 54. It is contended by the plaintiff
that she has filed suit for partition but, prayers in the plaint are not
properly drafted. Thus, same needs to be amended for proper
adjudication. She has submitted that she was relying on her earlier
advocate who has not performed his duties but due to mistake of
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advocate, she should not be put to loss. Therefore, she prayed for
allowing her to amend the plaint accordingly.
11. The Chamber Summons is opposed by the proposed
defendant no. 4 by filing reply on the ground that there is a delay in
preferring the Chamber Summons which is not explained by the
plaintiff. The dispute between the parties is within family intersay.
The proposed defendant no. 4 has nothing to do with the their dispute.
12. It is further contended that this Court vide, its order dated
28.11.2016 passed in Notice of Motion No. 4581 of 2015 rejected the
prayer of the plaintiff for injunction with respect to Shop No. 51 and 54
on the ground that partition was already affected between the parties.
Therefore, it is submitted that the proposed amendment can not be
allowed. Hence, defendant no. 4 prayed for rejection of the chamber
summons.
13. Defendant no.1 also opposed the Chamber Summons on
the ground that issues are framed and trial is commenced. The plaintiff
is not entitled for amendment of plaint after commencement of trial.
The plaintiff by way of present amendment changing the nature of suit.
There is enormous delay in filing present Chamber Summons. It is
further contended that the plaintiff by her own admission says that she
was aware about the name of builder developing the suit property,
inspite of that she has not mentioned the same in the plaint. Therefore,
defendant no. 1 prayed for rejection of the Chamber Summons.
14. I have heard both the sides at length. The plaintiff filed
instant suit seeking partition of several properties mentioned in the
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schedule annexed with the plaint. It is her specific contention that
during pendency of the trial her mother expired on 17.09.2017.
Therefore, she is entitle for the share in the estate of her mother. It is
further contended that at the time of filing of the suit, she was not
aware that Room No. 7 and 12 situated at Govandi are also belonging
to her father. Therefore, these properties are also required to be
included in her claim.
15. It is further case of plaintiff that Shop No. 51, 54 and Room
No. 20 are tenanted premises which is undergone for redevelopment
by proposed defendant no. 3 and 4. She is entitle for compensation of
alternate accommodation. Therefore, they are proper party for
adjudication of her claim.
16. It is further contended that the aforesaid properties were
developed by Kathawala Realtors LLP but on the say of her mother she
has included the name of builder as Sabir Nirman. Therefore, the
aforesaid facts needs to be amended. She has further claimed share in
rental income pertaining to shop no. 3. Therefore, she prayed for
granting permission to carry out necessary amendment as well as to add
proposed defendant no. 3 and 4 as a party defendants in the suit.
17. It is well settled law that under Order 6 Rule 17, Court
discretion to grant amendment of pleadings lies on two conditions.
Firstly, no injustice be done on the other side and secondly the
amendment must be necessary to determine the real question in
controversy. As per Order 6 Rule 17 of CPC which was to be introduced
by way of an amendment provides that after commencement of trial, no
amendment shall be allowed except the court conclude that, inspite of
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due diligence, party could not have raised the matter before
commencement of trial.
18. The Hon'ble Apex Court in case of Vidhyabai & others V/s.
Padmalatha and Ors. ((2009) 2 SCC 409) has held that, filing of an
affidavit in lieu of examination in chief of the witness would amount to
commencement of trial.
19. In the present case, admittedly the plaintiff not yet
tendered affidavit of Examinationinchief. Thus, I am of the view that,
trial is not yet commenced. Hence, objection of the defendant that the
plaintiff failed to show that inspite of due diligence, she could not
amend the plaint prior to commencement of trial has no substance.
20. I have perused the plaint. The plaintiff has filed instant
suit for partition and declaration of her share in the suit property. The
plaintiff by way of proposed amendment seeking to add pleadings with
respect to enhancement of her share due to demise of her mother. I am
of the view that, the proposed amendment with respect to enhancement
in the share is a subsequent event, which needs to be allowed to the
plaintiff so as to determine the real controversy between the parties.
21. The plaintiff by way of proposed amendment wanted to
add Room no.7 and Room No.12 situated at Govandi, the suit property.
As per her contention, she was not aware that those shops were
belonging to her father. I am of the view that, entire property of the
deceased needs to be added in a suit for partition. Therefore, the
proposed amendment with respect to the aforesaid shops can be
allowed.
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22. It is the contention of the plaintiff that, the shop no. 51,54,
and Room No. 20 are tenanted premises and landlord and builder are
not party to the suit. It is her contention that, the aforesaid shops are
being redeveloped by a builder namely Kathawala Realtors LLP.
Therefore, the plaintiff is entitled for permanent alternative
accommodation and also for temporary alternative accommodation.
Therefore, she prayed for allowing her to add the proposed defendant
nos. 3 and 4 as necessary parties to the suit.
23. As per Order 1 Rule 10(2) of CPC, the Court may at any
stage of the proceedings, either upon or without application of either
party, and on such terms as may appear to be just, order that the name of
any party be struck out or added in order to enable the court effectually
and completely adjudicate upon and settle all the questions involved in the
suit.
24. It is well settled law that, necessary parties are those
parties who ought to have joined in a suit i.e. party necessary to the
constitution of the suit, without whom no decree can be passed at all.
Proper parties are those parties whose presence enable the court to
adjudicate to the matter more effectually and completely. As to when it
can be said that defendant is necessary party will depend on the facts of
a particular case. In general, it can be said that the person is necessary
party if the suit cannot be effectively disposed of without his presence.
Thus, under Order 1 Rule 10(2) of CPC, the Court may order that the
person be added to a suit (whether as a plaintiff or a defendant) in
following two cases;
(a) when he ought to to have joined (as plaintiff or defendant)
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and is not so joined (i.e. when he is a necessary party);
and
(b) when, his presence before the Court would enable the Court
to effectually and completely adjudicate upon and settle all
the questions involved in the suit (i.e. when he is a proper
party)
25. Thus, for an effectual and complete adjudication of
questions arising in the suit, a third party would be added by the Court
if he is a proper party, although he may not be a necessary party, to
such a suit. It is well settled law that, the court can add the parties only
in above two cases. The court has no jurisdiction to add a party in any
other case. Moreover, parties cannot be added so as to introduce a
totally new cause of action.
26. As per contention of the plaintiff the proposed defendant
nos.3 and 4 are proper parties. The plaintiff wanted to claim
compensation with respect to tenanted premises which is going to be
paid to the defendants. The plaintiff also quantified her claim.
Admittedly, the present suit is for partition and separate possession.
Defendant nos. 3 and 4 are third parties to the dispute between the
parties. Therefore, I am of the view that, the proposed defendant nos.3
and 4 are neither proper nor necessary parties. Therefore, the prayer of
the plaintiff for addition of proposed defendant nos. 3 and 4 cannot be
allowed.
27. The plaintiff further claiming share in the monthly income
derived from shop no.3, as the suit is for partition and separate
possession and the plaintiff has quantified her share. I am of the view
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that, the proposed amendments do not change the nature of the suit
and no prejudice will be caused to the defendants, if so allowed. Thus,
I am of the view that, the plaintiff can be allowed to amend her plaint
as per Schedule, more particularly paras 1(a);2(a); 5(a); 6(b) except
pleadings with respect to defendant no.4 as necessary party; para 8(a)
only to the extent of directing defendant nos.1 and 2 to deposit entire
rent received from defendant nos. 3 and 4 from the date of demise of
her father in the court and to divide the same between the parties as per
law; 11(a), 11(b), 11(c), 11(d) and prayer clauses (aa),(bb),(cc) and
(ccc). Thus, I proceed to pass following order :
ORDER
1. Chamber summons No. 2170/2019 is allowed in terms of
prayer clause (i).
2. The plaintiff is allowed to carry out necessary amendments
as per Schedule, more particularly paras 1(a);2(a); 5(a);
6(b) except pleadings with respect to defendant nos.3 and
4 as necessary party; para 8(a) only to the extent of
directing defendant nos.1 and 2 to deposit entire rent
received from defendant nos. 3 and 4 from the date of
demise of her father in the court and to divide the same
between the parties as per law; 11(a), 11(b), 11(c), 11(d)
and prayer clauses (aa), (bb), (cc) and (ccc), within a
period of 14 days from the date of the order.
3. The plaintiff to file amended plaint and also to supply the
copy to other side.
4. Upon necessary amendment the plaintiff is required to pay
further court fees on enhanced claim. The plaintiff is
directed to pay the same within a period of one month after
necessary amendment is carried out.
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5. After necessary amendment is carried out, the matter be
sent to the concerned Registrar for assessing the court fees
on enhanced claim.
6. Parties to bear their own costs.
7. Chamber summons is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated :18.9.2021 Greater Bombay.
Dictated on : 18.9.2021 and 22.10.2021
Typed on : 18.9.2021 and 22.10.2021
Draft Submitted on : 22.10.2021
Signed on : 25.10.2021
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CS 2170-19 in S.C. Suit no. 2136-15 11 Date : 18.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
26.10.2021, at 12.25 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 18/9/2021
JUDGMENT/ORDER signed by P.O. on 25/10/2021
JUDGMENT/ORDER uploaded on 26/10/2021
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