Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 2326/2019 1 Order.
in Suit No. 3599/2008
MHCC010135132019
Presented on : 24-12-2019
Registered on : 24-12-2019
Decided on : 29-07-2024
Duration : 4 Y, 7 M, 5 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 2326 OF 2019
IN
SUIT NO. 3599 OF 2008
Mr. Suresh Raghunathdas Saigal )...Plaintiff
Versus
Mr. Ramesh Raghunathdas Saigal and others )...Defendants
And
Mr. Shripal N. Rege )...Respondent
(Proposed Defendant)
Harsha Shah, Advocate for the plaintiff.
Yogita Kanojia h/f Manoj Pandey, Advocate for the defendant No.2 to 4.
Pratiksha Koshe i/b Arshil Shah, Advocate for the proposed defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 29th JULY, 2024.
ORDER
This chamber summons is taken out by the plaintiff to
implead proposed party as defendant No.6 and amend the plaint as set
out in the schedule.
2. The plaintiff has come with the case that when defendants
filed their Written Statement he came to know that defendant No.1 vide
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Ch/s No. 2326/2019 2 Order.
in Suit No. 3599/2008
agreement dated 03.03.2004 has sold out suit flat No.14 to the
proposed defendant. Thereafter, his advocate addressed letter to
defendant’s advocate and sought information. Then he revealed that
defendant No.1 i.e. Mr. Ramesh Raghunathdas Saigal sold suit flat No.
14 to Mr. Nandkumar Tatoba Rege and Smt. Rama Nandkumar Rege.
After death of Nandkumar Rege the flat No.14 was transmitted infavour
of his wife on 29.04.2012 and after death of Rama N. Rege the flat
No.14 is transmitted in the name of proposed defendant. Therefore,
proposed defendant is necessary party to the suit.
3. The plaintiff vide this chamber summons also seek
permission to amend the plaint and insert proposed para 9a to 9m as
set out in the schedule. Hence, this chamber summons.
4 This chamber summons is challenged by proposed
defendant on the ground that the chamber summons is filed at belated
stage. The plaintiff was aware as to fact of transfer of the suit flat in
favour of the proposed defendants. Therefore, the plaintiff has no right
and interest over the suit flat No.14. Hence, prayed to reject the
chamber summons.
5. Similarly, defendant Nos. 2 to 4 also challenge the chamber
summons on the same ground. It is their contention that they have filed
Written Statement in the year 2010. The chamber summons is filed by
the plaintiff to delay the proceeding. The plaintiff had not sought
possession of the suit property and therefore, suit was not maintainable
for mere declaration. Therefore, now the plaintiff wants to add the
prayer for the possession which is barred by law of limitation. Hence,
prayed to reject the chamber summons.
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Ch/s No. 2326/2019 3 Order.
in Suit No. 3599/2008
6. Ld. advocate for the plaintiff and Ld. advocate for the
defendant Nos. 2 to 4 submitted that the contents of chamber summons
and reply filed by defendant Nos. 2 to 4 be considered as argument.
7. At the out set it is necessary to note that the plaintiff has
filed suit for declaration that he has 25% share in the suit flat No. 13
and 14. He has also sought relief of injunction. It is case of the plaintiff
that the suit property is an ancestral property of plaintiff and defendant
Nos. 1 to 5. The husband of defendant No.2 who was eldest brother of
plaintiff and defendant Nos. 1 to 5 was nominated to the record of the
suit flat by his father. Defendant Nos. 1 to 4 are in collusion with each
other and they tried to exclude the plaintiff and defendant No.5 from
suit property. Therefore, plaintiff taken out suit for aforesaid reasons.
8. Now plaintiff vide this chamber summons seeks permission
to amend the plant and add proposed defendant No.6 as party to the
suit as purchaser of suit flat No. 14. The plaintiff does not challenge the
contention of the defendant Nos. 2 to 4 that they have filed Written
Statement in the year 2010. Therefore, there is substance in submission
of defendant Nos. 2 to 4 and proposed defendants that the chamber
summons is filed at belated stage. In such case it has to see whether the
chamber summons is liable to be allowed.
9. The parties to the suit on record did not challenge the
relationships into themselves. The plaintiff himself states that he came
to know that suit flat No.14 is transferred in favour of proposed
defendant when defendant Nos. 2 to 4 filed Written Statement. The
plaintiff also want to bring on record the fact of issuance of letter by his
advocate addressed to defendant’s advocate whereby he requested them
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Ch/s No. 2326/2019 4 Order.
in Suit No. 3599/2008
to furnish details of the suit flat No.14. He also wants to plead that the
cooperative officer with whom the suit flat is registered informed the
plaintiff as to transfer of the suit flat by the letter dated 20.05.2016. It is
specific contention of defendants that the plaintiff has knowledge about
transfer of the suit flat No.14 in favour of proposed defendant in the
year 2004. Therefore, chamber summons is barred by law. However, the
fact as to transfer of the suit flat No.14 in favour of proposed defendant
in the year 2004 are not pleaded by the plaintiff when he filed the suit.
In such case unless this fact is brought on record it cannot be said that
the entire claim of the plaintiff is out of limitation as both parties
presently have not raised issue of limitation with regard to the flat
No.13. In such circumstances, if the plaintiff is permitted to add
proposed party as defendant No.6 no prejudice will cause to other side.
Defendants have liberty to file proper application to raise any ground to
challenge the plaint.
10. It is also necessary to note that the plaintiff vide schedule
wants to add the para 9a to 9m. The perusal of schedule containing
para 1 to 3, para 5 to 7, para 11 to 13 it seen that those contents would
be necessary to decide the real controversy between both parties.
However, contents of para 4 from line Nos. 3 to an end, para 8 to 10,
which are in the nature of argument or those facts are already stated in
the plaint cannot be allowed to be inserted in the plaint. Obviously,
plaintiff failed to seek possession of the property that he claimed. The
plaintiff claims 25 % share. In such case it is necessary for the plaintiff
to permit to insert the prayer for possession to avoid multiplicity of
litigation and to have executive decree, if passed.
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Ch/s No. 2326/2019 5 Order.
in Suit No. 3599/2008
11. Before pass the order it is necessary to note that the
plaintiff kept mum since 2010 to insert the pleading set out vide this
chamber summons. Suit is pending since last 16 years. Therefore, it is
just and proper to impose the cost of Rs. 10,000/- payable to defendant
Nos. 1 to 4 and proposed defendant in equal proportion. In the result
following order is passed :
- ORDER -
1. Chamber Summons No. 2326 of 2019 is allowed as under :
2. The plaintiff is permitted to add proposed party as defendant
No.6.
3. The plaintiff is permitted to insert Para Nos. 1 to 3, first two lines
of Para No.4, Para Nos. 5 to 7 and Para Nos 11 to 13 of schedule
of chamber summons in the plaint after Para No.9.
4. The plaintiff is permitted to insert prayer clause (aa) and (bb) as
set out in the schedule.
5. The plaintiff to pay cost of Rs. 10,000/- payable to the defendant
Nos. 1 to 4 and proposed defendant in equal proportionate within
one month from the date of this order.
6. Accordingly Chamber Summons No. 2326 of 2019 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 29/07/2024. Mumbai.
1. Dictated on : 29/07/2024.
2. Transcribed on : 30/07/2024.
4. Checked on : 30/07/2024.
6. Signed on : 30/07/2024.
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Ch/s No. 2326/2019 6 Order.
in Suit No. 3599/2008
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31/07/2024. 11.58 a.m. Mrs. Poonam Y. Pawar
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 29/07/2024.
Judgment/Order signed by P.O. on 31/07/2024.
Judgment/Order uploaded on 31/07/2024.
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Ch/s No. 2326/2019 7 Order.
in Suit No. 3599/2008
Operative order Chamber Summons No. 2326/2019
1. Chamber Summons No. 2326 of 2019 is allowed as under :
2. The plaintiff is permitted to add proposed party as defendant No.6.
3. The plaintiff is permitted to insert Para Nos. 1 to 3, first two lines of
Para No.4, Para Nos. 5 to 7 and Para Nos 11 to 13 of schedule in the
plaint after Para No.9.
4. The plaintiff is permitted to insert prayer clause (aa) and (bb) as set
out in the schedule.
5. The plaintiff to pay cost of Rs. 10,000/- payable to the defendant
Nos. 1 to 4 and proposed defendant in equal proportionate within one
month from the date of this order.
6. Accordingly Chamber Summons No. 2326 of 2019 is disposed off.
Notice of Motion No. 417/2020 Operative Order
1. Notice of Motion No. 417 of 2020 is disposed of and become
infructuous.
2. The proposed defendant to file Written Statement within 30 days of
service of amended plaint from date of this order and serve copy
amended plaint upon heirs prior to or before date of this order.
3. Heirs of the defendant to file Written Statement within 30 days of the
service of amended plaint if not served earlier.
4. The plaintiff to file affidavit of service of amended plaint on record.
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