Final Order 1

Order Details: Order
Pdf Text: Ch/s No.272/2021 1 S.C. Suit No.2175/2018
MHCC040017032021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
BORIVALI DIVISION, DINDOSHI (BRANCH)
CHAMBER SUMMONS NO.272 OF 2021
(CNR NO.MHCC040017032021 )
IN
S.C. SUIT NO.2175 OF 2018
(CNR NO.MHCC040060052018)
Vivek Phadke ..Applicant
In the matter of
Aditi Vivek Phadke ...Plaintiff
V/s.
M/s. Rajputana Heights & Ors ...Defendants
Adv. R. G. Chaudhari for plaintiff.
Adv. P.Bari for defendant.
CORAM: Her Honour The 1st Addl.Pr.Judge
Smt.S.S.Sawant
(C.R.No.1)
DATE : 16th March, 2021.
:ORAL ORDER :
1. Heard Ld.Advocate for applicant.
2. Learned Advocate for applicant has taken out this Chamber
Summons for permission to carry out amendment to S.C. Suit
No.2175/2018 as per schedule annexed with the chamber summons.
-- 1 of 5 --
Ch/s No.272/2021 2 S.C. Suit No.2175/2018
3. It is the case of applicant that present suit has been
instituted for the purposes of declaration of rights, title and interests
jointly and severally of the plaintiff alongwith other reliefs incidental
and ancillary thereto, with respect to suit flat being Flat No.203,
admeasuring 453 sq.ft. appro. of carpet area, situated on 2nd floor, A
Wing, Shivoham Heights situated on Plot No.117 corresponding to
C.T.S. No.684, Village Pahadi, Taluka Borivali, Mumbai Suburban
District, Mumbai at Jawahar Nagar, Road No.8, Goregaon(West),
Mumbai. The building which has the suit flat is constructed by
Defendant No.1 firm, in which Defendant Nos.2 to 4 are partners, in
pursuance of Redevelopment Project that is executed by the defendants.
The plaintiff is claiming her rights, title and interest over the suit flat by
way of a testamentary document being the Last Will and Testament of
one Smt. Shanta Hasmukh Shah(deceased), who has expired on
17.4.2016, which was executed by the said deceased on 24.3.2015. By
way of the said Last Will and Testament the said deceased who is
entitled to the suit flat by way of an Agreement for Permanent Alternate
Accommodation dated 16.9.2014 has bequeathed all of her rights, title
and interests over the suit flat to the plaintiff. The present applicant,
who is father of the plaintiff was appointed and named as the Executor
to the said Last Will and Testament, and in that capacity has proceeded
to take steps to obtain probate of the said Last Will and Testament
before the Hon'ble Bombay High Court. It is further submitted that with
the obtainment of the said probate with respect to said Last Will and
Testament, the applicant in the capacity of the Executor of said Last
Will and Testament required to secure the legacies of the said deceased
and in subsequence hand over the said legacies i.e. the suit flat to the
legatee i.e. plaintiff.
-- 2 of 5 --
Ch/s No.272/2021 3 S.C. Suit No.2175/2018
4. It is further submitted by the applicant that present plaintiff
is his daughter and he is constituted attorney of the plaintiff in the
present proceeding as the plaintiff being engaged in her professional
duties overseas, has found it prudent and necessary. According to
applicant, there being a likelihood of the resolution of the present
dispute with the defendants, after obtainment of the said Probate, he is
required to be joined as a party to the present proceeding as plaintiff
No.2. In the light of making of the said Last Will and Testament and
the probate thereon, it is just and necessary that he be made a party to
the present proceeding being appointed as the Executor of the said Last
Will and Testament by the deceased and having in that capacity
successfully obtained the probate thereto. According to applicant, if he
is added as party to the present proceeding as Plaintiff No.2 no
prejudice will be caused to the defendants. However, grave prejudice
will be caused and serious injury will be inflicted upon the plaintiff if
said amendment is not allowed. It is just and necessary that the present
amendment is allowed to enable himself to step into the shoes of the
plaintiff and secure the suit flat on merits of the case and/or by consent
of between the parties. Hence, he has prayed that the amendment as
prayed for the plaintiff of the suit be allowed as shown in schedule
annexed to the present Chamber summons.
5. Defendants by filing their reply on the Chamber summons
itself submitted that, appropriate orders be passed subject to cost.
6. Heard Ld.Advocate for applicant and defendants. Also
perused the documents.
7. On perusal of the record and proceedings and after hearing
-- 3 of 5 --
Ch/s No.272/2021 4 S.C. Suit No.2175/2018
the arguments of Ld.Advocate for applicant and defendants, in my
opinion, the Chamber summons is taken out within time and therefore,
in the interest of justice, it is just and proper to allow the Chamber
Summons. Nature of plaint will not be changed. Proposed amendment
is necessary to decide the dispute between the parties and to avoid
multiplicity of proceedings. No harm will be caused to the defendants if
Chamber summons is allowed. Hence, I proceed to pass the following
order.
ORDER
1) Chamber Summons No.272 of 2021 in terms of prayer clause (a)
is allowed, subject to cost of Rs.2,000/ payable to defendants
within 10 days.
2) Applicant/Power Attorney of the plaintiff is directed to carry out
amendment in the plaint as per the schedule and to add the
applicant as Plaintiff No.2 within 14 days.
3) Plaintiff is directed to serve the amended copy of the plaint to all
the defendants and shall file it on record.
4) Chamber Summons No.272 of 2021 stands disposed off
accordingly.
( Smt.S.S.Sawant )
16/03/2021 1st Addl.Principal Judge
City Civil & Sessions Court
Dindoshi, Mumbai.
Date of dictation : 16/03/2021
Date of transcription by steno:16/03/2021
Checked & signed by HHJ on :16/03/2021
-- 4 of 5 --
Ch/s No.272/2021 5 S.C. Suit No.2175/2018
Name of the Judge (With Court
Room No.)
H.H.1st A.P.J.Smt.S.S.Sawant
Court Room No.1
Date of pronouncement of
Judgment/Order
16/03/2021
Judgment/Order signed by P.O. on 16/03/2021
Judgment/Order uploaded on 19/03/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
MRS.S.A.KAPARE
19/03/2021 (H.G.STENOGRAPHER)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
-- 5 of 5 --