1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons NO.740 of 2006 IN SUIT NO.3906 of 1998. Umesh Gajanan Pathak .. Plaintiff -versus Smt.Sumati Pandurang Pathak & ors .. Defendants. Mr.Jaideep Mitra i/b M/s Apte & Co. for the plaintiff. Mr. Gautam T Mehta, i/b Mr A.H. Khatri for defendant Nos l7 & l7. Mr. J. Sidhwa, for defendant N.8, l0-Am l0-C & l4. Mr. Prakash Shah for defendant No.l8 in support of defendants. Mr R. J. Mane, AGP for defendant Nos l9 and 20. CORAM: R. G. KETKAR, J. DATED: 27th August, 2009. P.C. 1. Heard learned counsel for the parties. This Chamber Summons is taken out by the defendant No.l8 for amendment of the written Statement filed by her on 2 11th December, 1990. 2. The Plaintiffs have instituted the above suit on 19th December, l988 claiming that under the deed of Partition dated 13th October, 1971, and in particular clause (vi) thereof, he has right of pre-emption to purchase the share of any of the parties who wish to dispose of his part. It is the case of the plaintiff and supporting defendant Nos l5 & l7 that the other co- owners executed deed of assignment dated 16th August, l988 which was registered on 3lst August, l988 and the same is not binding on them because it is in violation of Clause (vi) of the partition deed dated l3th October, l907l. It is, there case that the said deed of partition is a registered instrument. 3. The defendant No.l8 filed written statement on 11th December, l990 and the present Chamber Summons is taken out on 19th June, 2006. She wants to introduce plea of estoppel as per paragraph 1(A), plea of waiver as per paragraph l(B) of schedule annexed to the Chamber Summons. Mr Shah, learned counsel for the defendant 3 No.l8 submits that no prejudice will be caused to the plaintiff and defendant Nos l5 and l7 if the chamber summons is allowed. He also submits that the proposed amendment is absolutely necessary for the purpose of determining the controversy between the parties. He, therefore, submitted that the Chamber Summons may be made absolute. 4. On the other hand, learned counsel for the plaintiff and defendant Nos l5 & l7 submitted that there are no new facts pleaded in the affidavit in support of Chamber Summons. No subsequent developments are brought on record and lastly there is abnormal delay in taking out the present Chamber Summons. They also submitted that the deed of partition dated l7th October, 1971 is a registered instrument. Defendant No.l8 has constructive notice of the said instrument. Written statement was filed by the defendant on 11th December, 1990, the plea of estoppel and plea of waiver is not available to the defendant No.l8 particularly when the plaintiff is asserting right of pre-emption right from 1988. 4 In this behalf he has submitted that the plaintiff has addressed two letters both dated 28th August, 1988, which are at Exh.C & D to the plaint, protesting against the deed of assignment. He also instituted the suit on l9th December, l988 challenging the deed of assignment dated l6.8.1988. It, therefore, can not be said that the plaintiff has waived his right of pre-emption and/or plea of estoppel will operate against him. At any rate it was submitted that all these facts were within the knowledge and available to the defendant No.l8 when she filed written statement on 11th December, 1990. The issues are already framed on 27th September, 2007. In view of this, learned counsel for the plaintiff and defendant Nos l5 and l7, prayed for dismissal of the Chamber Summons. 5. After hearing learned counsel for the parties what emerges is that in the first place, no new facts are pleaded in the affidavit in support of Chamber Summons. Secondly, no subsequent developments are pleaded by defendant No.l8 in the affidavit in support of Chamber Summons. Chamber Summons is also filed in 2006 which 5 suffers from gross delay and latches. The facts in the proposed amendment were already in existence before filing written statement on 11th December, 1990. In view of this, in my opinion no case is made out for allowing Chamber Summons. Hence following order. ORDER. Chamber Summons stands dismissed with no order as to costs. (R.G. KETKAR, J)