Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No. 50-2019 in SU-6380-2003
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.50 OF 2019
(CNR No.MHCC01-000117-2019)
IN
SUIT NO.6380 OF 2003.
(CNR No.MHCC01-006786-2002)
Tirathraj Murlidhar Mishra }...PLAINTIFF.
Versus
Geetika G. Sawant and Anr. }...DEFENDANTS.
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Shri.Kharat, learned advocate for the plaintiff.
Shri.Gupta, learned advocate for the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.No.62)
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O R A L O R D E R
(Delivered on 07/10/2021)
1. By filing this Notice of Motion, defendant has claimed
reliefs as under.
a. That this Hon’ble Court be pleased to dismiss the suit
for non joinder of party as per Rule 9 Order 1 of Code of
Civil Procedure, 1908.
b. In alternative to prayer clause (a) above, that this
Hon’ble Court be pleased to direct the plaintiff to make
Shri Augusteen M. John as a party defendant.
2. Read the affidavit filed by the defendant in support of
Notice of Motion and affidavit in reply filed by the plaintiff. Heard
learned Shri.Gupta advocate for the defendant and learned Shri.Kharat
advocate for the plaintiff. Perused the entire record.
3. Learned advocate for the defendant argued that plaintiff is
claiming to have purchased the suit premises from Augusteen M. John
but said Augusteen is not joined as party defendant to the suit due to
which, suit is liable to be dismissed for non joinder of necessary party.
He submitted that in the alternative, plaintiff may be directed to join
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said Augusteen as party defendant to the suit because, according to
him, defendant is also claiming rights in the suit premises through said
Augusteen due to which, said Augusteen is necessary and proper party
to the suit and hence, Notice of Motion may be made absolute for either
of the two reliefs claimed by the defendant.
4. As against this, learned advocate for the plaintiff argued
that defendant has deliberately taken out this Notice of Motion after 15
years and that too, after the evidence of plaintiff is recorded in the suit.
He argued that Augusteen M. John is neither necessary nor proper party
to the suit and hence, Notice of Motion is liable to be dismissed.
5. Averments in plaint show that plaintiff is claiming to have
acquired ownership and possession in respect of the suit premises for
consideration from Augusteen M. John. Contention of the plaintiff is
that defendant has taken possession of the suit premises forcibly by
breaking open the lock. Defendant has contended in his written
statement that he acquired title and possession in respect of the suit
premises from same person Augusteen M. John. Apparently, plaintiff
and defendant both are claiming to have acquired rights, title and
interest in the suit premises from Augusteen M. John. Both parties have
produced documents in support of their respective contentions that said
Augusteen M. John has executed documents in their favour in respect of
the suit premises.
6. In the affidavit filed in support of Notice of Motion, it is not
the contention of the defendant that said Augusteen M. John is now
claiming any interest in the suit premises. As mentioned above, plaintiff
and defendant both are claiming rights and interests in the suit
premises on the basis of documents allegedly executed in their favour
by said Augusteen M. John. The controversy involved in that regard
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between the plaintiff and defendant can be decided finally and properly
without joining said Augusteen M. John as party to the suit. In other
words, it does not appear that presence of said Augustin M. John is
essential before the court to completely and finally adjudicate upon the
controversy involved in the matter between the plaintiff and defendant
and hence, holding that defendant is not entitled for either of the reliefs
claimed in the Notice of Motion, I pass the following order.
O R D E R
Notice of Motion No.50 of 2019 is dismissed.
Date : 07/10/2021. (P.P.RAJVAIDYA)
Dictated on : 07/10/2021. Judge, C.R.No.62,
Checked on : 07/10/2021. City Civil Court,
Signed on : 07/10/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
11.10.2021 at 1.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 07.10.2021
Order signed by P.O. on 07.10.2021
Order uploaded on 11.10.2021
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