Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.24/2018 in Suit No.7530/1981
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.24 OF 2018
(MH CCO10001302018)
IN
S.C.SUIT NO. 7530 OF 1981
(MH CCO147662012)
Marigold Properties ].. Applicant/Intervener
IN THE MATTER BETWEEN
1(b) Oomen Michael and others ]..Plaintiffs
V/s.
1 Shri Gayatriprasad Ramnaresh ]
Pandey and 17 others. ]..Defendants.
Advocate Mr. Dalal for the applicant.
Advocate Mr. Sohani for the plaintiffs.
None for defendants.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 31st OCTOBER 2018
ORAL ORDER
This Chamber summons has been taken out by the
applicant/intervener for adding as defendant no.18 in Suit
No.7530/1981.
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2 C/H No.24/2018 in Suit No.7530/1981
2 The applicant has filed affidavit of its partner Mr. Manish
Vimalkumar Jain. It is averred that the plaintiff has filed suit for
seeking specific performance of the Agreement dated 24.02.1971
purportedly executed between V.O. Michael and one Ramnaresh
Laxman Pandey, along with other reliefs.
3 It is the case of the applicant that pursuant to the three
Deed of Conveyances dated 18.03.2010 and two Deed of conveyances
dated 30.12.2010 along with Deed of Confirmation dated
28.09.2011the applicant has acquired all the rights, title and interest in
land bearing C.T.S. No.1505 corresponding Survey No.84/1 situated at
St. Anthony Road, Chembur, VillageGhatla, Mumbai 400 071. Thus,
the applicant has become the owner of the said property and is in
lawful and peaceful possession of the said properties.
3 Mr. Ramnaresh Laxman Pandey, who was in exclusive
possession and occupation of land bearing CTS No.1505 admeasuring
3864.6 sq. meters, died intestate leaving behind legal representative as
listed in Deed of Conveyance dated 18.11.2008. Mr. Shardaprasad
Jagmohan Pandey, Gayatri Prasad Ram Naresh Pandey and Mangla
Prasad Pandey filed a suit for partition bearing Civil Suit No.
1024/1981 against the other heirs and legal representatives. The
Consent Terms dated 30.03.1999 was filed in the Special Civil Suit
No.1024/1981 thereby effecting the family partition in respect of the
entire property. Further, separate consent terms were filed in Special
Civil Suit No.2633/1981 by the other legal heirs namely Sugna Devi R.
Shukla, Garjarji Devi Chotelal Pandey and Karmaraji Devi Ramnivas
wherein the aforementioned heirs have relinquished all their rights, title
and interest in respect of the entire property.
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3 C/H No.24/2018 in Suit No.7530/1981
4 In accordance to the said Consent Terms the entire
property was divided into six parts and were accordingly numbered
from Plot No.A to F. Pursuant to the Consent Terms, the applicant have
acquired rights, title and interest in the properties vide above Deed of
Conveyances.
5 Since one of the partners of the applicant expired on
07.06.2006, Deed of Reconstitution of Partnership dated 27.06.2011
was entered into between the partners of the applicant. In view of the
Deed of Reconstitution of Partnership dated 27.06.2011, Deed of
Confirmation dated 28.09.2011 was entered into between M/s. Saroj
Contractor and Engineer and the applicant, whereby the parties decided
to register the Deed of Conveyance dated 30.12.2010.
6 On or about second week of December 2017, it has come to
knowledge from Mr. Piyush Mahajan, that vide Order dated 11.10.2017
passed in Notice of Motion No.1431 of 2010, the Court was pleased to
appoint the Court Receiver with respect to the property nos.1 to 5
owned by the applicant. The Court has further ordered and called upon
the Court Receiver to prepare and submit report with respect to the
present status of the said property, so as to see as who can be appointed
as the agent of the Court Receiver and what would be the rents to be
determined in respect of the said property. Accordingly, in compliance
of the order dated 11.10.2017, the Court Commissioner has inspected
the said property on 15.12.2017 and accordingly has prepared the
report with respect to the present status of the said property. At the
time of inspection, it was requested to representative Mr. Piyush
Mahajan and their advocates to show the proof of their ownership. The
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4 C/H No.24/2018 in Suit No.7530/1981
representatives of the applicant had provided the Court Receiver, with a
copy of the property register card, showing their ownership and
possession of the said properties. Order dated 11.10.2017 passed by the
Court behind the back of the applicant against the principle of natural
justice, without making the applicant as just, proper and necessary
party to the suit. Therefore, in the above circumstances, as the present
applicant is the lawful owner and in peaceful possession of the subject
matter of dispute in the present suit, the applicant is the necessary party
in the present suit.
7 It is further averred that if present Chamber Summons is
not granted, the applicant would suffer irreparable loss and hardship,
which cannot be compensated in terms of money. On the contrary,
there would not be any loss or hardship to the present plaintiffs or the
defendants, if the relief as prayed granted in the present Chamber
Summons. Thus, prayed for allowing Chamber Summons.
8 Plaintiff no.1b has filed affidavit in reply to Chamber
Summons and resisted the Chamber Summons. It is contended that
after filing of the present suit on 16.02.1981, the Notice of Lis Pendns
was registered with the SubRegistrar of Assurances notifying the
general public about the pendency of the present suit. The applicant
has taken out Chamber Summons solely for the purpose of delaying the
trial of the above suit. The applicant herein was always aware of the
filing of the suit and passing of order of injunction dated 15.10.1993.
The plaintiffs have denied that the applicant is the owner of any portion
of the suit premises, as their purported Predecessorintitle i.e. the
concerned defendants, themselves had no rights and authority to
execute any documents/conveyance in favour of any rank third party, in
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5 C/H No.24/2018 in Suit No.7530/1981
view of injunction order dated 15.10.1993. The concerned defendants
were always represented through their advocate in the suit
9 It is further contended that the plaintiffs have filed
Contempt Petition No.82 of 2003 interalia against Adhya Prasad
Ramdular Pandey. Further, he has stated that he had filed one more
Contempt Petition No.118/2010 against the present applicants and
others.
10 It is further contended that the applicant is not necessary
party. No harm and prejudice would be caused to the applicant, if this
Chamber Summons is dismissed. The applicant has not come before the
Court with clean hands and filed Chamber Summons only with
intention of delay the suit. Hence, prayed for dismissal of Chamber
Summons.
11 Heard the learned advocate for the applicant and the
learned advocate for the plaintiffs at length. The applicant has filed on
record their Deed of Conveyance as stated in affidavit in support of
Chamber Summons. It appears that by way of the said Deed of
Conveyance, the applicant has become the owner of the respective area,
which is the suit subject. Further, accordingly, the applicant is in the
possession of the part of the said portion of the suit subject.
Considering the nature of the suit i.e. specific performance of an
agreement dated 24.02.1971 and at present the applicant is in the
possession of the part portion of the suit property, the applicant is
necessary and proper party in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions involved in
the present suit. Therefore, this Chamber Summons is to be made
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6 C/H No.24/2018 in Suit No.7530/1981
absolute in the interest of justice. With this, I proceed to pass the
following order:.
ORDER
Chamber Summons No. 24 of 2018 is hereby made
absolute in terms of prayer clause (a).
2 The plaintiffs are hereby directed to carry out amendment
in the suit plaint in view of AnnexureA to the Chamber Summons and
further directed to place on record amended copy of the suit plaint.
3 It is also directed to the plaintiffs to supply amended copies
of the suit plaint to the defendants on or before next date.
4 Added defendant no.18 is hereby directed to appear in the
suit on the next date without fail and further directed to file on record
written statement. Failure to make compliance, further order will be
passed against newly added defendant no.18.
5 Chamber Summons No. 24 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 31/10/2018. City Civil Court,
Gr. Bombay.
Dictated on : 31/10/2018
Transcribed on : 02/11/2018
Signed on : 03/11/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03/11/2018 At 5.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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7 C/H No.24/2018 in Suit No.7530/1981
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
31/10/2018
Judgment/Order signed by P.O. on 03/11/2018
Judgment/Order uploaded on 03/11/2018
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