Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.25/2018 in Suit No.7530/1981
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.25 OF 2018
(MH CCO10001332018)
IN
S.C.SUIT NO. 7530 OF 1981
(MH CCO147662012)
Mr. Hitesh Kewalkumar Jain ].. 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 defendant.
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 in the Suit No.7530/1981.
-- 1 of 7 --
2 C/H No.25/2018 in Suit No.7530/1981
2 The applicant has filed his affidavit in support of Chamber
summons, wherein he has stated that the present suit has been filed 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 Deed of
Conveyance dated 18.07.2013, which was subsequently registered on
26.07.2013, the applicant has acquired all the rights, title and interest
in land admeasuring 322.05 sq. meters bearing C.T.S. No.1505A
corresponding Survey No.84/1 situated at St. Anthony Road, Chembur,
VillageGhatla, Mumbai 400 071. Thus, applicant has become the
owner of the said property and is in lawful and peaceful possession of
the said properties.
3 In pursuance of the Consent Terms filed in the Special Civil
Suit No.1024/1981 on 22.03.1999 land bearing C.T.S. No.1505A
corresponding Survey No.84/1 admeasuring 3864.6 sq. meters was
divided/partitioned between the family members of Pandey. 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. Plot
No.D is kept common and plot No.C is the common passage retained for
benefit of all the parties, which have to be utilized as passage. Out of
total area of the land bearing CTS No.1505 of village Chembur the
portion of land admeasuring 322.05 sq.meters was owned by one
Bhagwati Prasad Ramdular Pandey, being defendant no.2 in Special
Civil Suit No.1024/1981.
-- 2 of 7 --
3 C/H No.25/2018 in Suit No.7530/1981
4 After death of Bhagwati Pandey, the names of the legal
heirs and representatives were mutated and entered into the property
register card. After the death of Bhagwati Pamndey, the names of the
respective legal heirs and representatives i.e. defendant nos.5(a)(i),
5(a)(ii), 5(a)(iii), 5(a)(iv), 5(b) and 5(c) were mutated to the record,
sold their rights, title and interest in the property vide registered sale
deed dated 03.02.2012 at the office of the SubRegistrar of Assurance
Kurla4 to Mr. Virendra Singh Badri Singh and Mr. Dilip Mishrilal
Jindal. Pursuant to the Deed of Conveyance dated 18.07.2013, which
was subsequently registered on 26.07.2013 at the office of the Sub
Registrar of Assurance Kurla4, the applicant acquired all the right, title
and interest of the said property from defendant nos.5(a)(i), 5(a)(ii),
5(a)(iii), 5(a)(iv), 5(b) and 5(c) to Mr. Virendra Singh Badri Singh and
Mr. Dilip Mishrilal Jindal. Thus, the applicant has become owner and in
the possession of land admeasuring 322.sq. Meters.
5 Vide Order dated 11.10.2017 passed in Notice of Motion
No.1431 of 2010, the Court has appointed Court Receiver with respect
to the property. 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 ownership of the
applicant to the Court Receiver. The present applicant has substantial
-- 3 of 7 --
4 C/H No.25/2018 in Suit No.7530/1981
interest in the said property. The plaintiffs are well aware of the status
of the applicant's ownership, title and possession with respect to the
said property. Despite of it, the plaintiffs have obtained order in Notice
of Motion No.1431 of 2010 without making applicant as a party. The
present applicant is the lawful owner and in peaceful possession of the
property, which is subject matter of dispute in the present suit. The
applicant is the necessary party in the present suit.
6 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.
7 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 th 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. The plaintiffs have also denied that the applicant has
become the absolute owner by virtue of the purported Deed of
Conveyance dated 18.07.2013. The concerned defendants themselves
had no rights and authority to execute any documents/conveyance in
favour of any rank third party, in view of injunction order dated
-- 4 of 7 --
5 C/H No.25/2018 in Suit No.7530/1981
15.10.1993 was in force. The concerned defendants were always
represented through their advocate in the suit
8 It is further contended that the plaintiffs have taken out
Contempt Petition No.82 of 2003 against the representative of the
applicant. The applicant is not a necessary party much less a proper
party for deciding the lis between the parties. The present Chamber
summons has been taken out solely for the purpose of creating a
hindrance in the smooth functioning of the Court Receiver to take steps
in pursuance of the order dated 11.10.2017. No harm and prejudice
would be cause to the applicant, if this Chamber Summons is dismissed.
The applicant has come before the Court with clean hands only with
intention of delay the suit. Hence, prayed for dismissal of Chamber
Summons.
9 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 Deeds of
Conveyance the applicant has become the owner of the respective area,
which is the suit subject. Further, accordingly, the applicant is in th
possession of the part 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 possession of the part portion of the suit
property, the present 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 absolute in the interest of justice.
With this, I proceed to pass the following order:.
-- 5 of 7 --
6 C/H No.25/2018 in Suit No.7530/1981
ORDER
Chamber Summons No. 25 of 2018 is hereby made
absolute with directions to the plaintiffs to add present applicant in the
suit as defendant no.19 and accordingly, to carry out amendment in
the suit plaint on or before next date.
2 Further, the plaintiffs are directed to place on record
amended copy of the suit plaint and further directed to the plaintiffs to
supply amended copies of the suit plaint to the defendants.
3 Added defendant no.19 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.19.
4 Chamber Summons No. 25 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 : 12/11/2018
Signed on : 13/11/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/11/2018 At 5.00 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
-- 6 of 7 --
7 C/H No.25/2018 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 13/11/2018
Judgment/Order uploaded on 13/11/2018
-- 7 of 7 --