Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CS 56-18 Suit 8350-1995
CNR No.MHCC010002662018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMOS NO.56 OF 2018
IN
S.C. SUIT NO.8350 OF 1995
(H.C. SUIT NO.915 OF 1995)
1. Amarnath Chitharu Yadav ]
2. Khalilur Rehman Habibullah, ] ... Plaintiffs
Versus
1. M/s. Satish Kolwankar & Associates ]
2. Saroj Minochar D. Minochar Homji ]
3. Asha Laxman Kurade, ]
4. Surekha Poojari Dhotre, ]
5. Sushma Poojari Dhotre, ]
6. Purnima Poojari Dhotre, ]
7. Geeta Poojari Dhotre, ]
8. Reena Poojari Dhotre, ]
9. Kiran Poojari Dhotre, ]
10. Amol Poojari Dhotre, ]
11. The Municipal Corporation of ]
Greater Bombay, ]
12. The Ward Officer, K/West, Ward ]
Andheri, Mumbai. ]
13. The Building Department (BMC), ]
14. The Dy. Municipal Commissioner, ]
Mahapalika Marg, CST, Mumbai. ]
15. The Municipal Commissioner, ]
Mahapalika Marg, CST, Mumbai, ]
16. Yusuf Shaikh Abdul. ] ... Defendants.
AND
Vastu Shilpa Complex Designers ] ..… Applicants/
Pvt. Ltd. ] Intervenor.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 26th March, 2018.
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Adv. for applicants present.
Adv. for plaintiffs absent.
Adv. For defendant absent.
ORDER
The applicants/Intervener have taken out this chamber
summons for adding it as party defendant.
2. The applicants have submitted that it being owner of the
suit property is necessary party to the present suit. It is stated that the
plaintiffs are trying to snatch orders from the court behind the back of
the applicants. The applicants got the knowledge about the present suit
when it came across the public notice issued by the plaintiffs on
26/09/2017 published in the daily newspaper Free Press Journal. It is
submitted that plaintiffs are aware about the applicants being owner of
the property. The applicants have stated how it became owner. The
applicants have acquired rights in the suit property on 13/03/2006. It
is stated that the applicants have developed the suit property and has
already constructed three buildings. The suit property forms part of the
recreation garden. The plaintiffs have suppressed the factual aspect,
hence applicants have submitted that it is a necessary party.
3. The plaintiffs filed reply denying therein the contents in
the chamber summons stating that the applicants have failed to aver or
to show its title. It is stated by the plaintiffs that the plaintiffs are
challenging the decree passed in the High Court Suit No.3108 of 1990
wherein the applicant was never a party. There is no privity of contract
between the plaintiffs and applicants. There is inordinate delay and it
is highly improbable how only the applicants came across the public
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notice in newspaper. The plaintiffs prayed for dismissal of the chamber
summons.
4. The applicants filed rejoinder denying therein the contents
of the reply and filed documents about its title.
5. Heard Advocate for the plaintiffs and the applicants.
Perused the documents filed on record.
6. In view of rival pleadings of the parties, following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
1. Whether the applicants are entitled
to be joined as party defendants to the
present suit ? : Yes.
2. What order ? : As per final order.
REASONS
Point No.1 :
7. The applicants have produced documents on record to
show that it is owner of the suit premises. The plaintiffs have
submitted that their suit is for adverse possession and they have
challenged the consent terms dated 19/10/1993. Therefore, the
applicants, who have no privity of contract with the plaintiffs, are not
necessary party. It is further stated that the applicant was not party to
the suit No.3108 of 1990 and in a suit for adverse possession plaintiffs
have to prove their title only against true owner. The plaintiffs have
placed reliance on the decision in case of Dagadabai (dead) by L.R.s
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Versus Abbas [2017 (4) ALL MR 448] wherein the Apex Court has
held that in a suit for adverse possession case is required to be proved
only against the true owner of the property. The plaintiffs have also
placed reliance on the decision in case of Kasturi Versus
Iyyamperumal and others [AIR 2005 SC 2813], to submit that
necessary party as per Order1 Rule10 of the Code of Civil Procedure,
is whose presence before the court may be necessary in order to enable
the court to effectively completely to adjudicate upon and settle all the
questions involved in the suit. Therefore, the plaintiffs have submitted
that the presence of the applicant is not necessary.
8. The plaintiffs have filed the suit in the year 1995 for
declaring them as owners by adverse possession and that consent terms
dated 19/10/1993 filed by the defendant No.1 against the defendant
No.10 are fraudulent, null and void and for permanent injunction. The
applicant has submitted that it has acquired the rights in the suit
premises. In the present suit the defendants are not appearing and the
suit is proceeding in their absence. Therefore, there is nobody present
to dispute the rights of the plaintiffs. The applicant has categorically
stated that it has became owner of the premises and there are
documents filed on record in respect of the same. Hence, when the
applicant has stated that it is owner of the suit premises, then definitely
it is entitled to protect its right in the suit property. The plaintiffs have
contended that in a suit for adverse possession, only true owner is
necessary party. Now, at present the applicant is owner, therefore
definitely it is a necessary party. The plaintiff has submitted that he is
challenging the consent terms in the Suit No.3108 of 1990 in which the
applicant was not party. However, the applicant has stated that he has
acquired the rights from the defendant No.1 in that suit. Hence, in
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these circumstances, also the applicant become necessary party. The
ratio laid down in case of Kasturi (supra) will not help the case of the
applicant because in that case the suit was for specific performance of
contract and only parties to the agreement were considered to be
necessary parties. But, in the present case applicants have stated that it
is owners of the suit premises and therefore become necessary party to
effectively and completely to adjudicate upon and settle all the
questions involved in the suit. As per Order22 Rule10 of the Code of
Civil Procedure, if the property is assigned or devolves during the
pendency of the suit, the suit may by leave of the Court be continued
by or against the persons or upon whom such interest goes or devolve.
Considering the above provision also I find that the applicant is
necessary party. Therefore, I answer Point No.1 in affirmative and
proceed to pass the following order.
ORDER
(i) The Chamber Summons No.56 of 2018 is allowed in terms of
prayer clause (a).
(ii) Plaintiff to carry out amendment on or before next date and
serve the amended copy upon the defendants and added
defendants.
(iii) Accordingly, Chamber Summons is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 26/03/2018
Dictated on: 26/03/2018
Transcribed on: 27/03/2018
Signed on: 28/03/2018
dbm/CR4
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
28/03/2018 at 5.50 p.m.
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
26/03/2018
Judgment/Order signed by P.O.on 28/03/2018
Judgment/Order uploaded on 28/03/2018
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