Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.93/2018 ..1.. Suit No.1461/2017
CNR No.MHCC010005542018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.93 OF 2018
IN
SUIT NO.1461 OF 2017
Niyaz AH Qureshi and Anr. .. Plaintiffs
Versus
Mohd. Iqbal Qureshi and Anr. .. Defendants
And
Aslam Abdul Rahim Goli and others .. Applicants
Mr. Manoj Harit, advocate for plaintiffs
Mr. P. M. Bhat, advocate for defendants
Mr. Shamim & Mr. Ansari, advocates for applicants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 10th January, 2019
ORAL ORDER
Applicants have taken out present chamber summons making
prayer to direct the plaintiffs to join/add them as party defendants to
present suit.
2. It is the contention of applicants that they are owners and
landlords of the property being Khandwani Building, having address at
278, Khandwani Building, Maulana Shaukatali Road, Mumbai – 400008
bearing Cadestral Survey No.204(Part) of Tardeo Division. It is further
contended that they have acquired aforesaid property vide registered
Conveyance Deed dated 28.03.2011. They being landlords of aforesaid
property have filed RAE Suit No.1417/2209 of 2010 before the Small
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Causes Court against the heirs of original tenant Smt. Rahmatbi widow
of Habibullah Qureshi who was tenant in respect of Shop No.1 in the
aforesaid property. Said RAE suit has been filed for termination of
tenancy rights in respect of shop No.1 and for obtaining possession of
the suit premises of shop No.1 from heirs of original tenant and also
from one Mehmood Munna Qureshi who was unlawfully inducted in
the suit premises by heirs of original tenant.
3. It is further contended that applicants have already settled the
matter with heirs of original tenant Smt. Rahmatbi and filed consent
terms in that regard before Small Causes Court. Plaintiffs and
defendants in present suit in collusion with each other have
intentionally misrepresented the facts before this court and tried to play
fraud upon this court. They are in connivance with each other. It is
pertinent to note that plaintiffs and defendants in present suit are
jointly contesting Suit bearing No.36 of 2015. However, they have
suppressed the said fact. It is further contended that it is just and
necessary to join/add the applicants herein as party defendants in the
present suit as they are proper parties because, if any, order is passed in
the present suit behind their back then it would directly affect their
rights. It is necessary to join/add the applicants so that they can bring
true and correct facts before this court. Accordingly, they made prayer
in above terms.
4. Plaintiff No.1 opposed chamber summons by filing affidavit in
reply. It is contended that applicants have no right and title over the
suit property. They are completely strangers. Suit filed by applicants
before Small Causes Court is collusive suit. Plaintiffs are not party to
the said RAE Suit and therefore order in the said suit is not binding
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upon the plaintiffs. Plaintiff No.1 is in possession of suit premises legally
and present suit has been filed to assert said rights and get declaration
to that effect from this Court. No cause is made by the applicants to
join them as party defendants to present suit. Accordingly, plaintiff No.1
prayed for dismissal of chamber summons.
5. Perused chamber summons, affidavit in support of it, affidavit in
reply of plaintiff no.1, rejoinder filed by applicants and documents filed
by parties. Heard respective counsel for parties. They advanced their
arguments in accordance with their respective contention. I have also
gone through the written notes of arguments filed by applicants.
6. It is settled law that necessary party is a person who ought to
have been joined as a party and in his absence no effective decree can
be passed at all by the court while proper party is a party who though
not a necessary party, is person whose presence can enable the court to
completely, effectively and finally adjudicate upon all matters in dispute
in the suit though he need not be a person in favour or against whom
decree is to be made.
7. Now, it is to be seen whether applicants need to be impleaded as
party to the present suit.
8. On perusal of plaint it is clear that plaintiffs have sought relief of
injunction against defendants in relation to Shop No.1, 278, Khandwani
building, M. S. Ali Road, Mumbai–400008. Plaintiffs claimed that heirs
of Rahmatbi handed over vacant possession of suit premises to them
and defendants jointly. It is not in dispute that in present suit plaintiffs
have not claimed any relief against applicants. It is matter of record
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that applicants have filed RAE Suit No.1417/2209 of 2010 against heirs
of original tenants and one Mehmood Munna Qureshi claiming eviction
and possession of suit premises bearing Shop No.1, at 278, Khandwani
Building, Maulana Shaukatali Road, Mumbai–400008 bearing Cadestral
Survey No.204(Part) of Tardeo Division. Thus, subject matter is
identical in both suits. It is also clear that settlement has taken place
between applicants and heirs of original tenant and said RAE suit is
continued against Mehmood Munna Qureshi. From copy of judgment
dated 25.04.2018 passed in RAE Suit No.1417/2209 of 2010 filed along
with affidavit in rejoinder by applicants it is clear that said RAE Suit
No.1417/2209 of 2010 has been decreed in favour of applicants and
defendants therein were directed to deliver vacant and peaceful
possession of suit premises to the plaintiffs therein i.e. applicants
herein.
9. Keeping in view aforesaid facts, it is clear that applicants have
interest in the suit property. Although no relief has been sought by
plaintiffs against applicants in present suit but considering above facts
and that, applicants have made allegation of collusion between
plaintiffs and defendants as they are close relatives of each other, I am
of the view that presence of applicants is necessary for complete,
effectual and final decision of question involved in present suit. I hold
that in the facts of present matter applicants are proper parties and
their presence is necessary for effective and complete adjudication of
the issues involved in the suit. Therefore, chamber summons deserves to
be allowed. Hence, pass following order:
ORDER
1. Chamber Summons No.93 of 2018 is allowed and made
absolute in terms of prayer clause (a).
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2. Plaintiffs are directed to implead applicants as party defendants
to the suit.
3. Plaintiffs to carry out necessary amendment in plaint cause title
within the period of 14 days from the date of this order and
copy of amended plaint be served upon defendants and newly
added defendants.
4. Accordingly, Chamber Summons No.93 of 2018 stands
disposed off.
(M. T. Asim)
Judge
Date : 10.01.2019 Gr. Bombay
Transcribed on : 10.01.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.01.2019, 5.50 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.01.2019
JUDGMENT/ORDER signed by P.O.
on
11.01.2019
JUDGMENT/ORDER uploaded on 11.01.2019
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