Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CHS 10119 IN SU 141709
CNR NO.MHCC01-000889-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.101 OF 2019
IN
L.C. SUIT NO.1417 OF 2009
Narvadaprasad Sitaram Mishra ]....Plaintiff.
Versus
The Municipal Corporation for ]
Greater Mumbai. ]... Defendant.
Ozzie Jerome D'Souza & Ors. ]... Applicants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 20th September, 2019.
Mr. Mukesh Dubey, Advocate for plaintiff.
Mr. Giri, Advocate for Defendant/ MCGM.
Mr. Pradeep Yadav, Advocate for applicants.
O R D E R
1. By this Chamber Summons the applicants have sought a direction
to the plaintiff to add the applicants as defendants 2 to 5.
2. The applicants contend that they are legal representatives and
legal heirs of late Mr. Jerome Joseph D'Souza who was the original
owner of the entire plot of land by way of the will executed in his
favour. Mr. D'Souza died on 7.6.2016 leaving behind applicants. They
have acquired rights through Mr. D'Souza. Mr. D'Souza was owner of
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suit chawl in which the suit structure is situated. He had filed Suit
No.793 of 2006 before the Hon'ble High Court against the plaintiff
herein and others seeking cancellation of alleged Deed of Conveyance
dated 15.3.2005. He had taken out a notice of motion wherein ad
interim relief was refused however, in appeal the Hon'ble High Court has
observed that no probate will be required and observed that Mr. D'Souza
may collect the rent from the tenant and deposit the same in the office of
Prothonotary and Sr. Master. Statusquo was also directed to be
maintained. Said order is still in force. Mr. D'soza was the actual owner
and landlord by virtue of Will. The plaintiff had filed a Criminal case
against Mr. D'soza alleging forgery of the Will however, the police had
filed "C" Summary report which is upheld by the Hon'ble High Court.
The conveyance Deed is under challenge before the City Civil Court. The
plaintiff is harassing the tenants. One of the executors of conveyance
deed has executed an affidavit stating that her signature on conveyance
deed was obtained by fraud. The applicants thus have rights in the suit
structure and are necessary parties to the suit. The plaintiff cannot claim
ownership on the basis of a forged and fabricated deed of conveyance.
Plaintiff has filed present suit behind back of applicants.
3. Chamber Summons is opposed on the ground that the issues in the
suit can be decided effectively in absence of the applicants. Applicants
are neither necessary nor proper party to the suit and have no interest in
the suit premises. They are using defendant Corporation to settle the
private dispute. They are free to adopt appropriate proceedings. There
is no cause of action for the applicants to file the Chamber Summons.
The contents in the affidavit in support of the Chamber Summons are
false. The affidavit is filed by Mr. Vora as Power of Attorney holder who
has no concern with the subject matter of the suit. He has no personal
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knowledge of the subject matter of the suit and the Chamber Summons.
The applicants would have taken out the Chamber Summons at the
earliest if they really had some interest in the suit premises.
4. Perused. Heard.
5. The perusal of Affidavit in support of Chamber Summons as well
as the documents attached thereto clearly reveal that the applicants are
seeking their impleadment as defendants in the suit on the basis of two
circumstances. The first one is that, late Mr. Jerome Joseph D'Souza was
the owner of land by virtue of a Will and after his death the applicants
have acquired rights in the land. The second one is that the conveyance
deed in plaintiff's favour is under challenge.
6. It is the applicants' own case that the Will is under challenge. The
copy of order dated 30.11.2009 produced by the applicants on record
reveal that the Hon'ble Bombay High Court has kept open the question of
genuineness of the Will. Thus, it is apparent that genuineness of Will is
subject matter of the suit. Consequently, it cannot be said that by virtue
of said Will the rights of Mr. D'Souza are established. Thus, the
applicants' rights are also not yet crystallized. The applicants have also
come with a case that the suit challenging conveyance in favour of the
plaintiff is pending. Thus, when the suit is still pending and the
conveyance is not yet set aside the applicants do not get any help from
said circumstance.
7. It is the settled law that a person having clear rights in a property,
which is the Subject matter of the suit, can be impleaded in the suit as
either necessary or proper party, depending the circumstances of the
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subject matter of the suit.
8. In this case the plaintiff has challenged the Notice issued under
Sections 351 and 354A issued by the defendant Corporation. The
applicants' rights in the suit premises are not yet crystallized as the Will
executed in favour of Mr. D'souza is still the Subject matter of challenge
in a suit. In such circumstances, when their rights in the suit premises
are not crystallized, they cannot be added as parties to the suit.
Consequently, I hold that the issues in present suit can very well be
effectively and completely adjudicate even in their absence. Thus, the
applicants are neither necessary nor proper parties to the suit. In the
result, I hold that the Chamber Summons lacks of merits. Resultantly I
pass following order:
ORDER
1. Chamber Summons is dismissed.
2. No order as to costs.
Sd/
(A.N. MARE)
Judge,
20/09/2019 City Civil Court, Mumbai.
Dictated On : 20.09.2019
Transcribed on : 30.09.2019
HHJ Signed on : 03.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
03/10/19 03.15 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
20.09.2019
JUDGEMENT /ORDER signed by
P.O. on
03.10.2019
JUDGEMENT /ORDER uploaded
on
03.10.2019
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