Final Order 1

Order Details: Chamber summons
Pdf Text: Order in Chamber Summons
No. 173 of 2019 1
MHCC010009162019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
CHAMBER SUMMONS NO.173 of 2019.
IN
S. C. SUIT NO.4938 of 2008.
Shrenik H. Mehta (HUF) ...Applicant/
Applicant.
In the matter of :-
1. Mr. Shambhaji Sopan Chavan & Ors. ..Plaintiffs.
V/s.
Mr. Gulam Dastagir Parkar ..Defendant.
Appearances :-
None for plaintiff.
None for defendant.
Adv. Bhavin Bhatia for applicant.
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 15/09/2023
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ORAL ORDER
This Chamber Summons is moved by one Mr. Shrenik
Mehta to implede him as a party to the suit. It is his contention that
applicant prior to this suit had filed Suit No.2977 of 2014 against the
defendant No.1 in City Civil Court at Dindoshi. Defendant No.1 herein
had also filed suit bearing No.431 of 2015 against the plaintiff in City
Civil vide Suit No.2977 of 2014 at Dindoshi for relief of injunction in
respect of suit premises bearing Gala No.102,Vijay Industrial Premises
Co-op. Hsg. Society. Limited, I.B.Patel Road, Goregoan (East) Mumbai.
Defendant No. 1 had moved Notice of Motion no. 2399 of 2015 seeking
injunction which was rejected. Thereafter defendant No. 1 preferred
appeal from Order No.245 of 2017 the Hon’ble High Court while
disposing the said appeal observed that the defendant No. 1 has raised
bogus contention. Thereafter, defendant No.1 withdraw the suit No. 431
of 2015. Accordingly, Suit No.431 of 2015 was disposed off.
2. Applicant further contends that defendants by hook or
crook want to dispossess him. Defendant No.2 had moved Notice of
Motion No.443 of 2015 in this suit seeking liberty to induct third person
as a licensee. The court has granted liberty to defendant No. 1 to let out
the suit premises on Leave and License basis. Consequently, defendant
No.1 entered into Leave and License Agreement dated 27.03.2015
despite of fact that suit premises are in possession of the plaintiff
herein. The applicant further contends that on 21.07.2015 defendant
No.1 sent ruffian and hooligans to his suit property. He has taken
photos of those persons in his mobile while those person were
examining the suit premises. The appearance of those person are also
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recorded in CCTV. The applicant has annexed footage of CCTV vide
Exh.H.
3. The applicant further contends that since present suit is
instituted, he was not prosecuting the suit before the City Civil Court at
Dindoshi. Thereafter pending suit defendant No. 1 made attempt to
dispossess the applicant from the possession of the suit property.
Defendant No.1 again moved Notice of Motion no. 2413 of 2018 to
permit him to execute Leave and License in favour of one Mr Abdul
Bakkar Haji Abdul Kadar Peringalam Cheriya. Notice of Motion No 2413
of 2018 is completely silent and suppressed the fact of litigation
initiated by the applicant. The applicant is continuously in possession of
the suit premises. The court may also appoint Court Commissioner or
any other competent the person to visit the suit premises to verify the
facts. The applicant is bonafide purchasers of suit premises and he has
also made full and final payment of consideration to the defendant No.1
and defendant No.1 had handed over the vacate and peaceful
possession of the suit premises in or about 30.09.2012 in favour of the
applicant. The present suit cannot be disposed of without his presence.
Hence, he be added as a party to the suit. Hence, this Chamber
Summons.
4. Defendant filed the affidavit in reply to the Chamber
Summons. It is his contention that the applicant has no locus standi to
file this Chamber Summons. The applicant is not in possession of the
suit premises. The present suit is filed by the plaintiff against him
seeking relief of specific performance of which the applicant has no
concern. He submits that he had instituted the suit No.431 of 2015
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before City Civil Court at Dindoshi. He also states that the applicant
had also instituted Suit No.2977/2014 for injunction wherein applicant
was refused to grant ad interim relief. Thereafter applicant preferred
appeal before Hon’ble High Court vide Appeal from Order No. 662 of
2015. The Hon’ble High Court also refused to grant ad interim relief in
favour of the applicant. Thereafter the applicant withdrawn suit
No.2927 of 2014. The suit premises are in possession of the plaintiff.
The applicant with intend to create hindrance in the proceeding moved
this Chamber Summons. Hence, prayed to reject the Chamber
Summons.
5. It is submission of the Ld. Advocate for the applicant that
photographs and footage of CCTV
prima-facie show that applicant is in
possession of the suit premises. Applicant has prima facie. The
presence of the applicant is essential to decide controversy of the the
matter. The plaintiff has instituted the suit for specific performance
against the defendant. The applicant is in possession of the suit
premises hence, in absence of the hearing of the applicant suit of the
plaintiff cannot be adjudicated on merit. Hence prayed to allow the
Chamber Summons.
6. The plaintiff and defendant failed to argue. Hence,
considering the submission of the Ld advocate for the plaintiff and
contention raised vide this Chamber Summons and reply filed by
defendant, this Chamber Summons is taken into consideration for final
disposal. At the outset, it is necessary to note that the applicant does
not deny that he has instituted suit No.2977 of 2014 which is
withdrawn later-on. It is specific contention of the applicant, that he is
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in possession of the suit property, hence, he is a necessary party to the
suit. The applicant relies upon photos annexed with Chamber
Summons. Averments in the Chamber Summons are denied by the
defendant on record. Admittedly, defendant is original owner of the suit
premises as it is case of the applicant that defendant handed over the
possession of the suit premises as per agreement. The present suit is
instituted for specific performance. The defendant himself contends that
the plaintiff is in possession of the suit premises. However, the plaintiff
failed to observe the terms and condition of the agreement. It is also
contention of the defendant that applicant has no locus-standi to
implede him as party to the suit. It is specific contention of the
defendant that the applicant did not get relief before this Court as well
as from Hon’ble High Court also. Hence, this Chamber Summons is
moved.
7. Considering the submission of both sides it is essential to
see whether the presence of the applicant is essential to resolve
controversy in between the parties to the suit. Admittedly, the suit is
filed for specific performance against the defendant. The applicant does
not claim that he is party to the agreement in question. It is specific case
that he is in possession of the suit property and if he is not impleded as
a party to the suit, he will suffer irreparable loss. The applicant also
does not deny that he had instituted the suit No. 2779 of 2014 against
the defendant for injunction which is withdrawn by him. In addition, it
is his submission that as the present suit was pending, he did not pursue
his own suit hence he withdrawn the same. The Chamber Summons
registered in the year 2019. The applicant has knowledge of the present
suit when he persuaded his own suit No. 2799/2014. The applicant has
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filed affidavit in rejoinder to the reply fo the defendant. He denied that
the contention of the affidavit in reply in para no. 8 are incorrect.
However, applicant had knowledge when the Suit No. 2799 of 2014 was
instituted by him for relief as sought against the defendant. He admits
that this Court refused to grant interim injunction in his favour and in
Appeal No.662 of 2015 also same relief was rejected by Hon’ble High
Court. He also admits that he withdraw the Suit No. 2977 of 2014.
8. The applicant claims possession over the suit property
being the owner. Except photos appended to the Chamber Summons,
applicant has not filed any documents to show that he has title over the
suit property. It is his contention that the defendant No. 1 has inducted
of one Gulam Dastagir Parkar as a licensee which will try to dispossess
him from the suit premises. Hence, his presence is necessary. At the
cost of repetition, it is significant to note that as the plaintiff has
instituted this suit for specific performance. It is admitted to the
applicant that defendant No.1 is owner of the suit premises and he also
contends that the defendant is now in attempt to execute license in
favour of the third person which will dispossess him. It means at this
juncture defendant on record has title though applicant claims to be
owner of the suit property. Withdrawal of the suit No. 2977 of 2014
instituted by the applicant goes against the applicant. It is also worthy
to note that the fact that the applicant had knowledge of pendency of
the suit with this City Civil Court at Dindoshi when order dated
24.12.2014 was passed. There is no explanation on the part of the
applicant why he did not file this Chamber summons in the year 2014
itself. The observation of the City Civil Court at Dindoshi that the
defendant herein is in possession of the suit property which are
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confirmed by the Hon’ble High Court goes against the case of the
applicant that he is in possession of the suit property and hence he has
no prima facie case to implede him as a party to the suit.
09. It is also significant to note that the Hon’ble High Court
from Appeal Order of Suit No. 662 of 2015 preferred by the applicant
against the order of refusing ad-interim relief in Suit No. 2799 of 2014
had directed trial court to dispose of Notice of Motion pending therein
within eight weeks. Consequently, the appeal preferred by applicant was
disposed off. Therefore, the applicant ought to have pursue the suit No.
2799 of 2014 and Notice of Motion pending therein. However he
withdrawan suit. Applicant states that he has no concern with
agreement in between the plaintiff and defendant. On this count, also
the applicant has no case to implede him as the party to the suit. In the
result following order is passed.
ORDER
1. Chamber Summons no. 173 of 2019 is rejected.
2. Chamber Summons No. 173 of 2019 is disposed off
accordingly.
(Dictated and Pronounced in open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:15.09.2023 Greater Bombay (CR 59).
Declared on : 15.09.2023
Dictated on : 15.09.2023
Transcribed on : 30.09.2023
Checked on : 05.10.2023
Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.10.2023 at 4.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 15.09.2023
Order signed by P.O. on 06.10.2023
order uploaded on 09.10.2023
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