Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO. 197 OF 2019
IN
S.C. SUIT NO. 44 OF 2015
Mr. Mukund Namdeo Nikte & Ors. .. Plaintiffs
Versus
The Vijay Coop Housing Society Ltd. & Ors. .. Defendants.
And
Mr. Shivaji Ganesh Pednekar .. Applicant.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 9th April, 2019
Mrs. Navale, ld. adv. for plaintiff.
Mr. Rajput, ld. adv. for defendants.
O R D E R
1. This Ch/s is taken out by plaintiffs for permitting the
plaintiffs to add M/s Sai Life Devataa Realtors partnership firm,
through its partners as defendant no. 4 in the matter. Plaintiff no. 2
has filed his affidavit in support of Ch/s contending that the present
suit is filed for getting various reliefs set out in the prayer clauses of
the plaint. While filing this suit, proposed defendant i.e. Sai Life
Realtors was not in existence and said proposed defendant entered
into agreement with defendant no. 1 society later on and took over
all rights from defendant no. 2 developer. Hence said proposed
defendant is necessary party to the suit. As mentioned in the
affidavit of plaintiff no. 2, defendant kept plaintiffs in dark about
the agreement between defendant no. 1 and proposed defendant.
It is alleged that defendants have kept plaintiffs in dark about
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development rights transferred by defendant no. 2 to proposed
defendant. However in para no. 16 of written statement defendant
no.1 has clearly stated that rights under development agreement
dated 31.10.2012 are transferred to M/s Sai Life Realtors which
clearly establishes the fact that development rights of defendant no.
1 society are already been transferred by defendant nos. 1 and 2 to
proposed defendant. Hence according to plaintiffs it is necessary to
make absolute Ch/s because it will cause no prejudice or loss to the
defendants if it will be allowed.
2. Mr. Vipesh Patil Secretary of defendant no. 1 society
has filed his affidavit to resist Ch/s. Mr. Leebin Shreedharan
Muthathyan , Sole proprietor of defendant no. 2 also has filed his
affidavit of reply to resist the Ch/s. Contentions in both affidavits
are same. Both those defendants have contended that contentions
raised in Ch/s are inconsistent. According to defendants plaintiffs
are aware about developments that have taken place with regard to
redevelopment of property of defendant no. 1. In a General Body
Meeting of defendant no. 1 held on 16.04.2017, defendant no. 1
passed a resolution, consented and approved assignment of
defendant no. 2 in favour of proposed defendant. Disputed
transfer of development rights was confirmed by Deputy Registrar
by his letter dated 04.06.2016.
3. According to defendants in October 2017 they filed
additional reply to the plaintiff's N/m wherein above fact was
specifically set out and explained in detail. Defendant no. 1 has
filed its written statement on 15.01.2018 in which above facts were
set out. In written statement defendant no. 1 has pleaded that
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proposed defendant is not made party to the suit and therefore
plaintiffs claim has become infructuous for non joinder of necessary
parties or for misjoinder of parties as defendant no. 2 is no more
developer of the society. According to defendant nos. 1 and 2
plaintiffs are aware of above facts since 2016 but they deliberately
neglected to implead proposed defendant in suit. Further proposed
defendant is not shown as respondent in present Ch/s and therefore
according to defendant Ch/s deserves to be dismissed.
4. Heard plaintiffs advocate Mrs. Navale who has argued
that in the pendency of the suit, defendant no. 2 i.e. Sai Life
Relators, the firm has transferred its right in respect of
development of suit property to proposed defendant and copy of
Index No. II is produced on record. It is further argued that in view
of Order 1 Rule 10 of CPC plaintiff is entitled to add proposed
defendant in the suit. Lastly it is argued on behalf of plaintiff that
no prejudice will be caused to defendants if proposed amendment
will be allowed because proposed amendment is not going to
change nature of the suit.
5. In reply defendants advocate Mr. Rajput strongly
argued that plaintiffs have not impleaded proposed defendant as
respondent to Ch/s and hence unless proposed defendant has
opportunity to challenge the Ch/s, it cannot be allowed. Further as
mentioned in the affidavit of reply it is argued that since 2016
plaintiffs were aware about development in the matter but Ch/s is
taken out after filing written statement by defendant no. 1 and
when it was brought to the notice of the Court that suit is bad for
non joinder of necessary party as proposed defendant was not
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shown in defendant array. It is argued that as plaintiffs have not
filed Ch/s in last three years, conduct of plaintiff is necessary to be
noted down by the Court. Further it is argued that Ch/s is taken
out to fill up the lacuna hence according to defendants advocate
plaintiffs are not entitled to the prayers made in Ch/s.
6. After giving serious considerations to the arguments
advanced it becomes necessary to refer here order 1 Rule 10 of CPC
which provides that : Where a suit has been instituted in the name
of wrong person as plaintiff was aware it is doubtful where it has
been instituted in the name of right plaintiff, Court may at any stage
of the suit after satisfaction that suit has been instituted through
bonafide mistake and that it is necessary for the determination of
the real matter in dispute so to do order any other person to be
substituted or added as plaintiff upon such terms as the Court
thinks just.
7. On careful perusal of Order 1 Rule 10(2) of CPC it is
noticed that plaintiff's advocate has wrongly referred said provision
of law and actually Order 1 Rule 10(2) of CPC is applicable which
provides that “Court may at any stage of the proceedings, either
upon or without the application of either party, and on such terms
as may appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be struck
out, and that the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence before
the Court may be necessary in order to enable the Court effectually
and completely to adjudicate upon and settle all the questions
involved in the suit, be added”.
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8. On perusal of Sub Rule 2 of Rule 10, Order 1 of CPC it
becomes clear that Court may direct plaintiff to add any necessary
party to the suit. Actually on perusal of written statement filed by
defendant no. 1 it was expected that plaintiffs should have taken
out Ch/s in the month of February or March 2016. However, it is
submitted that matter is transferred from one Court to another.
Hence parties cannot be blamed for delay in taking out Ch/s or
filing its reply. Admittedly rights of development of suit property
are transferred by defendant no. 2 to proposed defendant by
agreement which is registered on 30.06.2017. As such issue
involved in suit cannot be adjudicated in absence of proposed
defendant. Therefore even if proposed defendant is not impleaded
as respondent in Ch/s, I find that proposed defendant is necessary
party to the suit because in the absence of proposed defendant this
Court will not be able to decide the issues involved in the matter
substantially. At the same time, it becomes necessary to consider
here that draft issues are filed by parties long back in the month of
July and September 2018. In such circumstances, as yet the issues
are to be settled by the Court, it can be said that amended rules 17
of Order 6 will not come into picture and amendment can be
allowed. As it is admitted fact that defendant no. 2 is now no role
to play in development of suit property and proposed defendant has
to develop suit property, I find that proposed defendant is necessary
party to the suit. Hence, I proceed to pass following order.
O R D E R
1. Ch/s No. 197/2019 is mad absolute in terms of prayer
clause (a).
2. Plaintiff is directed to carry out proposed amendment in the
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plaint within stipulated time provided by law
3. Plaintiff is further directed to serve typed copy of amended
plaint upon proposed defendant and to file one typed copy of
amended plaint before the Court so that defendants will be
able to file additional written statement in respect of
consequential amendment. At the same time plaintiff will
have to serve typed copy of amended plaint upon defendant
nos. 1 to 3.
(K.P.Nandedkar)
Judge,
City Civil Court,
09/04/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
11/04/2019 11.40 a.m. Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 09/04/2019
Judgment/order signed by P.O on 11/04/2019
Judgment/order uploaded on 11/04/2019
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