Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 139 OF 2018
IN
L. C. SUIT NO. 1525 OF 2010
Subhash Ramprakash Khanna .. Applicant
In the matter between
Satyapal Ramprakash Khanna .. Plaintiff
Vs.
Mumbai Municipal Corportion for
Gr. Mumbai and Ors. .. Defendant.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 19th December, 2018
Ms. Zara , ld. advocate for Applicant.
Mr. Prabhu, ld. advocate for plaintiff.
Mrs. Hajare, ld. adv. for defendant/BMC.
O R D E R
1. This Chamber Summons is taken out by applicant Subhash
Ramprakash Khanna for directions to plaintiff to amend the plaint and
to add applicant as plaintiff to this suit. Applicant has filed his
affidavit in support of Chamber Summons contending that present suit
is filed by plaintiff Satyapal Ramprakash Khanna for declaration that
show cause notice bearing No. L/BFVI/351/3960/0910 dated
09.06.2009 issued by defendant no. 1 BMC in respect of common toilets
on the ground floor and first floor of Khanna Estate (suit premises) is
bad in law, illegal and invalid and liable to be set aside. In or around
November 2011 certain dispute arose between plaintiff and applicant in
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relation to various properties including suit premises. The disputes
were referred to arbitration by plaintiff and applicant. Those disputes
came to be amicably settled by a consent award dated 24.04.2017.
Pursuant to the terms of consent award, applicant was provided the
papers of present suit and after perusing those papers applicant came to
know that disputed notice issued by defendant no. 1 is in respect of
common area which is in the joint possession of plaintiff and applicant.
Therefore applicant is intending to challenge the same, since if at all the
toilets were to be demolished, the interest of applicant would be
affected as well. Hence according to applicant, it is imperative to add
applicant as plaintiff to present suit and amendment to that effect as
shown in schedule A to the Chamber Summons is necessary to be
carried out. With the help of those contentions applicant has prayed
to allow the Chamber Summons.
2. Plaintiff Satyapal Khanna has filed his affidavit of reply to
the Chamber Summons contending that applicant has prayed to add
him as plaintiff no. 2 in view of the clause no. 11 of the consent terms
dated 08.03.2017 in arbitration petition and award dated 24.04.2017
passed therein. It is contention of plaintiff that as per said clause no.
11 of the consent term, it is granted between the parties that
respondent no. 1 shall hand over to the claimants all the papers and
proceedings in respect of Suit no. 1525/2010 and 1526/2010
alongwith no objection of advocate appearing on behalf of respondent
no. 1 (original plaintiff herein) in those suits within a period of one
month from the date of filing of consent terms and claimant no. 1
(applicant herein) shall pursue said suits and apply therein for
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substituting his name in place of original plaintiff. In view of said
clause now plaintiff has nothing to do with this suit and he may be
replaced with applicant by deleting name of plaintiff from said suit. As
such plaintiff has given no objection for adding applicant's name in the
plaint by deleting name of plaintiff.
3. Applicant Subhash Khanna has filed his affidavit of
rejoinder contending that applicant is denying the contentions raised in
the reply are denied, save and except to the institution and averments
as contend in the reply. It is alleged that plaintiff has failed or
neglected to make out any case whatsoever in his favour. Therefore
applicant has taken out present Chamber Summons to implead
applicant as plaintiff no. 2 in the suit since it is in the interest of
applicant to challenge the show cause notice.
4. I have heard learned advocate for applicant Ms. Zara and
learned advocate Mr. Prabhu for plaintiff. Applicant's advocate
submitted that in view of para 11 of arbitration award dated
24.04.2017, applicant is necesssary to be added as plaintiff no. 2 by
keeping name of original plaintiff Satyapal Khanna as it is. Learned
advocate for plaintiff submitted that in view of para no. 11 of award,
which is passed by the Retired Hon'ble Justice Mr. Rebello, it is
necessary to substitute applicant as plaintiff by deleting the name of
original plaintiff Satyapal Khanna.
5. The copy of award dated 24.04.2017 passed in the
Arbitration proceeding before sole arbitrator presided over by the
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Hon'ble Dr. Justice F.I. Rebello, Former Chief Justice of High Court of
Allahabad is filed on record alongwith the Chamber Summons. Para 11
of consent terms referred in said award is as under:
“ there are two (2) suits being (I) suit No.
1525/2010 and (ii) Suit No. 1526/2010 pending in
the Hon'ble City Civil Court, Mumbai filed by Mr.
Satyapal Khanna respondent no. 1 against M.C.G.M.
challenging the notices both dated 09.06.2009, issued
under section 351 of BMC Act alleging unauthorised
construction in respect of Two AC Roof Sheds bearing
No. R1 and R2 and on the first floor of Khanna
Estate. Presently there is a stay granted by Hon'ble
City Civil Court in respect of said notices. The
respondent no. 1 shall hand over to claimants all
papers and proceedings in respect of these suits with
the “No Objection” of the advocate appearing on
behalf of respondent no. 1 in those suits within a
period of one month from the date of filing of these
consent terms and claimant no. 1 shall thereafter
pursue the said suit and apply therein for substituting
his name in place and instead of respondent no. 1.”
6. On plain reading of para 11 of consent terms referred in
arbitration award dated 24.04.2017, it becomes clear that plaintiff and
applicant have agreed that applicant should be substituted in the title
clause of plaint of this suit. As such it becomes clear that applicant is
necessary to be substituted as plaintiff in this suit and as applicant is
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being substituted as plaintiff in this suit in place of Satyapal
Ramprakash Khanna, it becomes necessary to delete name of Satyapal
Ramprakash Khanna from the title clause of plaint of this suit by
substituting name of applicant in place of original plaintiff. Hence I
proceed to pass following order.
O R D E R
1. Chamber Summons No. 139/2018 is made absolute and
applicant is permitted only to amend the plaint for substituting
applicant's name as plaintiff of the suit. However applicant's
prayer for keeping the name of original plaintiff Satyapal Khanna
as plaintiff no. 1 in the suit cannot be allowed in terms of para 11
of consent terms filed by parties before the Arbitrator. Hence
prayer of applicant to keep the name of original plaintiff Satyapal
Khanna as plaintiff no. 1 in the suit stands rejected.
2. As applicant is substituted as plaintiff to this suit, applicant is
directed to carry out within stipulated time necessary amendment
in the plaint by substituting name of applicant in title clause of the
plaint by deleting name of original plaintiff Satyapal Ramprakash
Khanna.
3. Applicant is directed to replace his name in place original plaintiff
Satyapal Ramprakash Khanna as shown in schedule annexed to
Chamber Summons.
(K.P.Nandedkar)
Judge,
City Civil Court,
19.12.2018 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
20/12/2018 03.40pm Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 19/12/2018
Judgment/order signed by P.O on 20/12/2018
Judgment/order uploaded on 20/12/2018
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