Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.280 OF 2019
CNR NO.MHCCO10014392019
HIGH COURT CHAMBER SUMMONS NO.1022 OF 2011
IN
S.C. SUIT NO.6454 OF 2006 AND HIGH COURT SUIT
NO.1567 OF 2006
Mr.Ivor Fonnseca & Anr ..Plaintiff
Versus
M/s.Nikita Properties & Anr ..Defendants
AND
Ms.Neela S.Gehi ..Respondent
Ld. advocate Sanket Mungle for plaintiff
Ld. advocate Vidhi Patel for defendant no.1
Ld. advocate Nagvadaria for defendant no.2
Ld. advocate Kaushal Udeshi for respondent
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 27/09/2019
ORAL ORDER
1. This chamber summons is tendered by the plaintiffs
for amendment of plaint.
2. Heard. Ld. Counsel for the plaintiffs submitted that
plaintiffs have filed the suit for specific performance
of agreement for sale of a flat admeasuring minimum
450 sq. feet (carpet area) on the 4th floor of the
building known as Casa Baptista at final plot no.598,
TPS III, Mahim, Mumbai 400 016(hereinafter
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referred to as suit flat). The plaintiffs some what in
March 2010 , came to know that respondent was
occupying the suit flat. The plaintiffs filed the
additional affidavit about the aforesaid fact of the
illegal possession and occupation of the respondent.
The plaintiffs tried to serve the proceedings and
notice of motion to the proposed respondent. The
partner of defendant no.1 filed additional affidavit
and submitted that by a deed of cancellation dated
25/08/2008, purported allotment of the suit flat to
defendant no.2 was cancelled and suit flat was sold
to respondent vide agreement of sale dated
25/08/2008 and the respondent was in possession
and therefore the plaintiffs have taken out the
present chamber summons to add him as party
defendant.
3. The chamber summons is opposed by defendant no.1
on the ground that the plaintiffs have taken out
earlier chamber summons no.91 of 2011 for the same
relief for joining the respondent as party defendant in
the suit and the same was withdrawn by the plaintiffs
without getting any relief from Hon'ble High Court.
The same is recorded in the order dated 21/03/2011.
The suit is false, frivolous, mischievous and malafide
in nature. The plaintiffs were provisionally allotted
with one flat and the said provisional allotment was
cancelled. The respondent is not a necessary party to
the suit and therefore not required to be impleaded.
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4. The respondent also filed reply and contended that
avernments in the chamber summons are contrary.
She submitted that she is NRI and often travels
between India and Muscat. She has purchased the
flat without notice of any encumbrance and/or lien
of any nature with respect to the said flat. She
submitted that she is not necessary and proper party
to the suit.
5. The suit is for specific performance of the contract.
Admittedly the transaction was between defendant
no.1 and respondent during the pendency of the suit.
Ld. Counsel for the plaintiffs submitted that in order
to avoid future complications and multiplicity of the
proceedings, the present chamber summons should
be allowed.
6. On perusal of the record, it appears that issues were
framed on 26/06/2018 but the chamber summons
was filed before the Hon'ble High Court in the year
2011, therefore it cannot be said that it was filed
after framing of the issues. It is pointed out that
earlier chamber summons was withdrawn by the
plaintiffs and filed this chamber summons before this
Court for the same relief. The Hon'ble High Court in
the order dated 21/03/2011 has made it clear that
plaintiffs have sought leave to withdraw the chamber
summons with liberty to file fresh chamber summons
and the said liberty was granted. Therefore, the said
objection is not sustainable.
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7. Ld. Counsel for the plaintiffs submitted for deciding
the real controversy and for proper adjudication of
the matter, this chamber summons needs
consideration. He placed reliance upon the judgment
of Hon'ble Apex Court in the case of Revajeetu
Builders and Developers V/s Narayanaswamy and
sons and others, (2009)10 Supreme Court Cases 84.
8. Ld. Counsel for the respondent opposed the chamber
summons and submitted that the third party cannot
be necessary party and therefore respondent cannot
be added as a party. In support of his contentions,
he has placed reliance upon the judgment of Hon'ble
Apex Court in the case of Kasturi V/s Iyyamperumal
and others, (2005) 6 Supreme Court Cases 733.
9. I have considered the law laid down in the case of
Kasturi(supra). The parties to the contract or parties
claiming under them, or a person who had purchased
the contracted property from the vendor with or
without notice of the contract and the person who
claims independent title and possession adversely to
title of vendor is not a necessary party, since an
effective decree can be passed in his absence. In the
case in hand, the respondent is stepping in the shoes
of defendant no.1 claiming as a title holder of the
suit flat. No interest adverse to the interest of
defendant no.1 is claimed by the respondent. Hence,
the law cited in above case with greatest of respect is
not applicable.
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10. Ld. Counsel for the respondent argued that
issues were framed, the affidavit of evidence was
filed on 28/08/2018 and once the trial is
commenced, application for amendment cannot be
considered. He placed reliance upon the judgment of
Hon'ble Supreme Court in the case of Vidyabai and
others Versus Padmalatha and anr, (2009) 2
Supreme Court Cases 409.
11. The chamber summons was filed before the
Hon'ble High Court, it was registered as 1022 of
2011 and it was renumbered by this Court for
statistical purpose in the year 2019 as 280 of 2019
and therefore it cannot be said that it was filed in the
year 2019 after commencement of trial. The dispute
between the parties is transfer of suit flat in the name
of respondent pending the suit. Therefore, to avoid
multiplicity of the proceedings and future
complications, the chamber summons needs
consideration as the respondent is a proper party to
the suit. Even otherwise all the dispute between
parties is in respect of same subject matter should be
decided in single compass of litigation. No prejudice
would be caused to the defendants or the respondent
if the present chamber summons is allowed. Hence, it
is expedient to pass following order:
ORDER
1. Chamber Summons no. 280/2019 (High Court
Chamber Summons No. 1022/11) is made absolute
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in terms of prayer clause (a).
2. Plaintiff to carry out necessary amendments within
14 days from today.
3. Chamber summons is disposed of accordingly.
27/09/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 27/09/2019
Transcribed on: 01/10/2019
Signed on : 04/10/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/10/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
27/09/2019
Judgment and order signed by P.O. 04/10/2019
Judgment/order uploaded on 04/10/2019
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