Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.22018
CNR No. MHCC010015812018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.220 OF 2018
IN
SUIT NO.3622 OF 2008
(HIGH COURT SUIT NO.1040 OF 2008)
Ranchod Pandya ...Applicant
(Proposed Plaintiff).
Babibai Moreshwar Patil & Ors. ...Plaintiffs.
V/s.
M/s. Om Enterprises & Ors. ...Defendants.
Appearances:
Ld. Adv. Mr. Gandhi for the plaintiffs.
Ld. Adv. Mr. Samant for the defendant nos.1, 3 and 4.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 25th OCTOBER, 2018
ORDER
1. This is notice of motion taken by plaintiffs to allow him to
continue suit by adding as a plaintiff and to carry out necessary
amendment in plaint.
2. Plaintiffs are owners. They have given Power of Attorney in
favour of defendants and entered into Development Agreement.
Thereafter, the plaintiffs have withdrawn Power of Attorney. Plaintiffs
have cancelled the Power of Attorney and Development Agreement
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dated 09.03.1989. However, the defendants on the basis of Power of
Attorney executed Conveyance Deed on behalf of plaintiff in favour of
defendants so, plaintiffs have filed suit for declaration that the
Conveyance Deed dated 05.06.2007 signed and executed by the
defendants in their own favour is null and void and not binding on
plaintiff in respect of property bearing Survey No.65, Hissa No.9, C.T.S.
No.1958 situated at Village Eksar, Borivali (West), Mumbai 92.
3. Pending the suit original plaintiffs have assigned their rights in
favour of Ranchod Pandya by Registered Deed dated 26.10.2009.
4. Plaintiffs contention is that after filing of the suit, the plaintiffs
have executed Registered Conveyance Deed dated 26.10.2009 for
considerations of Rs.51,00,000/ in his favour. In view of this
Conveyance Deed he got interest in the suit property and he is entitled
to proceed the above suit against the defendants by substituting /
replacing himself as a plaintiff. In view of this, cause title of the plaint
needs to be amended by substituting /replacing his name as a sole
plaintiff in place of the original plaintiffs. He also seeks amendment as
per schedule and he is ready to pay court fees on the basis of valuation
of Conveyance Deed dated 26.10.2009. He also seeks to amend the
relief clause b(i) that order declaring the Conveyance Deed dated
26.10.2009 executed by the original plaintiffs in his favour be declared
as legally valid, subsisting, binding and superseding over all earlier
illegal and invalid conveyance and Power of Attorney including the
illegal and invalid conveyance dated 05.06.2007.
5. Defendant nos.1, 3 and 4 by filing say objected the chamber
summons. Their contention is that applicant in present chamber
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summons is not having independent right to move this present chamber
summons for the purpose of amendment i.e., substituting himself in
place of plaintiffs as well as to amend the plaint as per schedule
attached to affidavit in support of chamber summons. It further
contended that present chamber summons is not moved by the plaintiffs
therefore, applicant cannot sought the propose amendment by replacing
the original plaintiffs with himself. It further contended that presence
of applicant is not necessary to decide the real dispute between the
parties therefore, present chamber summons is required to be
dismissed.
6. It further contended that applicant has suppressed the material
facts that the plaintiffs in present matter had taken out Chamber
Summons No.97 of 2012 for impleading present applicant as a party to
the present suit and said chamber summons was rejected by this Court
on 06.03.2013 so, there is bar of resjudicata for taking out present
chamber summons. It further contended that in the said order the
Hon'ble Court has already observed that presence of applicant herein is
not at all necessary to decide the real dispute of controversy between
the plaintiffs and defendants. It further contended that by way of
chamber summons the applicant wants to establish his alleged status
and illegality of Conveyance Deed dated 26.10.2009 alleged to be
executed by plaintiff in his favour. Propose amendment will change
nature of the suit and the applicant cannot hesitate his status or claim
by replacing him in place of plaintiffs. It further contended that the
applicant suppressed material facts with intention to play fraud upon
the Court.
7. The applicant filed rejoinder. His contention is that as per Order
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22 Rule (10) Sub rule (1) of the Code of Civil Procedure, he can file
chamber summons thereby seeking leave to continue the suit by
stepping into the shoes of the original plaintiffs who during the
pendency of the suit assigned, created and devolved their right, title
and interest in respect of suit property in his favour. He denied that he
suppressed the material facts and approached with fraudulent intention.
He denied that principles of resjudicata, creates bar against above
chamber summons.
8. I have heard both the parties.
9. Advocate for applicant submitted that plaintiffs have filed suit for
declaration that Conveyance dated 05.06.2007 is signed and executed
by the defendants in their own favour is null, void, abinitio and not
binding upon the plaintiffs. Subsequently, plaintiffs have executed
Conveyance Deed of suit property in favour of applicant on 26.10.2009.
He submitted that as per Order 22 Rule (10) sub rule (1) of the Code of
Civil Procedure, in case of an assignment, creation or devolution of any
interest during the pendency of a suit the suit may be leave of the court
be continued by or against the person to or upon whom such interest
has come or devolved. In the present case, as per Conveyance Deed
dated 26.10.2009 interest in the suit property is assigned in favour of
applicant so, he is entitled to substitute him in place of original
plaintiffs and to continue the suit by taking leave of the Court. He
further submitted that earlier chamber summons was taken by plaintiffs
for adding present applicant as a necessary party. However, that
chamber summons was dismissed, by observing that the present
applicant who was respondent is not necessary party. It also observed
that when the respondent i.e., present applicant not came before the
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Court for impleading him as a party to the suit, on the application of
plaintiff he cannot impleaded in the suit as a defendant in as much as
respondent is not a necessary party for the purpose of deciding the
controversy between the plaintiff and defendants so the order of that
chamber summons is not binding on present applicant and it is not
barred by resjudicata. He relied upon chandra Bai V/s. Khandalwal
Vipra Vidyalaya Samiti and Ors., 2016(3)SCC 534 equivalent
MANU/SC/0383/2016, Goverment of Orissa V/s. Ashok Transport
Agency, 2002 (4) SCC 3999. Sri Jagannath Mahaprabhu V/s. Pravat
Chandra Chatterjee and Ors., 1991 CJ (Ori) 171, High Court of Orissa,
Thomson Press (India) Ltd., V/s. Nanak Builders and Investors P. Ltd.,
MANU/SC/0192/2013 equivalent AIR 2013 SC 2389. He submitted
that in Government of Orissa V/s. Ashok Transport Agency, application
was filed in execution petitioner for substitution. The Orissa High Court
in para no.9 are as under :
As against the Rule 10 only provides for continuing the suit
where there is an assignment, creation or devolution of any
interest during the pendency of the suit. It is an enabling
provision to the affected party to continue the suit by or
against the person to or upon whom such interest has come or
devolved. Normally, if the plaintiffs interest has come to or
devolved, say in Y, then Y has to approach the court for
enabling him to continue the suit with the leave of the court.
This provision also applies at the appellate stage. Further,
defendant would not approach the court by filing an
application that leave may be granted to continue the suit
against him. It is for the the plaintiff to approach the court
when there is assignment, creation or devolution of interest
during the pendency of the suit and court may permit to
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continue the said suit against the person upon whom such
interest has come or devolved. That means, the party who
wants to continue the suit or other proceeding has to apply to
the court to grant leave to continue suit or proceedings in
such cases. To expect the party in whose favour an
assignment, creation or devolution of interest has taken place
during the pendency of the suit, to file application for
continuing the suit against him, would be totally
unreasonable. Such party may not be knowing about such
proceedings may be that, in cases where principle of his
pendente is applicable, such party may apply to the court for
grant of leave to continue the proceeding. Similarly, if the
decree is passed against the defendant before assignment,
creation or devolution of interest, such party with the leave of
court can continue the appeal or file such appeal. It is also
true that Rule 10 nowhere provides that suit would abate in
cases of assignment creation or devolution of any interest.
The apparent reason may be that suit would not abate against
the original defendant and court may pass a decree against
such defendant.
10. Dhurandhar Prasad Singh V/s. Jai Prakash University and Ors.,
question was arises whether application under Order 22 Rule 10
seeking leave of the Court is required under law to be filed by that
person alone upon whom interest has devolved during the pendency of
the suit by nobody else ? It is observed that under Order 22 Rule 10 of
Code of Civil Procedure, when there has been a devolution of interest
during the pendency of a suit, the suit may, be leave of the Court, be
continued by or against persons upon whom such interest has devolved
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and this entitles, the person who has acquired an interest in the subject
matter of the litigation by an assignment or creation or devolution of
interest pendente lite or suitor or any other person interested, to apply
to the Court for leave to continue the suit. But it does not follow that it
is obligatory upon them to do so. If a party does not ask for leave, he
takes the obvious risk that the suit may not be properly conducted by
the plaintiff on record, and yet, as pointed out by their Lordships of the
Judicial Committee in Moti Lal V/s. KarabudDin, he will be bound by
the result of the litigation even though he is not represented at the
hearing unless it is shown that the litigation was not properly conducted
by the original party or he colluded with the adversary. It is also pain
that if the person who has acquired an interest by devolution, obtains
leave to carry on the suit, the suit in his hands is not a new suit.
11. Relying on the above authority, Advocate for plaintiff submitted
that if the present applicant is not substituted as a plaintiff, he will
suffer great hardship and loss because his original plaintiffs have not
taken care of the suit or hand in gloves with defendant then the right of
present applicant is affected so, leave granted to him to add as a
plaintiff.
12. Advocate for defendants submitted that earlier chamber
summons, which was taken by plaintiffs for dismissing so, present
applicant cannot take another chamber summons, which will barred
principles of resjudicata. He submitted that the applicant purchased th
property during the pendency of suit, then, it will hit by less pendency
and he will abide by the decision of the suit so, his presence is not
required for deciding the dispute so, chamber summons be dismissed.
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13. I have gone through the original plaint, pleadings in chamber
summons as well as earlier chamber summons. The plaintiffs have
cancelled the Power of Attorney and development agreement executed
in favour of defendants and plaintiffs challenging the Conveyance Deed
dated 05.06.2007 executed by the defendants on behalf of plaintiffs in
favour of defendants. It is the fact that during pendency of suit on
26.10.2009 plaintiffs have executed Conveyance Deed in favour of
present applicant. I find that as per Order 22 Rule 10 of Code of Civil
Procedure, in case of assignment, creation or devolution of any interest
during the pendency of the suit the suit may be leave of the court be
continued by or against the person to or upon whom such interest has
come or devolved. Order 22 Rule 10 of Code of Civil Procedure,
enabling provision to the affected party to continue the suit by or
against the person to or upon whom such interest has come or devolved
so, in the present case as the interest is assigned by conveyance deed in
favour of present applicant by plaintiff then, present applicant has right
to continue the suit, if he not allowed to continue the suit and the
plaintiffs who have loss their interest not continued suit or gloves in the
hands of the defendants then it certainly cause the harm and loss to the
present applicant. Therefore, I find that it is a fit case to allow the
present applicant to continue the suit by substituting him as a plaintiff
jointly with other plaintiffs.
14. So far as, earlier order in Chamber Summons No.97 of 2012 is
concerned, that chamber summons was taken by plaintiff under Order
1 Rule 10 of Code of Civil Procedure, for impleading the present
applicant as a defendant as a necessary party. In that order, my
predecessor has observed when the respondent / present applicant has
not came before the Court for impleding him as a party to the suit, on
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the application of plaintiff, he cannot be impleaded in the suit as a
defendant. I find even though that order is not challenged by the
plaintiffs, present applicant have independent right under Order 22
Rule 10 of Code of Civil Procedure to substitute him as a plaintiff as
rights are assigned or created in his favour. Therefore, I find that the
order of earlier chamber summons will not hit to present chamber
summons and principles of resjudicata will not be applicable. Once the
present applicant is substituted as a plaintiff then, he is entitled to seek
the amendment therefore, I find that this chamber summons is to be
allowed. With this, I prayed to pass the following order:
O R D E R
1. Chamber Summons No.220 of 2018 is allowed.
2. The applicant Ranchod Pandya, is permitted to join as a plaintiff
alongwith original plaintiffs and to continue the suit. He is allowed to
carry out the amendment as per the schedule on payment of necessary
court fees on the basis of his registered Conveyance Deed dated
26.10.2009.
3. Amendment should carry out within eight days.
4. Chamber Summons No.220 of 2018 stands disposed of
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 25/10/2018 City Civil Court, Gr. MUMBAI
Dictated on : 25/10/2018
Transcribed on : 25/10/2018
Signed on : 25/10/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
26.10.2018 4.16 p.m. ARUN ANNAMALAI MUDALIYAR
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Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
25.10.2018
JUDGEMENT /ORDER signed by
P.O. on
25.10.2018
JUDGEMENT /ORDER uploaded
on
26.10.2018
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