Final Order 1

Order Details: Chamber summons
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MHCC010016332020
Presented on : 07-02-2020
Registered on : 07-02-2020
Decided on : 03-01-2024
Duration : 3 years, 10 months, 25 days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 246 OF 2020
IN
S.C. SUIT NO. 2562 OF 2019
(C.N.R.No.MHCC01-001633-2020)
Amrutlal Shambulal Vora ]
and 3 Anrs. ] .. Plaintiffs.
V/s.
The Maharashtra Housing and ]
Area Development Authority and Anr.] ..Defendants
Advocate Ms. Jatin Sheth for the plaintiff.
Advocate Mr. A. M. Vernekar for applicant.
Advocate Ms. Mangal Kadam for defendant No.1/MHADA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 3rd JANUARY 2024
ORAL ORDER
Applicant has moved present Chamber Summons seeking
his impleadment as defendant No.3 in Suit No.2562/2019 and in Notice
of Motion.
2. In short, it is contention of the applicant that plaintiff No.1
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is her father and plaintiff No.2 is her brother. Applicant’s maternal
grand-father Shri. Padamshi Bhanji Vora (since deceased) was the
tenant of the entire room No.127, Palan Sojpal, ‘B’ wing, of which Shri
Kishor Shah are the landlords/owners. Late Padamshi Vora was married
to Mrs. Zaverben and they had only one daughter by name Lilavati who
is mother of the applicant. In the year 1955 or thereabout Lilavati
married Amrutlal Vora, the plaintiff No.1 and started living at
Gadpadhar, Gujarat where applicant was born to them on 16.02.1959.
When applicant was 2 years old, she was left by her parents with her
maternal grand-parents and since then applicant was look-after and
brought up by her maternal grand-father and grand-mother and resided
with them in the entire room No.127.
3. That, sometime thereafter, the parents of the applicant
alongwith applicant’s other siblings came to Mumbai and at their
request, applicant’s maternal grand-father allowed them to temporary
stay in the backside portion of room No.127 and applicant’s grand-
father, grand-mother and applicant resided in room No.127 (front side).
Soon thereafter the applicant’s grand-father asked the applicant’s parent
to leave the backside portion of room NO.127 due to their strained
relations, but they refused to vacate the same. Applicant’s grand-father
Padamshi Vora expired sometime in the year 1977 and applicant and
her grand-mother continued to reside in room No.127 (front side). Even
after marriage of applicant in 1991, she and her husband continued to
stay in room No.127 (front side) with maternal grand-mother. In the
year 2002, applicant’s grand-mother expired in the said room No.127
(front side) and applicant and her husband continued to reside in the
said room No.127 till possession of the same was handed over to
defendant No.2 on 07.01.2019 for re-development of the building
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undertaken by them.
4. Pursuant to the re-development agreement, defendant No.1
issued letter dated 15.05.2014 addressed to all tenants/occupants of
Palan Sojpal building and asked to submit documents and to confirm
irrevocable consent, if any. Accordingly, plaintiff submitted all original
documents evidencing her occupancy of room No.127 (front side) on
the 3rd floor of Palan Sojpal, ‘B’ wing and gave her irrevocable consent
dated 18.03.2015 for the re-development. The certified
tenants/occupant’s list in respect of room No.127 was prepared by
concerned Executive Engineer M.B.R. & R. Board which was objected by
the landlords on the ground that separate occupancy shown in respect
of room No.127 (front and back side) is not correct and that both these
occupancies of room No.127 should be clubbed. Subsequently hearing
was conducted by Chief Officer, M.B.R. & R. Board, Mumbai and
subsequent thereto, concerned engineers once again visited applicant’s
residence and re-verified the documents and submitted report stating
that room No.127 (front side)) and room No. 127 (back side) are
accepted as single tenement only and that plaintiffs are accepted as
tenants and applicants are accepted as a co-occupants of room No.127.
5. At that time applicant learnt for the first time that plaintiffs
have got the tenancy of the said room No.127 transferred in their name
behind applicant’s back. The tenancy in respect of said room No.127 all
along stood in the name of Late Padamshi Vora and at the time of his
death, the applicant was residing in the said room No.127 (front side)
as a member of the deceased tenant’s family member alongwith her
maternal grand-mother. The plaintiff therefore were not entitled to get
the tenancy in respect of room No.127 transferred in their names
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without her consent. Further, it is contention of the applicant that she
was given notice to vacate the room by defendant No.2 and pursuant to
the said letter applicant vacated room No.127 (front side) on
07.01.2019 and at that time, defendant No.2 under cover of his letter
paid to the applicant Rs.3,24,000/- towards the temporary alternate
accommodation allowance for one year, Rs.3,24,000/- towards
temporary alternate accommodation allowance for second year,
Rs.72,000/- being hardship allowance/corpus and Rs.32,000/- towards
100% shifting charges by 4 different cheques. Further, as against the
carpet area certified by defendant No.1 in respect of room No.127
(front side) defendant No.2 agreed to give to the applicant a flat as
permanent alternate accommodation admeasuring 250 Sq. feet which
was accepted by the applicant. The applicant is the certified co-
occupant of room No.127 and thus, vacated room No.127 (front side)
and handed over the possession of the same to defendant No.2 and
thus, entitled to permanent alternate accommodation admeasuring 250
Sq. feet as agreed by defendant No.2 in lieu thereof and plaintiffs are
not entitled to permanent alternate accommodation in respect of entire
room No.127. The plaintiffs are entitled to permanent alternate
accommodation agreement only in respect of room No.127 (back side)
which was not in their occupation. In any event, plaintiffs and applicant
having been certified by defendant No.1 as co-occupants of room
No.127, permanent alternate accommodation agreement for premises in
new building in lieu of room No.127 is required to be signed with
applicant also and not only in favour of plaintiffs. In such
circumstances, applicant is necessary party to the above suit and any
order passed in the above suit and Notice of Motion without applicant
being added as party defendant and without hearing the applicant
would greatly prejudice her rights in respect of said room No.127.
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Hence, applicant prayed for allowing her to intervene in the present suit
and Notice of Motion and consequently prayed for allowing Chamber
Summons.
6. Plaintiff filed their affidavit in reply to the Chamber
Summons and strongly opposed the same. It is submitted that the
plaintiffs in the present suit being deminus litis are entitled to choose
the persons against whom they wish to litigate and can not be
compelled to sue a person against whom they do not seek any relief.
The plaintiffs have filed present suit inter-alia for directions to the
defendant No.2 to enter into an agreement for grant of permanent
alternate accommodation. The present suit is filed on the basis that
plaintiff No.1 and deceased plaintiff No.2 were the tenants of the old
premises. The same is recognized by the Memorandum of
Understanding dated 09.04.2014 executed by the predecessor in the
title of defendant No.2. Defendant No.2 has clearly, unambiguously and
unequivocally admitted that plaintiff No.1 and deceased plaintiff No.2
are the sole certified tenants. The said letter dated 17.12.2018 has
attained finality and is binding on the parties to the present suit and the
applicant. Just because the applicant was staying with plaintiff No.1 at
some point of time in the old premises, she is not vested with any rights
to the old premises or has any independent right except right as a
member of the family. The applicant’s alleged right as an occupant of
the old premises shall not affect the plaintiff’s right, title and interest as
the certified tenants of the old premises. The applicant is neither a
proper nor necessary party and she is not required for determining real
controversy in the matter. Applicant’s intervention/impleadment, if
allowed, in the present suit will change the nature of the present suit.
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7. Further, defendant No.2 by it’s order dated 17.12.2018 has
confirmed room No.127 as single tenement and denied what is alleged
by the applicant. The applicant as a co-occupant is not entitled to
alleged permanent alternate accommodation in lieu of room No.127 as
alleged. Further, the tenancy was rightly transferred in the names of the
plaintiffs and same is now certified by defendant No.1 as well. The
alleged agreement between defendant No.2 and applicant is
mischievous as no such agreement has been executed between the
applicant and defendant No.2 and the alleged agreement is not in
accordance with law and is bad-in-law and is not binding on the
plaintiff. The applicant is not entitled to any permanent alternate
accommodation in lieu of room No.127. The applicant has moved
present Chamber Summons only to harass the plaintiff No.1 who is
more than 86 years old and plaintiff No.2(a) who is housewife with
dependent children. The Chamber Summons is devoid of merits and
same be dismissed with heavy exemplary costs.
8. Perused Chamber Summons, Affidavit in support of
Chamber Summons as well as Affidavit-in-reply filed by the plaintiff.
Heard the learned advocates for both the sides at length. The following
points arise for my determination and I have recorded my findings to
them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1. Whether the applicant has made out case
for her impleadment as defendant No.3 in
the suit?
In the
Affirmative
2. What order? As per the final order
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R E A S O N S
AS TO POINT NO.1 :
9. It is argued on behalf of applicant that plaintiff has
suppressed all the material facts from the Court and is claiming the
order of allotment of permanent alternate accommodation only in their
name behind the back of the applicant who is the daughter of plaintiff
No.1 and who has been residing in the room No.127 (front side).
Plaintiffs have not made applicant party despite of knowing that
applicant is co-occupant and is certified by MHADA. The applicant has
right, interest in the suit property and she is necessary and proper party
to the suit. As against this, it is argued on behalf of the plaintiff that
plaintiff has filed present suit for Specific Performance Contract on the
basis of Memorandum of Understanding wherein there are only two
parties. In the suit for Specific Performance Contract only parties to the
contract are the necessary parties. Stranger to the documents is neither
necessary nor proper party. Applicant can file separate suit claiming her
right, if any, in the suit property but she can not claim any right in the
present matter. Applicant can not agitate her right in the plaintiffs suit.
Plaintiff is dominus litis of his suit and he can not be compelled to add
applicant as party in the suit against his wish. In support of his
contention, advocate for applicant relied upon following authorities :
i. Kasturi vs. Iyyamperumal and Ors., (2005) 6 Supreme
Court Cases 733.
ii. Gurmit Singh Bhatia vs. Kiran Kant Robinson and Ors.
(2020) 13 Supreme Court Cases 733.
iii. Ghulamnabi B. Khan vs. Bombay Housing & Area
Development Board & Ors., reported in First Appeal
No.682/1996 decided on 7/8.01.1998.
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iv. Prabhakar Jagannath Masurkar vs. Maharashtra Housing
and Area Development Authority & Ors. In Writ Petition (L)
No.453/2022.
10. In the case of Kasturi (supra) Hon’ble Apex Court decided
the question whether in a suit for Specific Performance of Contract for
sale of property instituted by purchaser against the vendor, the stranger
or third party to the contract claiming to have an independent title and
possession over the contracted property is entitled to be added as
party/defendant in the said suit. It was held that in suit for Specific
performance of Contract necessary parties to the contract are parties
claiming under them or a person who had purchased the contracted
property from the vendor with or without notice of the contract.
11. I have gone through the above authority. It is pertinent to
note that the facts of the present case are distinguishing from the facts
of case in hand. Hence, said authority is not applicable to the present
case.
12. From the rival contentions, it appears that relationship
between the parties is not disputed. Further, from the documents
produced on record, it can be seen that applicant as well as the
plaintiffs have been residing in room No.127. It is contention of the
applicant that she has been residing in room No.127 (front side) and
plaintiffs have been residing in room No.127 (back side). Said fact is
not disputed by the plaintiffs. It is also not disputed by the plaintiffs
that applicant has MHADA certified occupant of room No.127 (front
side). Applicant is also submitted her irrevocable consent for re-
development of property. Further, it can be seen from the documents
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that the plaintiffs are accepted as tenants and the applicant is accepted
as co-occupant for room No.127 by letter of M.B.R. & R Board dated
17.12.2018. Further, from the documents produced on record by the
applicant, it can be seen that, she has handed over possession of said
room No.127 which is accepted by defendant No.2 and defendant No.2
has issued four cheques of certain amounts as claimed by applicant
towards temporary alternate accommodation allowances and other
charges. Thus, it can be seen that applicant is certified occupant of room
No.127 by MHADA. The plaintiffs have suppressed all the facts in the
plaint and they have filed present suit seeking execution of agreement
for grant of permanent alternate accommodation in lieu of room No.127
behind the back of the applicant. From the documents placed on record
and from the facts of the case, it can be gathered that applicant is a
necessary and proper party to the suit and no effective decree can be
passed in absence of the applicant. Though plaintiffs claimed that being
dominus litis plaintiffs are entitled to choose a person against whom
they wish to litigate and they can not be compelled to sue a person
against whom they do not seek any relief, considering the peculiar facts
of the case, the presence of applicant is necessary for adjudicating the
rights of the parties finally. Though, the plaintiffs claimed that applicant
can file separate suit for claiming her right, it would only cause
multiplicity of proceedings. Thus, I hold that applicant is necessary
party to the suit. For all the above reasons, I answer point No.1 in the
affirmative.
AS TO POINT NO.2 :
13. As point No.1 is answered in affirmative, I hold that the
Chamber Summons deserves to be allowed. In the result, I proceed to
pass the following order:-
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ORDER
1. Chamber Summons No. 246 of 2020 is hereby made
absolute.
2. The plaintiffs are hereby directed to add the applicant as a
defendant No.3 in the suit and also in the Notice of Motion
and applicant is permitted to file her written statement to
the plaint and affidavit in reply to Notice of Motion.
3. The plaintiffs to carry out necessary amendment within 14
days and to supply copies of amended plaint on record as
well as to all the parties.
4. The plaintiffs to supply copies of Plaint, Notice of Motion
and documents to the applicant.
5. Chamber Summons No. 246 of 2020 stands disposed of
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 03/01/2024 Gr. Bombay.
Dictated on : 03/01/2024
Transcribed on : 03/01/2024
Signed on : 04/01/2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04/01/2024 At 04.50 P.M. Ms. Manisha D. Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
03.01.2024
Judgment/Order signed by P.O. on 04.01.2024
Judgment/Order uploaded on 04.01.2024
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