Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.23718
CNR No. MHCC010017392018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.237 OF 2018
IN
SUIT NO.8553 OF 1992
(HIGH COURT SUIT NO.554 OF 1992)
Vishal Land Development Corporation ...Plaintiff
V/s.
Subhash Anant Bhoir & Ors. ...Defendants.
Appearances:
Ld. Adv Vishwajeet Kapse for plaintiff.
Ld. Adv Sagar Talekar for defendant nos.4(g) and for defendant
nos.4(b) to 4(f) and 4(h).
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 03rd DECEMBER, 2018
ORDER
1. This is chamber summons taken by plaintiff to carry out
amendment as per schedule.
2. Plaintiff's contention is that plaintiff filed suit for specific
performance agreement dated 13.11.1981 entered into between
original defendant no.1 and defendant no.2 as vendors and the
plaintiffs as purchasers in respect of suit property. It further contended
that pending the hearing and final disposal of the suit, the parties viz.
Plaintiff, defendant no.1(C) to 1(F) and defendant no.2 have resolved
their dispute and it is agreed that they shall jointly transfer all their
-- 1 of 5 --
2 CS No.23718
respective share, right, title and interest in the suit property to the
respondent i.e., Ithaca Informatics Pvt. Ltd., and in view of the
agreement mentioned, it is submitted that the respondent is proper and
necessary party to the proceedings so, he may be added as a party
defendant. It further contended that defendant no.1(C) expired on
30.12.2017 without leaving any issues. Defendant nos.1D to 1F are the
legal heirs of deceased defendant no.1C and are already on record
therefore, name of defendant no.1C be deleted from the array of
parties.
3. Defendant no.10, defendant no.4(g) for himself and Constituted
Attorney to defendant nos.4(b) to 4(f) and 4(h). By filing say objected
this chamber summons.
4. Their contention is that chamber summons is not maintainable. It
further contended that the plaintiff in collusion with defendant nos.1(b)
to 1(f) are trying to sell the said suit property to third person without
knowledge to these defendants and these defendants have come to
know that the plaintiffs and defendant no.1(b) to 1(f) have filed
Consent Terms by adding proposed defendant as a defendant no.6. It
further contended that plaintiff does not have any right, title and
interest in the suit property. Since the plaintiff and defendant no.1C to
1F are selling the property which is subject matter of the suit, in which
these defendants have got right, title and interest. The plaintiff who
should establish his right in the suit property. With this, prayed for
dismissal of chamber summons.
5. I have heard both the parties.
-- 2 of 5 --
3 CS No.23718
6. Advocate for plaintiff submitted that respondent is a necessary
party and the defendant no.1(C) to 1(F) and defendant no.2 have
resolved their dispute and it is agreed that they shall jointly transfer all
their respective share, right, title and interest in the suit property to the
respondent i.e., Ithaca Informatics Pvt. Ltd., so, respondent is necessary
party. Advocate for plaintiff submitted that defendant no.1C expired
without leaving any issues and already his legal heirs are on record so,
his name be deleted.
7. Advocate for plaintiff further submitted that plaintiff to file suit is
open for the plaintiff to withdraw the suit against all or any of the
defendants or even abandon his suit or abandon his part of a claim
against such party. Plaintiff cannot be persuaded to litigation against a
party against whom he does not desire to so prosecute. Withdrawal of
suit against defendant no.2 is unconditional is to be granted. Advocate
for plaintiff relied upon 2014(1) LJSOFT 26, Naseem Riyaz Khalifa
V/s. Shafupta Naseem Khalifa & Anr., it has been observed in terms of
Order 23 Rule 1 of Code of Civil Procedure, it is open for the plaintiff to
withdraw the suit against all or any of the defendants or even abandon
his suit or abandon his part of a claim against such party. Plaintiff
cannot persuaded to litigation against a party against whom he does not
desire to prosecute.
8. In the present case, plaintiff's contention is that defendant no.1C
expired without leaving behind any issues and defendant nos.1D to 1F
are legal heirs, who are already on record therefore, plaintiff's wants to
delete the name of defendant no.1C.
9. Advocate for defendant submitted that the plaintiff in collusion
-- 3 of 5 --
4 CS No.23718
with defendant nos.1(b) to 1(f) are trying to sell the said suit property
to third person without knowledge to these defendants and these
defendants have come to know that the plaintiffs and defendant no.1(b)
to 1(f) have filed Consent Terms in the present suit by making Ithaca
Informatics Pvt. Ltd. The plaintiff who should establish his right
cannot file consent terms so, respondent is not necessary party.
10. I find that defendant no.10, defendant no.4(g) for himself and
Constituted Attorney to defendant nos.4(b) to 4(f) and 4(h) admitting
that there was some transaction in between them with Ithaca
Informatics Pvt. Ltd., and if there is transaction during pending of suit
then Ithaca Informatics Pvt. Ltd., is steps in the shoes of defendant
no.1(b) to 1(f) so, respondent is necessary party so, I find that
defendant no.1(C) died without any issues and his legal heirs are
already on record therefore, I find that it is a fit case to allow chamber
summons as prayed for. Accordingly, I proceed to pass the following
order :
O R D E R
1. Chamber Summons No.237 of 2018 is allowed.
2. Plaintiff is permitted to carry out amendment as per schedule
within eight days as suit is old one and furnish amended copy to Court
and remaining defendants.
3. Chamber Summons No.237 of 2018 stands disposed of
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 03/12/2018 City Civil Court, Gr. MUMBAI
Dictated on : 03/12/2018
Transcribed on : 03/12/2018
Signed on : 03/12/2018
-- 4 of 5 --
5 CS No.23718
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
05.12.2018 3.05 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
03.12.2018
JUDGEMENT /ORDER signed by
P.O. on
03.12.2018
JUDGEMENT /ORDER uploaded
on
05.12.2018
-- 5 of 5 --