Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch.S. 281-2020 in Suit no. 1826-2014
CNRNO.MHCC01-001858-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS No. 281 OF 2020
IN
L.C. SUIT NO. 1826 OF 2014
M/s. Sambhav Enterprises & Anr. ].....Plaintiffs
Versus
Vir Hanuman Co-operative Housing Society Ltd.
(Proposed) & Ors. ]...Defendants
Coram : Shri Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 11th March, 2020
Appearance:-
Ld. Adv. Mr. Omkar Kulkarni for plaintiffs.
Ld. Adv. Mr. Tawakule with Adv. Mrs. Rawade for defendant/MCGM.
Ld. Adv. Mr. Bodhanwalla and Co.Adv. Rajesh Dubey, Adv. Mr. Dalal for
defendant Nos. 2,4,9,10,14 to 24
Ld. Adv. Mr. Karan Singh for defendant Nos. 26,27
Ld. Adv. Mr. Raje for defendant No. 3.
Ld. Adv. Mr. Thorat for defendant No. 29.
Ld. Adv. Mr. Nilesh Pandey for defendant Nos. 25.
ORDER
1. Heard learned Advocate for the plaintiffs, Advocate for
defendants and learned Advocate for the defendant corporation.
2. The plaintiffs by this Chamber Summons seeks permission to
withdraw the suit against the defendant Nos. 6, 9, 25, 26 and 27.
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2 Ch.S. 281-2020 in Suit no. 1826-2014
3. The plaintiff had instituted the suit with prayer for injunction
restraining the defendant from dealing with or negotiating with any
third party or obstructing the plaintiffs in any manner from
redevelopment of the suit property or in any manner and or terminating
the Development Agreement dated 26.09.2011 as well as Supplemental
Development Agreement dated 12.04.2014.
It is the case of the plaintiff that dispute is settled between
the plaintiff and defendants. The plaintiff and the defendant had
signed the Consent Terms. It is stated that the defendant had started
opposing the Consent Terms. It is contended that due to opposition of
the defendant the consent terms could not be materialized. It is stated
that therefore the plaintiff could not dispose the suit amicably. It is
stated that defendants have independent remedy for their rights in
respect of consent terms. It is stated that plaintiff has prerogative to
proceed against those it wants to proceed. It is contended that
defendant have no right to oppose the claim.
4. The defendant, tenants /occupants has opposed the chamber
summons contending their presence is necessary to decide the suit. It is
contended that the plaintiff cannot initially withdraw the suit.
5. The defendant corporation had objected the chamber summons.
It is contended that if the suit is withdrawn, it would prejudice
the defendants.
6. The plaintiff had relied upon the judgment of Hon’ble Supreme
Court in case of Anil Kumar Singh V/s Vijay Pal Singh & Ors.
(2018) 12 Supreme Court Cases 584, in paragraph No. 23, 24 it has
held as follows.
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3 Ch.S. 281-2020 in Suit no. 1826-2014
“23. In our considered opinion, when the plaintiff files an
application under Order 23 Rule 1 and prays for permission to
withdraw the suit, whether in full or part, he is always at liberty to do
so and in such case, the defendant has no right to raise any objection to
such prayer being made by the plaintiff except to ask for payment of
costs to him by the plaintiff as provided in sub-rule (4).
24. The reason is that while making a prayer to withdraw the suit
under Rule 1(1), the plaintiff does not ask for any leave to file a fresh
suit on the same subject matter. A mere withdrawal of the suit without
asking for anything more can, therefore, be always permitted. In other
words, the defendant has no right to compel the plaintiff to prosecute
the suit by opposing the withdrawal of suit sought by the plaintiff
except to claim the costs for filing a suit against him.’’
7. The learned Advocate also relied upon the judgment in case of
Anil Dinmani Shankar Joshi & Anr. Vs. Chief Officer, Panvel Municipal
Council, Panvel & Anr. AIR 2003 Bombay 238, in paragraph No. 4, it is
observed as follows:
“4. In my opinion, what is said by the Apex Court in respect of
an application applies with equal force to the suit. Every plaintiff has
an unconditional right to withdraw his suit unconditionally. The
withdrawal would be complete as soon as the plaintiff files a purshis of
withdrawal. The Court may pass a formal order recording the
withdrawal and also make an order regarding costs, but the withdrawal
is not dependent on the order of the Court. This could apply also where
the plaintiff seeks withdrawal of the suit against one or more of the
defendants and the withdrawal would be complete against those
defendants as soon as the plaintiff files an application/purshis for
withdrawal. The Court may then consider whether the suit survives
against the order defendants against whom suit is not withdrawn. If it
comes to the conclusion that the defendant or defendants against whom
the suit is withdrawn was or were necessary parties, the Court would
then be entitled to dismiss the suit against all on the ground of non-
joinder of the necessary parties. But the Court cannot refuse to allow
the withdrawal on the ground that the person against whom the suit is
sought to be withdrawn is a necessary party.’’
8. The learned Advocate for the defendant No. 3 Mr. Raje relied
upon the judgment in case K.S. Bhoopathy & Ors. V/s Kokila & Ors.
2000)5 Supreme Court Cases 458, in paragraph No. 13 it has held as
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4 Ch.S. 281-2020 in Suit no. 1826-2014
follows.
“13. The provision in Order XXIII Rule 1 CPC is an exception to
the common law principle of non-suit. Therefore on principle an
application by a plaintiff under sub-rule (3) cannot be treated on a par
with an application by him in exercise of the absolute liberty given to
him under sub-rule (1). In the former it is actually a prayer for
concession from the court after satisfying the court regarding existence
of the circumstances justifying the grant of such concession. No doubt,
the grant of leave envisaged in sub-rule (3) of Rule I is at the discretion
of the court but such discretion is to be exercised by the court with
caution and circumspection. The legislative policy in the matter of
exercise of discretion is clear from the provisions of sub-rule (3) in
which two alternatives are provided; first where the court is satisfied
that a suit must fail by reason of some formal defect, and the other
where the court is satisfied that there are sufficient grounds for allowing
the plaintiff to institute a fresh suit for the subject-matter a suit or part
of a claim. Clause (b) of sub-rule (3) contains the mandate to the court
that it must be satisfied about the sufficiency of the grounds for
allowing the plaintiff to institute a fresh suit for the same claim or part
of the claim on the same cause of action. The court is to discharge the
duty mandate under the provision of the Code on taking into
consideration all relevant aspects of the matter including the desirability
of permitting the party to start a fresh round of litigation on the same
cause of action. This becomes all the more important in a case where
the application under Order XXIII Rule 1 is filed by the plaintiff at the
stage of appeal. Grant of leave in such a case would result in the
unsuccessful plaintiff to avoid the decree or decrees against him and
seek a fresh adjudication of the controversy on a clean slate. It may
also result in the contesting defendant losing the advantage of
adjudication of the dispute by the court or courts below. Grant of
permission for withdrawal of a suit with leave to file a fresh suit may
also result in annulment of a right vested in the defendant or even a
third party. The appellate/second appellate court should apply its mind
to the case with a view to ensure strict compliance with the conditions
prescribed in Order XXIII Rule 1 (3) CPC for exercise of the
discretionary power in permitting the withdrawal of the suit with leave
to file a fresh suit on the same cause of action. Yet another reason in
support of this view is that withdrawal of a suit at the appellate/second
appellate stage results in wastage of public time of courts which is of
considerable importance in the present time in view of large
accumulation of cases in lower courts and inordinate delay in disposal
of the cases.”
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9. It is contended by the defendants that the plaintiff had right in
the suit property. The defendants are the tenants/occupants of Plot
bearing No. 2/481.
10. It is the own contention of the plaintiff that plaintiff and
defendants have signed the consent terms. However, the defendant
started opposing the consent terms and therefore the consent terms
could not be materialized. It is the case of the plaintiff that if the
defendants are aggrieved with the consent terms they have their own
remedy to prosecute. The plaintiff accordingly had sought to withdraw
the suit against these defendants mentioned in the chamber summons.
11. At the cost of repetition, it needs to be mentioned that the relief
claimed in the suit by the plaintiff are simplictory injunction restraining
the defendant mentioned in the present chamber summons and other
defendants from dealing with or negotiating with any third party or
obstructing the plaintiffs in any manner from redevelopment of the suit
property or in any manner and or terminating the Development
Agreement dated 26.09.2011 as well as Supplemental Development
Agreement dated 12.04.2014.
12. It needs to be mentioned that the plaintiffs are the
tenant/occupants of the suit premises. The plaintiff is seeking to
withdrawal of the suit against the defendants mentioned in the present
chamber summons. The dispute involved is in relation to the
redevelopment of the structures which are in possession of various
defendants. The plaintiff seeks to withdraw the suit against few
defendants. The plaintiff had not sought liberty to institute fresh suit. It
is abatement to grievance of the plaintiff in the suit against the
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6 Ch.S. 281-2020 in Suit no. 1826-2014
defendants. The controversy involved in the suit is regarding with the
redevelopment agreement. The suit is for simplicitory injunction.
It would be appropriate to refer to the Order I Rule 10 (2) of the
Code of Civil Procedure:
“10(2) Court may strike out or add parties: The Court may
at any stage of the proceedings, either upon or without the application
of either party, and on such terms as may appear to the Court to be just,
order that the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person who ought
to have been joined, whether as plaintiff or defendant or whose
presence before the Court may be necessary in order to enable Court
effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.”
The controversy involved relates to the rights of defendants as
they are the occupants and the same property is sought to be
redeveloped by the plaintiff. The presence of the defendant mentioned
in the chambers summons i.e. defendant Nos. 6, 9, 25, 26 and 27 is
necessary to determine the controversy involved in the suit. The
withdrawal of the suit would adversely affect to rights of the defendant
Nos. 6, 9,25,26,27.
13. In order to enable the court effectually and completely to
adjudicate upon and settle all the questions involved in the suit, the
presence of all the defendants is necessary. The Court is empowered to
add persons is necessary to adjudicate the controversy in the suit under
Order I Rule 10. Order XXXIII Rule 1-A permits the Court to transpose
the defendant in place of plaintiff. Under Order I Rule 10 the same
analogy can be used in the instant case. Under Order I Rule 1, the
Court can add parties whose presence is necessary to decide the suit
finally and eventually.
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The presence of the defendant sought to deleted by withdrawal is
necessary for the declaration of the suit.
The chamber summons, therefore, need not be considered. In the
result, following order is passed.
ORDER
Chamber Summons No. 281/2020 is dismissed.
(Sanjay N. Yadav)
Judge,
Date: 11.03.2020 City Civil Court, Mumbai.
Dictated on : 11.03.2020
Transcribed on : 16.03.2020
Signed by HHJ on : 19.03.2020
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8 Ch.S. 281-2020 in Suit no. 1826-2014
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.05.2020 at 05.12 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. S. N. Yadav
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
11.03.2020
JUDGMENT/ORDER signed by
P.O. on
19.03.2020
JUDGMENT/ORDER uploaded
on
21.05.2020
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