Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 284 OF 2020
IN
SUIT NO. 778 OF 2009
(C.N.R.No.MHCC01–001861-2020)
Mohanlal Powani & Ors. ] ....Plaintiff.
V/s.
Charity Commissioner & Ors. ] ..Defendants.
And
M/s. Gold Plaza Developers Pvt. Ltd. ] .. Applicants.
Appearance :
Learned Advocate Mr. for Plaintiff.
Learned Advocate Mr. for defendant No.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 7th MARCH, 2024
ORAL ORDER
Applicant has taken out present Chamber Summons for
directing plaintiff to add him as defendant No.8 and for allowing him to
intervene in the matter.
2. It is contention of the applicant that applicant is a company
incorporated under the Companies Act, 1956. The applicants came
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across public notice dated 20.04.2010 issued by Shree Cutchi Lohana
Niwas Grah Trust, published in leading newspaper circulating in
Mumbai city on 21.04.2010 by virtue of which tenders were invited
with regard to the trust property. In pursuance of said public notice, the
applicant participated in auction bid and submitted their tender for
acquisition of the said property and subsequently they were declared as
highest bidder in the auction. The plaintiffs being a trustees of Shree
Cutchi Lohana Niwas Grah Trust had transferred and assigned the said
property to the applicants by virtue of registered Deed of Conveyance
dated 24.05.2010. Since then the applicants are in possession of the
said property. The copy of the registered Deed of Conveyance dated
24.05.2010 is produced on record. The plaintiffs have also executed
registered Power of Attorney in favour of the directors of the applicant
and have also signed and executed declaration of title-cum-indemnity in
respect of the said property. Plaintiff had issued possession letter dated
25.06.2010 stating that they have put applicants in possession. The
tenants of the said property have accepted the applicants as their
landlord and are accordingly paying monthly rent to the applicants.
Thus, applicants have consent of about 110 tenants who have given
their no objection for redevelopment of the said property by this
applicant. The applicants have also initiated the legal proceedings
before Hon’ble Small Causes Court against the tenants for eviction
under Maharashtra Rent Control Act, 1999. The applicants are paying
property tax and maintaining the affairs of the building of the suit
property since 2010. The applicants are the bonafide purchaser of the
suit property from the plaintiffs. Therefore, the applicants are filing
present Chamber Summons for purpose of intervening in the above
matter. By filing the above suit, the plaintiffs have prayed for amending
the scheme. Though, there are various other proceedings pending, but
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the scheme is required to be amended and if, the scheme is not
amended and if the suit is withdrawn, the applicants would directly and
substantially get affected.
3. It is submitted that recently, applicants got the knowledge
that the plaintiff want to withdraw the above suit and cause prejudice
and damage to the applicants. The applicant who would be most
affected party, if the suit is withdrawn and the scheme is not amended.
The intention of the plaintiff to withdraw the suit is not bonafide. The
trust illegally and wrongly filed the counter-claim in the suit filed by the
applicants. Therefore, applicants needs to be heard before passing any
order. Hence, it is prayed for allowing Chamber Summons.
4. Plaintiff filed his affidavit in reply to the Chamber
Summons and opposed the same. It is submitted that applicant is
neither a necessary nor proper party for withdrawal of the suit. The suit
is simplicitor for change of scheme of the trust. The applicant who is not
a beneficiary or in any way connected to the Trust has no direct or legal
interest in the subject matter of the present suit to be added as party
thereto. Even otherwise, as the suit is being withdrawn and this Hon’ble
Court is not deciding any question involved in the proceeding, there is
no question of any right of the applicant getting affected. The applicant
seeks to introduce a new cause of action amounting virtually to the
substitution of a new plaint. The original suit primarily seeks change of
scheme of the trust, whereas the addition of the applicant as a party
defendant is to protect the interest of the applicant in the property
belonging to the trust and conveyed to the applicant for which the
applicant has already initiated appropriate proceedings. If the proposed
amendment is not allowed only, it would introduce a new cause of
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action, but it would also drastically alter the cause of action on the basis
of which the original suit was filed. It is submitted that though, the said
property was sold to the applicant in good faith and in the interest of
the trust, the applicant has failed to comply with its obligations.
However, the controversy arisen between the trust and applicant has no
relevance in the present suit which is sought to be withdrawn by the
plaintiff. The applicant has failed to give even a single instance as to
how the applicant is likely to be affected, if the present suit is allowed
to be withdrawn. The applicant does not fulfill any of the requirements
to be joined as party. Hence, it is prayed that Chamber Summons be
dismissed.
5. Defendant No.3 to 6 also filed their reply to the Chamber
Summons and strongly opposed the same. It is submitted that applicant
is private limited company. It is legal person and not a actual person
under Section 2(10) of the Maharashtra Public Trust Act, 1950. The
phrase ‘person having interest’ can only mean beneficiary or trustee. In
any case, it has to be actual person. The applicant claims to be a
assignee for the trust property. Admittedly, such a person is not covered
in the definition of ‘person having interest’. Section 50 of the Act makes
it clear that only ‘person having interest’ can maintain a suit. The suit is
filed for the amendment of the scheme of the trust. Admittedly, the
applicant is neither beneficiary nor trustee of the trust. It is not going to
to be affected by the orders passed in the present suit. Demonstrably, no
reliefs are claimed against the applicant. It’s presence is not necessary
for adjudication of the suit. Hence, the applicant is neither necessary
nor proper party to the suit. It is submitted that, defendant Nos. 3 and 6
are the beneficiary of the plaintiff’s trust and they are ‘person having
interest’ as defined under Section 2(d)(e) of the Maharashtra Public
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Trust Act, 1950. Applicants are neither beneficiary under Section 2(a)
nor the trustees of the trust. There are no reliefs prayed for against the
applicant. The applicants are not ‘person having interest’ under Section
2(10) of the Maharashtra Pubic Trust Act, 1950 to be added as a party
in the present suit. Hence, it is submitted that Chamber Summons be
dismissed.
6. Perused Chamber Summons, affidavit in support of
Chamber Summons as well as reply filed by defendant No.1 and
defendant Nos.3 to 6. 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 applicants are entitled to be added
as defendant No.8 in the suit as prayed?
In the
negative.
2. What order? As per the final order
R E A S O N S
AS TO POINT NO.1 :
7. Heard Ld. Advocates for both the sides. It is argued on
behalf of applicant that plaintiff/Trust wanted to amend the
scheme/object of trust in 2009. The plaintiff sold property to the
applicant in 2010. The sale is approved by Hon’ble High Court in 2011.
Now, plaintiff want to withdraw the suit but applicant has objection
because the scheme needs to be amended. The applicant has right, title
and interest in the suit property and therefore, it is necessary to join
applicant as defendant No.8 in the suit.
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8. As against this, it is argued on behalf of plaintiff that
plaintiff sold the property to the applicant in 2010 by registered Deed of
Conveyance and thereafter plaintiff terminated the same by issuing
notice. The applicant filed suit for specific performance and plaintiff
filed counter claim for termination which is pending in Hon’ble High
Court. Now, plaintiff is unconditionally withdrawing the suit. The
applicant has no right to be impleaded as defendant in the present suit
as claimed by him.
9. It is argued by Ld. Advocate for the defendant Nos.3 to 6
that in a suit by or against the trust, the necessary parties should be
trust beneficiaries and Charity Commissioner. Initially, the suit was filed
only against Charity Commissioner i.e. defendant No.1. Then on the
application of beneficiaries, they were added as defendants. The
applicant is not going to be affected either by withdrawing or
prosecuting the suit. The applicants are not ‘person having interest’ as
defined under Section 2(10) of the Maharashtra Public Trust Act, 1950
and they are neither beneficiaries nor the trustees of the said trust and
they are not entitled to be impleaded in the present suit.
10. Upon hearing all the sides, it can be said that the,
applicants are claiming themselves to be interested in the suit property
and they are seeking impleadment as party defendant No.8 in the suit.
It appears that suit is filed by the plaintiff as a trust for change of
scheme of the trust. Defendants i.e. beneficiaries of the trust are
opposing the suit. Now, plaintiff is unconditionally withdrawing the
suit. However, the applicants are opposing the same and seeking their
impleadment as party defendant in the suit. It also appears that the
plaintiff sold the property to the applicant in the year 2010 by the Deed
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of conveyance. Subsequently, the plaintiff terminated the same by
issuing notice. The applicants filed suit for specific performance for
termination which is pending in Hon’ble High Court. All these facts are
not disputed. Now, though applicants have contended that they have
purchased the suit property from the plaintiff and they have interest in
the suit property, already they have initiated proceeding regarding the
same which are pending before the Hon’ble High Court. Therefore, so
far as present suit is concerned, they are not necessary and property
party to the suit. Moreover, it is pertinent to note that, plaintiff is the
domius litis and is master of his suit and he may implead any person as
defendant against whom he intends to seek relief. In the present suit, no
relief is sought against the present applicant. Moreover, since applicant
is seeking mere withdrawal of the suit, no rights of the present
applicant are going to be affected. The presence of applicant in the suit
is not necessary and as such, the applicant is not proper and necessary
party to the suit. Therefore, the prayer of applicants for impleading
them as party defendant No.8 in the present suit can not be allowed.
The Chamber Summons is devoid of merits and is liable to be rejected.
Hence, I answer point No.1 in the negative and proceed to pass the
following order:-
ORDER
1. Chamber Summons No. 284 of 2020 in Suit
No.778 of 2009 is hereby dismissed with cost.
2. Chamber Summons is disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 07.03.2024 Gr. Bombay.
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Dictated on : 07/03/2024
Transcribed on : 07/03/2024
Signed on : 11/03/2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/03/2024 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
07.03.2024
Judgment/Order signed by P.O. on 11.03.2024
Judgment/Order uploaded on 11.03.2024
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