Final Order 1

Order Details: Chamber summons
Pdf Text: 1
CNR No.MHCC010020932018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.289 OF 2018
IN
SUIT NO.1325 OF 2016
Subhash Shankar Ghuge .. Plaintiff
Versus
Richa Rajan Dharmalingam & Ors. .. Defendants
AND
Seema Dilip Giyanani .. Applicant
(Proposed Defendant)
Mr. Andrews, advocate for plaintiff.
Mr. Charanjeet Chanderpal, advocate for applicant.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 20th March, 2019
ORAL ORDER
Chamber summons is taken out by the applicant for issuing
direction to plaintiff to add her as party defendant to present suit by
making amendment to that effect in the suit.
2. It is the contention of applicant that she is in possession as
tenant from 01.04.2013 under the Agreement of Leave and Licence and
she is in constructive possession of property i.e. suit premises Shop
No.53, (including 53A and 53B), Shree Padam Prabhu Coop Housing
Society Ltd., LBS Marg, Ghatkoper (West), Mumbai86. She has not
handed over possession in due process of law and therefore she is
necessary party in the suit. Hence, prayed in above terms.
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3. Plaintiff filed affidavit in reply to chamber summons and
opposed chamber summons. It is his contention that applicant was in
possession of suit premises much earlier in point of time and she has
vacated the suit premises long back. Thereafter, plaintiff is in possession
of the suit premises and therefore, question of adding or joining the
applicant as party defendant does not arise. Alleged Leave and Licence
Agreement on which applicant has relied upon is terminated and she
has left the suit premises long back and thereafter plaintiff is in sole,
exclusive and peaceful possession of suit premises. Applicant has no
right and interest in the suit premises. She is not even a proper party.
Hence, prayed that chamber summons be dismissed.
4. Defendants did not file reply to chamber summons.
5. Perused chamber summons, affidavit in support of it, reply
affidavit of plaintiff, documents, plaint and written argument of
applicant. Heard respective counsel for parties. They advanced
argument in accordance with respective contention of parties.
6. It is settled law that necessary party is a person who ought to
have been joined as a party and in his absence no effective decree can
be passed at all by the court while proper party is a party who though
not a necessary party, is person whose presence can enable the court to
completely, effectively and finally adjudicate upon all matters in dispute
in the suit though he need not be a person in favour or against whom
decree is to be made.
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7. Now, it is to be seen whether applicant needs to be impleaded as
party to the present suit.
8. Plaintiff has filed suit claiming declaration that act of
threatening to oust plaintiff from suit premises i.e. Shop No.53,
(including 53A and 53B), Shree Padam Prabhu Coop Housing Society
Ltd., LBS Marg, Ghatkoper (West), Mumbai 86 is bad in law, illegal,
incorrect and improper and defendants or any other person claiming
through them be restrained by an order of injunction from dispossessing
plaintiff or disturbing his peaceful possession over the suit premises.
9. Subject matter of present suit is also a subject matter under
Leave and Licence Agreement which was executed in favour of
applicant by one Rajan Narayan Dharamlingam, deceased husband of
defendant No.1 & brother of defendant Nos.2 and 3. Said leave and
licence agreement was for the period from 01.04.2013 to 31.03.2018.
No doubt, period of said licence has expired. However, present suit was
filed in the year 2016 when as per said leave and licence agreement,
licence of applicant over the suit premises was subsisting. Applicant has
contended that she has not handed over possession in due process of
law and so she is in constructive possession of the property but she has
not specifically stated as to when she was dispossessed from suit
premises. On the other hand, plaintiff in his reply to chamber summons
has contended that applicant was in possession much earlier in point of
time and she has vacated premises long back. He has also not clarified
as to when applicant handed over possession of suit premises. No
document is placed on record to show that applicant has surrendered
her possession over suit premises. May it be so applicant herself
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admitted that she is not in possession of suit premises, period under
licence is already over and no relief is sought against the applicant. If
she was dispossessed without following due process of law by the
plaintiff as contended by her in notes of argument then she has
appropriate remedy to ventilate her grievance in that regard
independently. I am of the view that her presence is not required in
order to have completely, effectively and finally adjudicate upon all
matters in dispute in the suit.
ORDER
Chamber Summons No.289 of 2018 stands dismissed and
disposed off accordingly.
(M. T. Asim)
Judge
Date : 20.03.2019 Gr. Bombay
Typed on : 20.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.03.2019, 11.30 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
20.03.2019
JUDGMENT/ORDER signed by P.O.
on
22.03.2019
JUDGMENT/ORDER uploaded on 25.03.2019
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