Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S.302/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
Chamber Summons No. 302 of 2018
In
S.C. Suit No. 4416 of 1992
1. Mr. Ashwin C. Negandhi
of Mumbai & Ors. ...Plaintiffs
V/s.
1. M/s. M.B. Development Corpn.,
& Ors. ...Defendants.
Appearances: Ld.Adv. Mr. Chheda for the plaintiff.
Ld.Adv.Mr. Bhadang for defendant Nos.1 & 2
Ld.Adv. Mr. Bharat Choudhary for deft.No. 4
Ld.Adv. Mr. Suryavanshi for defendant No. 5
Coram : D.K. Gudadhe, Adhoc Judge.
(C.R.No. 12)
Dated: 1st November, 2018
Order
1. This chamber summons is taken out by the plaintiffs to add
new party to the proceedings and also for making amendment in the
pleadings. The facts of the Chamber Summons in short are as under.
2. According to the plaintiffs, they have filed a suit for
declaration that defendant Nos. 1 and 2 have no right, title, interest of
any any nature whatsoever in a disputed property and they are not
entitled to obstruct the plaintiff use over the disputed property with
further relief that they be restrained from disturbing the plaintiff's use
of the disputed property. The plaintiff filed this suit in their personal
capacity as well as in representative capacity and even sought leave of
the court as per the provisions of Order1 Rule8 of the CPC. At the
time of filing the suit the other user of the disputed way were made
-- 1 of 6 --
2 Ch/S.302/2018
party defendants. But during pendency of the suit some defendants
sold their shops/tenements to the proposed defendant and as such, they
be added as defendants.
3. The plaintiffs further prayed for amendment in the
pleadings on a ground that in other connected suit the Hon'ble High
Court directed defendant No. 5Municipal Corporation to maintain the
disputed property, which is according to the plaintiffs is a public way,
but they failed. This is in spite of their representation to defendant
No.5 and particularly, after 01.10.2016. Therefore, the plaintiff wants
to bring this fact also on record. Thus, the plaintiff has taken out this
chamber summons for these two purposes.
4. Defendants No. 1 opposed the chamber summons on a
ground that neither proposed parties are necessary for deciding dispute
nor the proposed amendment is necessary particularly, in view of
completion of the trial. Therefore, according to him, chamber summons
deserves to be rejected.
5. On these rival contentions of the parties, the points that
arise for my determination are as follows. I have given my findings
thereon for the reasons mentioned in the subsequent paras.
Sr.No. POINTS FINDINGS
1. Whether the presence of the proposed
defendant is necessary in order to enable
the court effectually and completely to
adjudicate upon and settle all questions
involve in the suit ?
No.
-- 2 of 6 --
3 Ch/S.302/2018
2. Whether the proposed amendment is
necessary for the purpose of determining
real question in controversy between the
parties and the plaintiff in spite of due
diligence could not have raised the matter
before commencement of the trial ?
No.
3. What order? As per final order.
Reasons:
As to Point No.1:
6. It is the contention of the plaintiff that, during pendency of
the matter number of defendants who would use the disputed property
because they were having shops in the neighbourhood of the disputed
property sold their shop/property. Therefore, proposed defendants be
added. But, it is pertinent to note here that, considering the nature of
dispute and reliefs sought by the plaintiff, I do not think presence of the
proposed defendants are necessary in order to enable the Court
effectively and completely to adjudicate upon and settle all questions
involve in the suit. This is for the reason that the plaintiff has sought
relief against defendant No. 1 and 2 only because defendant Nos. 1 and
2 are claiming ownership right over the disputed property and other
defendants have not challenged the plaintiff's claim.
7. Further, suit is in representative capacity as claimed by the
plaintiffs. In addition to this, the trial has been over and the matter is
very old one. Thus, in my view, point No. 1 is require to be answered in
negative. Accordingly, I answer the same.
-- 3 of 6 --
4 Ch/S.302/2018
As to Point No.2:
8. To ascertain whether the proposed amendment is necessary
or not, one is require to see the plaintiffs' pleadings and relief they
sought for. In case at hand the plaintiffs' only prayer reads thus,
“That it be declared that the disputed property viz. Property
bearing C.S. NO. 841 admeasuring 1,388 sq.yds. Situate at of
Tokersy Jivraj Road, Sewri (W), Bombay 400 015, more
particularly shown on Plan Exhibit “E” hereto, is a public road
and that the defendants No. 1 and 2 have no right, title or
interest of any nature whatsoever to the disputed property and/or
that the defendant Nos. 1 and 2 are not entitled to in any way
obstruct the plaintiffs and Members of the public from using the
disputed property as an access road either by foot or by vehicles
at all times of the day and night.”
Whereas; by way of proposed amendment the plaintiffs want to bring
on record that in spite of their requests to defendant Corporation and
particularly in view of the Hon'ble High Court directions to maintain the
said public way they failed to do so. According to the plaintiff, they
made such representation to the defendant Corporation after
26.08.2016.
9. So from the plaintiffs' main relief and the proposed
amendment, it is seen that same is not at all necessary for deciding as to
whether the defendant Corporation acted in compliance of the
directions of the Hon'ble High Court or not. This is also especially when
defendant No. 2 disputed the said public way as a public way and
claimed to be owner of the said way. In view of all these facts of the
matter, I am of firm view that the proposed amendment is not
necessary. Thus, in my view, this point is also require to be answered in
negative. Accordingly, I answer the same.
-- 4 of 6 --
5 Ch/S.302/2018
As to Point No. 3:
10. In view of my findings to above points and reasons for the
same, I hold that the proposed amendment is not necessary and
consequently the chamber summons deserves to be rejected.
Accordingly, I answer this point and proceed to pass order in following
terms.
Order
1. Chamber summons is hereby rejected
2. Accordingly, Chamber Summons is disposed of.
(D.K. Gudadhe)
Adhoc Judge,
01.11.2018 City Civil Court, Gr. Bombay.
Dictated on : 01.11.2018
Transcribed on : 02.11.2018
Signed on : 03.11.2018
-- 5 of 6 --
6 Ch/S.302/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 03.11.2018 5.40 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
01.11.2018
JUDGMENT /ORDER signed by P.O. on 03.11.2018
JUDGMENT /ORDER uploaded on 03.11.2018
-- 6 of 6 --