Final Order 1

Order Details: Chamber summons
Pdf Text: CH/S No.356/2020 1 L.C. Suit No.4418/2011
(CNR NO. MHCC01-002329-2020)
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 356 OF 2020
IN
NOTICE OF MOTION NO. 414 OF 2020
IN
L.C. SUIT NO. 4418 OF 2011
(HIGH COURT SUIT NO. 2384 OF 2011)
Anup Lalwani )
Age 42, Occu Architect )
Residing at Flat No.C-301 )
Emgee Green Co-operative Housing )
Society, MTV Road, Antop Hill, )
Wadala (E), Mumbai – 400 037 )... Applicant
In the matter between
Emgee Green Co operative Housing )
Society, MTV Road, Antop Hill, )
Wadala (E), Mumbai – 400 037 )....Plaintiff
V/s.
1. The Municipal Corporation of Greater )
Mumbai, having its office at )
Mahapalika Marg, CST, Mumbai – 400 001 )
2. Mudit Gupta Sole Proprietor of Emgee )
Developers and Consultants having his )
address at 17/17A, Babubali Building, )
Cawasji Patel Road Mumbai – 400 001. )
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3. Hareraji Family Trust represented )
by Mr. Ashwin Gupta having its placed of )
business at India Steel No.1 India Bulls, )
Center Tower B-2 10th Floor, )
Elphinstone Road (W) Mumbai )
4. SPV Family Trust represented )
by Mr. Ashwin Gupta having its place of )
business at India steel No.1 India )
Bulls, Center Tower B-2 10th Floor, )
Elphinstone Road (W) Mumbai )
5. Ashiana Family Trust represented )
by Mr. Ashwin Gupta having its place )
of business at India steel No.1 India )
Bulls, Center Tower B-2 10th Floor, )
Elphinstone Road (W) Mumbai. )
...Defendants
APPEARANCE:-
Ld. Adv. Dnyaneshwar Jadhav for applicant.
Ld. Adv. Jash Vyas i/b Jash Vyas and Company for plaintiff.
Ld. Adv. Vyavahare for defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 12th OCTOBER, 2020.
ORDER
This Chamber summons is taken out by applicant praying
to implead himself as party defendant in L.C. Suit No.4418/2011 and
Notice of Motion No.414/2020.
2. Read the averments in affidavit filed along with chamber
summons. Perused the reply filed by plaintiff as well as defendants, so
also the Notice of Motion No.414/2020 moved by plaintiff.
3. Applicant has moved present chamber summons to
implead himself as party defendant in L.C. Suit No.4418/2011 and
Notice of Motion No.414/2020. According to applicant, plaintiff has
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moved Notice of Motion No.414/2020 praying to set aside the decree
passed in terms of consent terms dated 18.07.2017 on the ground that
the consent terms executed between plaintiff and defendant No.2 is
illegal, unlawful and bad in law. According to applicant, he was the
chairman of the earlier Managing Committee of the plaintiff society. He
was signatory to the consent terms filed in court on 17.07.2017. The
new Managing Committee of plaintiff society has moved the aforesaid
Notice of Motion No.414/2020. As serious allegations are made against
the applicant and as he is signatory to the consent terms, he has moved
present notice of motion to refute the allegations made in the notice of
motion.
4. Plaintiff who has moved the Notice of Motion
No.414/2020 has strongly objected the chamber summons on the
ground that applicant had filed his evidence on behalf of plaintiff at the
time of hearing of the suit which is part of record. No relief is claimed
by plaintiff against the applicant. Furthermore, applicant is praying for
impleadment only to contest the notice of motion. Therefore, applicant
cannot be necessary party. For aforesaid reasons, the chamber summons
deserves to be rejected.
5. Heard both the learned advocates who have argued in
lines of the pleadings in chamber summons and the reply given.
Learned advocate for applicant has further relied upon the
observations in 1)
Nirmal Jeet Singh Hoon V/s. Irtiza Hussain and Ors
2) Adam A sorathia and anr V/s. Municipal Corporation of Greater
Bomday and anr. 3) Chitralekha Builders and anr V/s. G.I.C. Employees
Sonal Vihar Co-operative Housing Society Ltd. And others. 4) Anuratha
Vasantrao Ghorpade V/s. Sayajirao Tatyasaheb Ghorpade.
6. I have given anxious consideration to arguments of both
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the learned advocates. It is pertinent to note that present suit was filed
by the plaintiff society against the defendant MCGM for injunction to
demolish the dilapidated structure shown in the plaint and to hand
over the portion of the land after demolition to plaintiff for use of same
as garden so also for recovery of sum of Rs.75,000 from defendant
Nos.2 to 5. Defendant No.2 is developer and defendant Nos.3 to 5 are
trust. On 17.07.2017, when the matter was posted for evidence of
defendant No.2, the earlier Managing Committee of plaintiff society
and defendant No.2 had filed consent terms. Present applicant was the
chairman of the society at that time and was the signatory to the
consent terms. The consent terms were duly read and recorded by my
predecessor in office and decree in terms of consent terms is passed on
18.07.2017. Thereafter, on next date, Notice of Motion No.414/2020
was moved by plaintiff. The evidence of both sides is already recorded
in the suit. The matter was posted for final arguments.
7. If aforesaid factual background is taken into account it is crystal
clear that no relief is claimed against present applicant. The allegations
in notice of motion are against earlier Managing Committee of plaintiff
& there is attack on due procedure followed by it. As plaintiff has
moved notice of motion, it is burden of plaintiff to stand the said
allegations to be impleaded in plaint. Furthermore, applicant had filed
his evidence as witness of plaintiff to prove the case of plaintiff. It is
anomaly that applicant who has deposed to prove the case of plaintiff
now wants to implead himself as party defendant. I fail to understand
as to how he can be impleaded as he has prayed. There is no relief
claimed against present applicant nor there are any allegations in plaint
against applicant. The notice of motion of plaintiff is taken on record
keeping open its maintainability as per the roznama dated 10.08.2017.
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The notice of motion is yet to be decided. The allegations made in the
notice of motion are not part of record as on today. Therefore, there are
no pleadings in form of allegations on record as against applicant as on
today. As discussed above, suit is against defendants who are defendant
MCGM, developer and trust. It will be they who will agitate the Notice
of Motion. There are no issues strucked in present case which are to be
decided for which the impleadment of applicant will be necessary. As
stated above, the allegations in notice of motion are not part of record
as on today. Therefore, it can be safely said that the chamber summons
is premature.
8. The purport of Order 1 Rule 10 (2) is very clear. It reads as
follows -
(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, 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 the Court effectually and completely to
adjudicate upon and settle all the questions involved in the suit,
be added.
Further who can be arrayed as defendant is stated in Order 1
Rule 3 which reads as follows -
3. Who may be joined as defendants - All persons may be joined
in one suit as defendants where -
(a) any right to relief in respect of, or arising out of, the same act
or transaction or series of acts or transactions is alleged to exist
against such persons, whether jointly, severally or in the
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alternative; and (b) if separate suits were brought against such
persons, any common question of law or fact would arise.
9. Court can suo-moto or on application of either parties can
implead anyone as party to the suit if his presence is required for
deciding the dispute or the questions involved in the suit. Nothing is
brought on record that impleadment of applicant is necessary and will
enable the court to effectually and completely adjudicate upon or settle
the issues involved in the suit. For all aforesaid discussion, the
arguments of learned advocate for applicant are not convincing.
10. Coming to the case laws submitted by learned advocate for
applicant, in the case of
1) Chitralekha builders and anr, 2) Anuradha
Vasantrao Ghorpade, 3) Adam A. Sorathia and Anr. And 4) Anuratha
Vasantrao Ghorpade V/s. Sayajirao Tatyasaheb Ghorpade. the ratio
observed with respect to Order 1 Rule 10 of CPC, there cannot be any
quarrel. It is settled legal position as on today that where the presence
of a person is necessary for complete and effectual adjudication of the
dispute, though no relief is claimed against him, he is a proper party.
Under Order 1, Rule 10 (2) of the Civil Procedure Code a person,
whose presence before the court is necessary in order to enable the
court effectually and completely to adjudicate and settle all the
questions involved in the suit, will be necessary party and will have to
be added.
11. As discussed above, plaintiff failed to show that his
presence in suit is necessary to decide the issues or the questions
involved in the suit. The facts and circumstances in all the three cases
are different than in present case. Therefore, though there is settled
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ratio in these three citations, plaintiff will not get benefit for want of
making out such case.
12. In the cited case of
Nirmal Jeet Singh Hoon, there were
stray observations in paragraph-20 that petitioner made unwarranted
allegations without impleading them. Only because such observations
are made, they do not cull out ratio that the aforesaid observations
were with respect to Order 1 Rule 10 of Civil Procedure Code. The
observations are not with respect to Order 1 Rule 10 of Civil Procedure
Code. In this citation nowhere it was discussed that party can be
impleaded in suit for deciding the notice of motion, nor it was
discussed that the party who had adduced evidence for plaintiff can be
added as defendant in the suit. Nor such party can be impleaded under
Order 1 Rule 10 is discussed. No relief is claimed in plaint and notice of
motion against applicant. It is against earlier Managing Committee of
plaintiff society. The burden is of plaintiff to establish the same. The
stray observations in this citation were made because petitioner there
in made allegation without impleading them in petition. Facts are
totally different. Therefore, this citation will also not help applicant.
13. For all aforesaid discussion, I cannot accede with
arguments of learned advocate for applicant. At the most, if at the time
of deciding Notice of Motion No.414/2020, if the court feels that the
arguments of present applicant needs to be heard, court has powers to
allow applicant to hear him. However, at this stage, his impleadment in
present suit is absolutely not necessary when the matter is at fag end of
final arguments and when the matter is time bound by Hon’ble High
Court. The chamber summons therefore deserves to be dismissed. In
result, I proceed with following order -
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CH/S No.356/2020 8 L.C. Suit No.4418/2011
ORDER
1. Chamber Summons No.356/2020 moved by applicant is
hereby dismissed.
2. No order as to Costs.
3. Chamber Summons No.356/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 12.10.2020 City Civil Court, Gr. Bombay
Directly dictated on computer :12.10.2020.
checked on :13.10.2020.
Signed on :15.10.2020.
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CH/S No.356/2020 9 L.C. Suit No.4418/2011
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.10.2020, 10.47 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
12.10.2020.
JUDGMENT/ORDER signed by P.O.
on
15.10.2020
JUDGMENT/ORDER uploaded on 19.10.2020.
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