Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1142 OF 2019
IN
S.C.SUIT NO.7170 OF 2006
Dwarkanath Ramchandra Dere & Ors. ... Plaintiffs
Versus
Manohar Ramchandra Dere (since deceased)
and Ors. ... Defendants
AND
Pushpa Tukaram Borhade & another … applicants/
Prop.Plffs.
AND
Nandkumar Dwarkanath Dere & Ors. … Respondents
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 24 th JUNE, 2019
Advocate Mr.P.K.Shetty for Plaintiff.
Advocate Mahesh Bendra for applicants.
O R D E R
1. This notice of motion is taken out by the applicants, who
are shown as defendant nos.4 and 6 for transposing from defendants'
array to plaintiffs' array, for restoration of Chamber Summons
No.2122/2018.
2. Applicant Mrs.Uma Dangi has filed her affidavit in support
of notice of motion contending that applicants have filed Chamber
Summons No.2122/2018 to transpose them from defendants' array to
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the plaintiffs' array. As contended in the applicant's affidavit she was
aware that applicants' advocates were diligently attending the matter
and they were taking all necessary steps in the suit. On 15/01/2019 the
matter was listed under the caption “for compliance”. The applicant's
advocate Ms.Jaya Misal was present in the Court at 11.00 a.m.,
however when she made inquiry she learnt that matter will be called
out serial wise in the afternoon. Therefore, advocate Mrs.Jaya Misal
left to another Court to attend the Sessions case. Further applicants'
advocate Mrs.Jaya Misal has health issue therefore, she went away to
home early as such the applicants could not keep present their advocate
before the Court, due to unavoidable circumstances in respect of health
issue of their lady advocate and therefore, they could not tender draft
chamber summons No.2122 of 2018 hence said chamber summons
came to be dismissed in default. Applicants have contended that they
have good case on merits and if the chamber summons will not be
restored to its original stage and number they will grave loss. Hence,
applicants have prayed to allow the notice of motion.
3. Plaintiff Nandkumar Dere has resisted the notice of motion
by filing his affidavit in reply and he has pointed out that chamber
summons No.1048/2018 was taken out by plaintiff no.1(b) and 1(c) for
impleading them as LRs of their father and for impleading applicants of
this notice of motion as defendant no.4 and 6. Said Chamber summons
was made absolute by the Court on 15/01/2019 and amendment to
that effect is carried out on 23/01/2019 as such applicants are
impleaded in the suit as defendant nos.4 and 6. Therefore, according to
plaintiffs, chamber summons no.2122/18 taken out by applicants was
dismissed on 15/01/2019 and in any event it has become infructuous in
view of order passed by the Court in chamber summons no.1048/2018.
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Therefore, according to plaintiffs, this notice of motion for restoration
of chamber summons no.2122/2018 is necessary to be dismissed.
4. Heard applicants advocate Mr.Bendre and plaintiffs'
advocate Mr.Shetty at length. Already applicants are impleaded as
defendant nos.4 and 6 in the suit. However, they were intending that
they should be impleaded as plaintiffs in the matter and therefore, they
had filed Chamber Summons No.2122/2018 which came to be
dismissed for want of prosecution. According to applicants' advocate,
applicants are necessary to be impleaded as plaintiffs in the suit and
they cannot become defendants in the matter. Therefore, said chamber
summons is necessary to be restored for necessary amendment in the
plaint. Plaintiffs' advocate submitted that applicants have refused to
sign the affidavit which was filed in support of chamber summons
No.1142/2019 and hence they were impleaded as respondents of said
Chamber summons and they are impleaded as defendants of the suit.
On careful perusal of the plaint it is noticed that no substantial relief is
sought against applicants i.e. defendant nos.4 and 6. However, prayer
clauses (a) to (c) which are material and they are against original
defendant Shri Manohar Ramchandra Dere, now deceased, and as such
those reliefs are claimed against defendant nos.1 to 3 who are LRs of
original defendants. Thus, it becomes clear that defendant nos.4 to 6 of
this suit including applicants are formal parties to the suit against whom
no relief is sought in the plaint. In such circumstances, even if
applicants will remain as defendants and even if they will support
plaintiffs' claim subject to protection of their legal rights in the property,
I find that no harm or prejudice will be caused to them. Therefore, I
find that restoration of Chamber summons no.2122/2018 is not
necessary to be restored for transposing applicants (defendant nos.4
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and 6) of plaintiffs' array. Hence, I find that this notice of motion is not
necessary to be allowed. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion no.1142 of 2019 stands dismissed/disposed off.
Sd/
(K.P.NANDEDKAR)
24/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 24/06/2019
Transcribed on : 26/06/2019
Signed by HHJ on : 01/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/07/2019 2.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 24/06/2019
Judgement/order signed by P.O on 01/07/2019
Judgement/order uploaded on 03/07/2019
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