Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.599/2019 ..1.. Suit No.960/2017
CNR No.MHCC01002994 2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.599 OF 2019
IN
SUIT NO.960 OF 2017
Joe Savio D'souza .. Plaintiff
Versus
Suryakant Jedi .. Defendant
And
Mr. Nelson Domnic D'souza .. Applicant
Mr. Dinesh Vishwakarma, advocate for plaintiff
Mr. Sameer Logade, advocate for applicant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 10th October, 2019
ORAL ORDER
Chamber Summons is taken out by applicant namely Nelson
Domnic D'souza to implead him as defendant No.2 in the present suit
No.960 of 2017.
2. It is the contention of applicant that plaintiff in the above
referred suit is related to him as nephew. However, he is not coowner
of the suit premises. It is further contended that his father late Domnic
Philip D'souza bequeathed Velankani Apartment together with other
properties in favour of his mother Mebal Domnic D'souza vide Will
dated 16.01.1982 and said Will is probated on 21.03.2005. His mother
disposed of said Velankani Apartment by Deed of Gift dated 20th
-- 1 of 5 --
CS No.599/2019 ..2.. Suit No.960/2017
August, 2010 which was duly registered on 21st August, 2010 and he is
in possession of said Velankani Apartment although the suit flat is let
out to the wife of defendant. It is further contended that plaintiff
without having any title over the suit premises filed the present suit
misrepresenting that he is coowner of suit premises and defendant is
trespasser. He further contended that he is son and legal heir of Mebal
Domnic D'souza and has succeeded to her property namely Velankani
Apartment. In above circumstances he prayed that he should be
impleaded as proper and necessary party to the suit. Accordingly, he
made prayer in above term.
3. Plaintiff opposed chamber summons on the ground that
applicant has forged and fabricated Will of his deceased grandfather
and grandmother. He has also challenged gift deed dated 20.08.2010
which is also product of fraud, suppression and forgery. Accordingly, he
prayed for dismissal of chamber summons.
4. Applicant filed rejoinder to the reply of plaintiff and reiterated
the facts mentioned in affidavit in support of chamber summons. He
further contended that building known as Velankani Apartment in
which present suit premises is situated was gifted to him by registered
Gift deed dated 21.08.2010 and thus, he became owner of entire
Velankani Apartment. He also contended that suit premises was let out
by his father to Savita Suryakant Jedi who is wife of defendant in
present suit. He also contended that he collected rent throughout the
period of tenancy in relation to suit premises and prayed to allow
chamber summons.
-- 2 of 5 --
CS No.599/2019 ..3.. Suit No.960/2017
5. I have carefully gone through chamber summons, affidavit in
support of it, reply of plaintiff, rejoinder of applicant and plaint. Heard
respective counsel for applicant and plaintiff.
6. It is clear that plaintiff has filed suit claiming possession of
Room No.5 on second floor of building namely Velankani Apartment
situated on city survey No.227, at Kamani, Kurla West, Mumbai. It
seems that plaintiff has filed said suit claiming himself as coowner of
the suit premises. Applicant has filed copy of the probate of Will dated
21.03.2005 along with copy of said Will 16.01.1982 which clearly
indicate that Domnic Dsouza has bequeathed Velankani Apartment and
other property to his wife Mebal D'souza. He also filed copy of Index II
to show that Mebal D'souza has executed registered Gift deed in his
favour in relation to property situate on C.T.S. No.227 and 227/1. He
has also filed copy of rent receipts of different period relating to suit
premises to show that wife of defendant is tenant in relation to suit
premises and that, initially his father, then his mother and now he
himself had issued rent receipts of suit premises. Thus, prima facie
applicant has filed documents showing his interest in relation to suit
premises. Whether the documents are forged or fabricated as claimed
by the plaintiff is a matter of evidence which can be decided after
conducting fullfledged trial. Applicant has denied that plaintiff is co
owner of the suit premises. In the above set of facts, I am of the view
that presence of applicant is necessary for complete adjudication of
controversy between the parties. His presence will certainly assist the
court in just decision of the matter. Therefore, it is necessary to direct
the plaintiff to implead applicant as party defendant No.2. hence, pass
following order.
-- 3 of 5 --
CS No.599/2019 ..4.. Suit No.960/2017
ORDER
1. Chamber Summons No.599 of 2019 is allowed in following
terms.
2. Plaintiff is directed to implead applicant as party defendant No.2
within period of two weeks from the date of this order.
3. After carrying out amendment in the cause title of plaint writ of
summons be served upon applicant.
4. Accordingly, chamber summons is disposed of.
(M. T. Asim)
Judge
Date : 10.10.2019 Gr. Bombay
Typed on : 10.10.2019
HHJ signed on :
-- 4 of 5 --
CS No.599/2019 ..5.. Suit No.960/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.10.2019, 5.45p.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
09.10.2019
JUDGMENT/ORDER signed by P.O.
on
10.10.2019
JUDGMENT/ORDER uploaded on 17.10.2019
-- 5 of 5 --