Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order on Ch/Sum 446-18 in Suit 3993-09
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 446 OF 2018
(CNR no. MHCC01003132018)
IN
L.C. SUIT NO. 3993 OF 2009
(CNR no. MHCC010041562009)
(HIGH COURT SUIT NO. 1927 OF 2009)
M/s. Orient Pratishthan Ltd. ]... Plaintiff
Versus
1. Madhukar Ganapat Patil and 49 ors. ]... Defendants
And
Darling Apartments CHS Ltd. ]... Applicant
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 18th March, 2019.
Mr. M. R. Chauhan, advocate for plaintiff.
Ms. Kanchan Dubey, advocate for defendant nos. 12 to 18, 22, 25, 32,
34, 36, 42, 45, 46.
Mr. Jafri, advocate for applicant.
None for other defendants.
ORDER
1. The applicant has taken out this chamber summons seeking
its impleadment as defendant in the suit.
2. The learned advocate for the applicant submitted that the
applicant is the sublessee of a plot of land of which the plaintiff is
lessee and defendant nos. 1 to 8 are the lessors. According to him, the
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plaintiff has instituted a suit for specific performance of some terms and
conditions of the lease to exercise an option to purchase the leased land
out of which a plot of land is subleased to the applicant and therefore,
the presence of the applicant is necessary for determination of the
matter in dispute.
3. The learned advocate for the plaintiff submitted that the
suit property was leased out by the defendant nos. 1 to 8 to the
plaintiff. The plaintiff was made entitled to purchase lease land on the
basis of some terms and conditions of the lease deed. According to him,
the plaintiff has already subleased a plot of land to the applicant for a
period up to 2062 with a further liberty to get the lease renewed for
further 98 years and as such the applicant would hold the said plot of
land for 144 years as sublessee and its possession will be protected,
even if the plaintiff becomes an owner of the entire property. Thus, its
absence in this suit will not cause prejudice to applicant. According to
him, the chamber summons has been taken out in collusion with the
defendants in order to protract the hearing and disposal of the suit and
harass the plaintiff. He further submitted that the original lessors have
also filed a suit for eviction against the plaintiff which is pending before
Small Cause Court. In reply, the learned advocate for the applicants
submitted that the applicant being a sublessee is necessary party to the
suit.
4. Considering the rival submissions and copies of documents
placed on record, it appears that the plaintiff has instituted a suit
against the defendants seeking specific performance of certain terms
and conditions of the lease deed dated 23.07.1965 for exercising an
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option to purchase the suit property and further consequential reliefs.
Thus, the matter in dispute would be whether the plaintiff is entitled to
exercise the option of purchase of the suit property and whether the
defendants are under obligations to perform their part of agreement. It
is undisputed that the applicant is holding a plot of land on the basis
sublease executed by the plaintiff with an option to renew the same for
further 98 years and therefore, even if the plaintiff is permitted to
exercise option and purchase the suit property, the applicant will not
suffer any prejudice or hardship as the status of the applicant would be
of sublessee or at most lessee in respect of the plot of land leased out to
it. Therefore, the applicant will not be a proper or necessary or legally
interested party in this suit.
5. The Hon'ble Supreme Court in the case of Ramesh vs.
M.C.G.M reported in (1992)2 Supreme Court cases 524 has held that
a necessary party is one without whom no order can be made
effectively. A proper party is one in whose absence an effective order
can be made but whose presence is necessary for complete and final
decision on questions involved in the proceedings. Only reason which
makes it necessary to make a person a party to an action is so that he
should be bound by the result of action and the question to be settled
can not be settled effectively and completely unless he is party. Person
must be directly and illegally interested party. The result of litigation
would affect him legally by curtailing his legal rights. The person whose
object is to prosecute his own cause of action cannot be so joined. The
Hon'ble Supreme Court by relying on the ratio in the case of Dollfus
Mieget Campagnie S.A. vs. The Bank of England reported in
(1950)2 All England Reporter 605 has laid down a test “May the
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order for which the plaintiff is asking, directly affect the intervenor
in enjoyment of his rights”,
6. Here, the applicant intervenor has not shown that the
decision of this suit will affect / curtail enjoyment of its right in the plot
of land subleased to it. Therefore the application deserves to be
dismissed with costs. Thus, the following order is passed :
ORDER
1. The Chamber summons no. 446 of 2018 is dismissed with costs.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 18.03.2019 City Civil Court, Mumbai.
Dictated on : 18.03.2019
Transcribed on : 18.03.2019
Checked by HHJ on : 19.03.2019
Signed by HHJ on : 19.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.03.2019 at 5.55 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
18/03/2019
JUDGMENT/ORDER signed by
P.O. on
19/03/2019
JUDGMENT/ORDER uploaded
on
20/03/2019
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