Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.63519 in SC Suit 46712
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO.635 OF 2019
(CNR No.MHCC010031612019)
IN
SHORT CAUSE SUIT NO.467 OF 2012.
(CNR No.MHCC010001622012)
Smt. Ashwini Mahesh Tupe & Anr. }...PLAINTIFFS.
VERSUS
Shri.Ashok Shripal Khatpe & Ors. }...DEFENDANTS.
AND
M/s. Tejukaya Corp. }...APPLICANT.
Shri.Abhay D. Parab, learned advocate for the applicant.
Shri.Redekar, learned advocate for the plaintiffs.
CORAM: HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 02/05/2019)
1. By filing this Chamber Summons, applicant has prayed to
implead the applicant as partydefendant to the suit. Relief is also
claimed to direct the Court Receiver to handover possession of the suit
premises to the applicant on a condition that permanent alternate
accommodation in lieu of the suit premises shall be handed over by the
applicant to the Court Receiver and/or to parties to the suit as per order
of court. Read the affidavit filed in support of the Chamber Summons &
reply filed by the plaintiffs. Heard learned Shri.Abhay D. Parab,
advocate for applicant and learned Shri.Redekar advocate for the
plaintiffs. Perused the entire record.
2. Learned advocate for applicant argued that applicant is the
landlord/owner of the suit property, applicant has undertaken the suit
property for redevelopment & MBR&R Board has issued NOC in favour
of the applicant on 21/10/2014 after submission of proposal by the
applicant in that regard by obtaining consent of the tenants of the suit
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property. He argued that MBR&R Board has issued AnnextureII
wherein, name of defendant No.1 is reflected as person eligible for
alternate permanent accommodation in lieu of suit premises. He argued
that IOD has been issued by BMC to applicant in August2016 and as
per the conditions of IOD, applicant is required to demolish the existing
structures including the structure of suit premises standing on the suit
property before starting the work of construction but applicant is unable
to comply with the conditions of IOD as this Court has passed an order
of appointment of Court Receiver in respect of the suit premises. He
argued that applicant is ready to handover possession of the alternate
accommodation to the Court Receiver in lieu of the suit premises after
completion of the construction work of the new building. He argued
that since applicant has undertaken the work of redevelopment of the
suit property, applicant is necessary party to the present suit & in the
circumstances, it is necessary to direct the Court Receiver to handover
possession of suit premises to the applicant so as to enable the applicant
to fulfill the conditions of IOD for reconstruction of the suit building.
3. Learned advocate for defendant No.1 submitted that
defendant No.1 has no objection to accept the prayers made in the
Chamber Summons but applicant shall be directed to pay the amount of
rent of transit accommodation to defendant No.1 & to handover
possession of alternate permanent accommodation to defendant No.1.
4. As against this, learned advocate for the plaintiffs argued
that applicant is neither necessary nor proper party to the suit as suit is
filed for recovery of possession of suit premises under Section 6 of
Specific Relief Act. He argued that if the suit premises is demolished by
the applicant, the suit filed for recovery of possession of suit premises
will become infructruous hence, prayers made in Chamber Summons by
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the applicant cannot be accepted. In support of his argument, learned
advocate for the plaintiffs has placed reliance on the observations of
Hon'ble Bombay High Court in a case of Renuka @ Tarini Tarachand
Takumal Vs. Vinay Vinod Kaval reported in LEX(BOM)2013 10 247. I
have gone through said authority.
5. At the first instance, it would be apposite to mention here
that it is not in dispute that as per Order passed in Writ Petition
No.3962 of 2011, Hon'ble High Court was pleased to appoint Court
Receiver in respect of the suit premises. It is also not in dispute that as
per order dt.11/09/2012 passed in Notice of Motion No.262/2012, this
court has directed that appointment of Court Receiver shall continue till
final disposal of this suit & defendant No.1 is appointed as agent of
Court Receiver. Admittedly, defendant No.1 is presently occupying the
suit premises as agent of the Court Receiver. Perusal of the copies of
documents produced by the applicant shows that NOC is issued in
favour of the applicant for redevelopment of the suit property. Learned
advocate for applicant argued that it is necessary for the applicant to
demolish the structures standing on suit property before starting
construction on the suit property, as per conditions of IOD. Applicant
has produced the copy of the IOD issued by the MCGM on 19/08/2016
which has supported the argument advanced to that effect by learned
advocate for the applicant. The question for consideration is whether
the applicant is necessary and proper party to the suit? Thereafter, the
next question for consideration would be whether the prayer made by
the applicant can be accepted for issuing direction to the Court Receiver
to handover possession of suit premises to applicant for its demolition?
6. Order 1 Rule 10 of CPC empowers the Court to add any
person as party to the suit, if presence of said party is necessary in order
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to enable the court to effectively & completely adjudicate upon & settle
all the questions involved in the suit. In the matter in hands, plaintiff
has come with a case that he was in possession of the suit premises and
defendant No.1 has forcefully dispossessed him from the suit premises.
Perusal of the plaint shows that suit is filed under Section 6 of Specific
Relief Act for recovery of possession of suit premises. Suit filed under
Section 6 of said Act is based on previous possession of the plaintiff over
the suit premises and his illegal dispossession at the hands of defendant.
Apparently the controversy involved in the suit is revolving around the
previous possession of plaintiff & his alleged dispossession at the hands
of the defendant. Applicant is not concerned in any manner with the
said controversy even though applicant is claiming itself to be landlord/
owner of the suit property hence, presence of the applicant is not at all
essential in the suit for deciding the controversy involved in the suit in
that regard. Applicant has nowhere clarified in the affidavit filed in
support of the Chamber Summons as to how the presence of applicant
is necessary in the suit for deciding the said controversy. Having regards
to those aspects of the matter, I hold that applicant is neither necessary
nor proper party to the suit hence, prayer made in Chamber Summons
for adding applicant as party defendant to the suit cannot be accepted.
7. So far as the prayer made in the Chamber Summons for
issuing direction to the Court Receiver to handover possession of suit
premises for its demolition purposes is concerned, it may be stated that
since the applicant is found to be not necessary & proper party to the
suit, said prayer cannot be accepted. Furthermore, Section 6 of Specific
Relief Act nowhere authorizes the court to direct either party to the suit
to remove the structure of the suit premises or any other structure
standing on the suit property. I do agree with the argument of learned
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advocate for the plaintiffs that the suit will become infructuous if the
structure of the suit premises is demolished pending final disposal of
the suit. The fact that applicant is ready to handover the possession of
the alternate permanent accommodation to the Court Receiver is not
sufficient for accepting the argument of learned advocate for applicant
that interest of the plaintiff would be protected by issuing necessary
directions in that regard by this court. The plaintiffs cannot be non
suited by allowing the applicant to demolish the suit premises may be
for redevelopment purposes.
8. There is yet another aspect of the matter which needs
consideration. Copy of AnnextureII produced by the applicant shows
that name of defendant No.1 is mentioned therein as person eligible for
alternate permanent accommodation in lieu of suit premises. Perusal of
the copy of letter dt.30/08/2013 produced by the plaintiffs shows that
plaintiffs had intimated the MBR&R Board about the order of
appointment of Court Receiver passed by the court in respect of the suit
premises despite it, instead of making any reference of the Court
Receiver, name of defendant No.1 is mentioned in the AnnextureII.
Had there been a reference of Court Receiver in AnnextureII and had
the Court Receiver moved application for handing over the possession
of the suit premises for demolition purposes to undertake the process of
redevelopment of the suit property then, there was a scope to hold that
rights of both, plaintiff as well as defendant No.1, in respect of the suit
premises are well protected pending final disposal of the suit. It being
not the fact situation, the prayer made by applicant cannot be accepted.
9. Again, having given a thoughtful consideration to the
reliefs claimed in this Chamber Summons and the relief claimed in the
suit, I am of the view that if the applicant is arrayed as defendant to the
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suit, the nature of suit will change. The nature of the suit will not then
be suit under Section 6 of Specific Relief Act & plaintiffs will have to
prove their eligibility for the alternate permanent accommodation in
lieu of the suit premises. The scope of Section 6 of Specific Relief Act
does not permit the court to change the nature of the suit as such under
the guise of adding the applicant as party defendant to the suit and that
count also, the prayers made in the Chamber Summons by the applicant
cannot be accepted.
10. Before passing the final order, it may be stated that it is
now brought to the notice of this court that Hon'ble High Court is
pleased to direct this court to dispose off the suit expeditiously. Matter
is at the stage of recording evidence & this court will make every
endeavor to dispose off the suit as expeditiously as possible as is
directed by Hon'ble High Court.
Thus, for all the reasons mentioned above, holding that
applicant is not entitled for any of the reliefs claimed in the Chamber
Summons, I pass the following order.
O R D E R
Chamber Summons No.635/2019 stands rejected.
Date: 02/05/2019. (P.P.RAJVAIDYA)
Dictated on : 02/05/2019. Judge, C.R.No.12,
Transcribed on : 02/05/2019. City Civil Court,
Checked on : : 03/05/2019. Gr.Bombay.
Signed on : 03/05/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
03/05/2019 at 11.30 a.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 02/05/2019
Order signed by P.O. on 03/05/2019
Order uploaded on 03/05/2019
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