Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No. 46718 in MA NO.9612 in E.P.NO. 25312 LCSU 90409
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO.467 OF 2018
(CNR No.MHCC010031952018)
IN
MISC. APPLICATION NO.96 OF 2012
(CNR No.MHCC010164002012)
IN
EXECUTION PETITION NO.253 OF 2012
IN
LONG CAUSE SUIT NO.904 OF 2009.
(CNR No.MHCC010024362009)
Miss. Shaheen M.A. Bakshi & Ors. }...INTERVENER.
VERSUS
Sanjay Harishchandra Chavan&Ors. }...DECREE HOLDERS/
(ORIGINAL PLAINTIFFS)
AND
Maharashtra Housing and Area }...JUDGMENT DEBTORS/
Development Board and Ors. } (ORIGINAL DEFENDANTS)
Shri.Baugwala, learned advocate for the intervenor.
Shri.Rasal, learned advocate for the obstructionists.
CORAM: HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 04/05/2019)
1. By filing this Chamber Summons, intervenor has prayed to
allow the intervenor to intervene in Misc.Apln.No.96/2012 and to direct
the obstructionists to add the intervenor as appropriate party/defendant
to said Misc.Application. Read the affidavit filed in support of Chamber
Summons, reply filed by obstructionists & rejoinder filed by intervenor.
Heard learned Shri.Baugwala advocate for the intervenor and learned
Shri.Rasal advocate for the obstructionists. I have also gone through the
written notes of argument filed by learned advocate for the intervenor.
Perused the entire record.
2. Learned advocate for the intervenor argued that suit flat
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No.205 is allotted to intervenor by defendant No.3 in lieu of Room
No.12 of uncle of intervenor as per allotment based on lottery system &
intervenor is the lawful allottee & rightful owner of said flat No.205. He
argued that intervenor is member of plaintiff No.11/Afzal Cooperative
Housing Society & as such, intervenor is entitled to protect her interests
in suit flat No.205 of which, the Society was bound to deliver possession
to intervenor but it failed. He argued that obstructionist No.7 has no
rights in the said flat, name of the obstructionist No.7 was not included
in the ScheduleII & obstructionist No.7 is illegally occupying the suit
flat No.205. He argued that obstructionist No.7 is claiming rights over
Flat No.205 which is legally allotted to the intervenor & in view of the
reliefs claimed in Misc.Application by obstructionists, it is necessary to
direct the obstructionists to join the intervenor as party to the
Misc.Application filed by them for claiming independent rights in suit
flat No.205 & few other flats. In support of his argument, learned
advocate for the intervenor has placed reliance on following authorities.
i)Razia Vs. Sahebzadi reported in AIR 1958 SC 886.
ii)Judgment dt.30/07/2015 of Hon'ble Karnataka High Court in
Writ Petition No.813637/2015 & Writ Petition No.868889/2015
in a matter between N.H.Shivamurthy Vs. Sri.Mark Gomez & ors.
I have gone through those authorities.
3. As against this, learned advocate for obstructionists argued
that intervenor has filed this Chamber Summons at the instance of the
Society with an intention to delay the hearing of Misc.Application filed
by the obstructionists & intervenor does not have any rights in the suit
flat No.205. He argued that obstructionist No.7 is in lawful possession
of suit flat No.205 & he has filed the Misc.Application jointly with other
obstructionists for obstructing the execution of consent decree obtained
fraudulently in suit by the original plaintiffs & defendant No.3, as
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obstructionists have independent rights in their respective suit flats. He
further argued that intervenor is claiming herself to be member of the
plaintiff No.11/Society & it is not necessary to join each & every
member of the Society as party to the proceedings when the Society
itself is party to the proceedings. He argued that intervenor cannot
establish her so called independent rights in respect of suit flat No.205
in the Misc.Application filed by obstructionists & intervenor can file
separate Misc.Application/obstructionist proceedings for establishing
her those so called independent rights due to which, Chamber
Summons is liable to be rejected.
4. It is not in dispute that Consent Decree dt.23/09/2011 is
passed in Long Cause Suit No.904/2009 on the basis of consent terms
entered into between original plaintiffs & defendant No.3 on 26/7/2011.
Admittedly, plaintiffs have put said Consent Decree for execution by
filing Execution Petition No.253/2012 & obstructionists have obstructed
execution of said decree by filing Misc.Application No.96/2012 by
contending that said Consent Decree is not binding on them, it is not
executable & to declare that obstructionists are the exclusive owners of
suit flat Nos.A701, A702, C303, C105, C106, C205, C305, C306,
C406, D101, D201 and D301. Relief is also claimed to permanently
restrain the plaintiffs and defendant No.3 from disturbing into the
peaceful possession of the obstructionists over their respective suit flats
and to declare that plaintiff and defendant No.3 do not have any rights
or authority to deal with or to change or alter or reallot the suit flats
belonging to the obstructionists. Intervenor is claiming that suit flat
No.C205 belongs to her, it is illegally occupied by obstructionist No.7
and said obstructionist No.7 is claiming that he has independent rights
in respect of the said suit flat due to which, intervenor must get an
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opportunity to contest the Misc.Application filed by the obstructionist
for obstructing the execution of decree. The question for consideration
is whether the intervenor is proper & necessary party to the said Misc.
Application which is in the form of Obstructionist Proceedings under
Order 21 Rule 97 of CPC?
5. At the first instance, it may be stated here that Rule 101 of
Order 21 CPC prescribes that all questions including the questions
relating to right, title or interests in the property arising between the
parties to a proceeding on an application filed under Rules 97 or 99 or
their representatives and relevant to the adjudication of the application
shall be decided by the Executing Court dealing with such application
and not by a separate suit. It is now well settled that such a proceeding
is in the nature of a suit. Since the nature of said proceedings is in the
nature of a suit, to my mind, provisions of Order 1 Rule 10 of CPC are
very much applicable in such a proceeding which prescribes the
provision for adding or striking out the parties. The fact that Chamber
Summons is mentioned to have filed under Section 151 of CPC will not
debar this court from deciding it as per provisions of Order 1 Rule 10 of
the Code of Civil Procedure.
6. Intervenor has contended that she is member of Afzal Co
operative Housing Society. Admittedly, said Society was party plaintiff
No.11 to the suit. Intervenor has contended that suit flat No.205 is
allotted to her by defendant No.3/N.A.N.Developers Pvt. Ltd. as
alternate permanent accommodation in lieu of Room No.12 of her uncle
Mohd. Akhtar by Lottery System in the Afzal Chawl. Her said contention
is prima facie acceptable at this stage as it is supported by copy of letter
of allotment dt.15/03/2012 produced on record by her in support of the
Chamber Summons. Obstructionist No.7 has contended that said letter
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of allotment is void in view of the order dt.23/02/2018 passed by
Assistant Commissioner. Perusal of copy of said order shows that
direction is issued to take action for eviction against the occupants who
are not found in demand register & whose transfer applications are not
decided by MCGM. Perusal of entry at Sr.No18 in the copy of Inspection
Report produced by obstructionist No.7 shows that obstructionist No.7
has applied for transfer of suit flat No.205 to MCGM. Obstructionist
No.7 has not contended that his transfer application is decided in his
favour. Apparently, there are rival claims of obstructionist No.7 and
intervenor in respect of suit flat No.205 as both of them are claiming
independent rights & title in respect of the said flat.
7. In a case of N.H.Shivamurthy Vs. Mark Gomez cited above
on which reliance is placed by learned advocate for the intervenor, the
respondent No.2 therein had filed application for impleading him as
party decree holder to the Execution Petition on the basis of Will
executed in his favour by his deceased brother who was the decree
holder. Hon'ble Karnataka High Court has held that trial court is
justified in giving an opportunity to respondent No.2 to contest the case
for proving his title based on the Will. It is held that said respondent
No.2 can adjudicate his grievance in the Executing Court on the basis of
the Will which relates to the same party, though he was not party to the
original suit. In the matter in hands, intervenor has not prayed to
implead her as decree holder to the Execution Petition. She has prayed
to implead her as party to Misc.Application which is in the form of
obstructionist proceedings. Facts of the present case are thus different
than the facts in the matter before Hon'ble Karnataka High Court.
8. It is the contention of the intervenor that she is member of
plaintiff No.11/Afzal Cooperative Housing Society. Learned advocate
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for intervenor submitted that intervenor being the member of Afzal Co
operative housing Society, the intervenor was impliedly party to the
original suit as the society was party plaintiff No.11 to the suit. He
submitted that the society is not representing and protecting the interest
of intervenor in proper manner and intervenor is having independent
rights in respect of one of the suit flat bearing No.C205 due to which,
the intervenor is necessary to be heard in the Misc.Application as
obstructionist No.7 is claiming interest/ownership in respect of said flat.
9. As mentioned earlier, there are rival claims in respect of
flat No.C205 as obstructionist No.7 and intervenor are claiming
independent rights, title & interests in the said flat. Since the intervenor
has raised a contention that she was impliedly party to the original suit
in capacity of member of Afzal Cooperative Housing Society, there is
no question of again joining her as party to the Misc.Application filed by
the obstructionists for obstructing the execution of the Consent Decree
passed in the suit. Intervenor can appear as a witness on behalf of the
society if she has independent claim and she can thereby disprove the
claim of obstructionist No.7 in respect of suit flat No.C205. Again, she
can very well file separate obstructionist proceedings to prove her
independent rights, tile and claim, if any, in the said flat. While
deciding the obstructionist proceedings taken out by the obstructionist
No.7 along with other obstructionists in the form of Misc.Application, as
mentioned earlier, intervenor can appear as a witness and produce all
the relevant documents to disprove the claim of obstructionist No.7 in
respect of the said flat and thereby, she does not appear to be necessary
party to present Misc Application. For all these reasons, I could not find
any force in the argument of learned advocate for the intervenor that
intervenor is necessary party for deciding the Misc.Application taken
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out by the obstructionist No.7 in respect of suit flat No.205 and hence
holding that Chamber Summons is liable to be dismissed, I pass the
following order.
O R D E R
Chamber Summons No.467 of 2018 stands rejected.
Date: 04/05/2019. (P.P.RAJVAIDYA)
Direct dictated on : 04/05/2019. Judge, C.R.No.12,
Checked on : 06/05/2019 City Civil Court,
Signed on : 06/05/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06/05/2019 at 11.00 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 04/05/2019
Order signed by P.O. on 06/05/2019
Order uploaded on 06/05/2019
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