Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC01-003476-2019. .1. CH/S No.686/2019 in
L.C. Suit No. 2563/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 686 OF 2019.
IN
L.C. SUIT NO. 2563 OF 2018.
Murtuza Ali Shaikh and the Others. ............….. …. PLAINTIFFS.
V/s.
M.C.G.M. +1. ….………………………….…….. …. DEFENDANTS.
And
Ushakiran Hirendra Singh. ..……………………. …. APPLICANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 17th September, 2022.
APPEARANCES :
Mr. Milind Deshpade, Ld. Advocate for Plaintiffs.
Mrs. Jyoti V. Mhatre, Ld. Advocate for Defendant No. 1/MCGM.
Mr. J. S. Keni, Ld. Advocate for Defendant No. 2.
Mr. Dharmendra Joshi, Ld. Advocate for the Applicant.
*****
01. The applicant- Ushakiran Hirendra Singh has taken out this
Chamber Summons (for short ‘Ch/s’.) for directing the plaintiffs to carry
out the amendment in the form of her addition as party defendant No. 3
and description of her plots in the plaint. She also prayed for staying the
Order dtd.12.12.2018, passed on Draft NM taken out be defendant No.2
and the Order of 06.03.2019, on NM No.387/2019. Perused the Ch/s.,
her accompanying affidavit, reply of the plaintiff and defendant No. 2.
Heard the advocates for the applicant and defendant No.2. The plaintiff
remained absent to argue on this Ch/s..
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether presence the applicant is
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CNR NO. : MHCC01-003476-2019. .2. CH/S No.686/2019 in
L.C. Suit No. 2563/2018.
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle the questions involved
in the suit ?……..................................... …. No.
(ii). What Order ? .............…....................... …. As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By this Ch/s., the applicant contended that prior to June,
2003, Mr. Pratapsingh Soorji Vallabhdas and the others were having the
plots admeasuring about 42,500 sq. mtrs. and 29,500 sq. mtrs., bearing
Survey No. 112-A, corresponding CTS No.4 (P), Hariyali Village, Kurla.
Both the plots were adjacent to the boundary of Village Tirandaz, Kurla.
Her husband - Mr. Hirendra Singh was carrying his business on the plot,
admeasuring 42,500 sq. mtrs,. in the name of 'M/s. United Karanataka
Quarry Corporation' and on the plot admeasuring 29,500, in the name
of 'M/s. Morarjee and Co.' as Quarry licensee. In due course of time, by
way of the Conveyance Deeds of dtd. 01.06.2003 and 16.06.2003, both
the said plots were transferred/assigned to him. He died on 16.5.2006,
leaving the Will/the Testament dtd. 11.05.2003 and thereby bequeathed
all his properties, including the said two plots, in her favour. During his
lifetime, late Hirendra applied for fixing boundaries of the said plots of
the applicant and defendant No. 2 before the then Collector. However,
he did not get any response. In the year of 2008, the said Survey Officer,
Mulund, surveyed the plots of applicant, defendant No. 2 and also put
boundaries of Village Hariyali and Tirandaz by way of the ETS machine.
As such, on 03.05.2008, he prepared the report. However, in this report
the area of about 1982.9 sq. mtrs. was found neither forming part of the
village Hariyali nor Tirandaz. This was the 'no man’s land' and it was so
shown between lands of this applicant’s and defendant No.2. Since last
6 months, he started the preparations for construction on his land. On
14.03.2019, near about 300 persons gathered on his land and some of
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them, by entering on her land, wanted to put Patra boundary. This issue
was resolved by the concerned Police Officer and at that time, she knew
that the plaintiff and defendant No. 2 filed this suit in collusion and he
secured some of the Orders. Defendant No.2 also proposed to construct
the compound wall, which is illegal. He can’t construct compound wall
and patra boundary on any part of property, which does not belong to
him. In fact, he misused machinery of this Court and also committed the
Offence of perjury. On this backdrop, it is necessary that this applicant
be joined as party to the suit. In reply, the plaintiff admitted this Ch/s.,
substantially, barring the fact that he filed this suit in the collusion with
defendant No.2. Whereas, defendant No. 2 resisted this Ch/s. mainly on
the ground that the applicant has no cause of action to file the same.
04. Having considered the rival submissions, at the outset, it is
pertinent to note that this Ch/s. is moved U/O. I Rule 10 of the CPC for
addition of the applicant. Hence, to decide the same in proper prospect,
it is necessary to verify the plaint averments. On perusal of the plaint, it
seems that the plaintiffs are posing themselves as the occupiers of their
respective plots. It is their grievance that on 14.09.2018, this defendant
No. 2 started his construction activities by digging ‘their way’. By doing
so, he intended to completely block the said way and when they resisted
him, he threatened them. They also contended that they, along-with the
others, resided in their respective houses and used the said right of way,
from the property of defendant No.2. In the circumstances, they had to
file this suit, for the reliefs of declaration and perpetual injunction.
05. Now, by this Ch/s., the applicant is presenting herself as the
owner of the said plots. She contended that defendant No. 2 misguided
the Court and also tried to deceive the police by securing the Orders of
this Court. He is intending to construct the said compound wall on the
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property, not belonging to him. Even the issue as regards the boundaries
of the said Villages is still pending. Considering her grievance, here, it is
worth notable that the scope of this suit is very restricted. Moreover, the
cause of action, allegedly accrued in her favour, is independent one and
therefore, the same can not be mixed with the present suit. No relief is
sought against her. Nor, even it is the plaintiffs’ stand that her interest is
involved in subject matter of this suit. Certainly, the disputes in between
the applicant and defendant No. 2 are not in issue before this Court and
as such, she can't be allowed to extend the scope of suit. Needless to say
that she has an independent cause of action, which can not be decided
in this suit. True it is that the plaintiffs substantially admitted this Ch/s..
However, even their consent would not operate as an estoppel against
the provisions of Law. Nor, their consent would exempt the applicant to
establish that she is either the necessary or proper party in the suit. In
the circumstances, taking into account the restricted nature of this suit
and the reliefs claimed on trial, the applicant's presence and inclusion of
her plots in the plaint are not required for effective decision of this suit.
Hence, I answered point No.1 in the negative and in the answer to point
No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 686/2019 stands dismissed.
(ii). Chamber Summons No. 686/2019, is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 17.09.2022. City Civil Court, Mumbai.
Dictated on : 17.09.2022.
Transcribed on : 19.09.2022 & 20.09.2022.
checked on : 21.09.2022.
Signed on : 22.09.2022.
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CNR NO. : MHCC01-003476-2019. .5. CH/S No.686/2019 in
L.C. Suit No. 2563/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26.09.2022 at 04.05 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 17.09.2022.
Judgment/Order signed by P.O. on 22.09.2022.
Judgment/Order uploaded on 26.09.2022.
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