Final Order 1

Order Details: Chamber summons
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.509 OF 2018
IN
S.C.SUIT NO.6896 OF 1997
(HIGH COURT SUIT NO.586 OF 1997)
Sebastian Francis Rodrigues, ... Plaintiff
Versus
1. Dadarao Digambar Taur (Since deceased),
2. Laxmi Dadarao Taur,
3. Surekha Dadarao Taur,
4. Rekha Dadarao Taur (Since deceased)
5. Yashwant Dadarao Taur,
6. Shobha Dadarao Taur,
7. Shantaram Chalke ... Defendants
And
1. Ms. Kareena Taur, … Respondent no.1/
Prop.Deft.no.4(a)
2. Dhanjibhai Gala … Respondent no.2/
Prop.Deft.no.8
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 18th JUNE, 2019
Advocate Mr.Pandey for plaintiff.
Advocate Mr.Sarode for defendant no.2/respondent no.1.
Advocate Mr.Ghadge for respondent no.2.
ORDER
1. This Chamber Summons is taken out by plaintiff for
allowing plaintiff to join respondent no.1 of the chamber summons as
defendant no.4 of the suit after deleting the name of original defendant
no.4 since deceased. The plaintiff has also prayed to allow the
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amendment in the plaint for adding respondent no.2 of the chamber
summons as defendant no.8 of this suit. He has also prayed for allowing
him to amend the plaint as per the schedule annexed to Chamber
summons and for consequential amendments. In this chamber summons
by prayer clauses (d) to (e) plaintiff has claimed reliefs for appointment
of Court Receiver and for temporary injunction restraining defendants
from inducting/disposing off and/or creating any third party right in
respect of the rehab shop/ permanent alternate accommodation in the
rehab building managed and operated by “Jay Hanuman SRA
Cooperative Housing Society”, Plot no.554, TPSIV, Mahim Division,
Senapati Bapat Marg, Dadar(W), Mumbai28. At the outset, it is
necessary to point out here that by way of prayer clauses (d) and (e) of
the Chamber Summons, plaintiff has claimed substantial reliefs.
Further, such reliefs for appointment of Court Receiver and for
temporary injunction, in my opinion cannot be prayed by filing
Chamber Summons and for that purpose notice of motion was expected
to be filed.
2. In support of the chamber summons, the plaintiff has filed
affidavit contending that recently it has been learnt that defendant no.4
expired and respondent no.1 is legal heir of defendant no.4. Therefore,
amendment as sought in prayer clause (a) of the chamber summons is
necessary. Further it is pointed out that in the pendancy of the suit
there was consent terms arrived in between plaintiff, defendants and
respondent no.2 and said consent terms were signed by respective
parties. It was tendered in the Hon'ble High Court on 23rd July, 2009.
Pursuant to those consent terms some orders came to be passed by
Hon'ble High Court in the Notice of motions in which those consent
terms were filed. In said consent terms, it was agreed that possession of
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suit premises should be given to respondent no.2 for redevelopment of
the premises and he shall hand over the possession of rehab shop of the
redeveloped building to plaintiff in lieu of suit premises within 18
months from taking over the possession of suit premises from plaintiff.
In the affidavit plaintiff has also referred other conditions from consent
terms. It is alleged that respondent no.2 has not complied those consent
terms and respondent no.2 took the possession of the suit premises
from plaintiff, demolished the same by reconstructing new premises,
but till this date did not hand over possession of rehab shop to the
Court Receiver or to plaintiff. However, respondent no.2 has given the
possession of rehab shop to defendant nos.2 to 6. As such according to
plaintiff, in view of latest development in the case, amendment is
necessary to be carried out as set out in the schedule of chamber
summons. Hence, plaintiff has prayed to allow the chamber summons.
3. Respondent no.1 of the chamber summons namely
Ms.Karina Shiva Pujari has filed her affidavit and resisted the prayers
from chamber summons contending that this chamber summons is
misconceived and it abuse of process of law. In respect of suit premises,
it is contended that the structure from the suit premises was situated on
the plot which was declared as slum and occupants have formed
Cooperative Society namely Jai Hanuman SRA Cooperative Society.
Respondent no.1 has challenged the jurisdiction of this court for
entertaining this suit contending that there is bar of Section 42 of
Maharashtra Slum (Area, Improvement and Clearance) Act, 1971.
Further according to respondent no.1, there is bar of section 149 of
MRTP Act for trying this suit by this Court. As such according to
respondent no.1 this Court has no jurisdiction to entertain this suit as
well as as Chamber Summons.
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4. It is contended that this suit was dismissed by the Court on
29th July, 2015 and after it on the instructions of slum rehabilitation
authority the rehab of the suit premises was allotted because name of
plaintiff was not appearing in certified copy of AnnextureII issued by
the Competent Authority for implementation of rehabilitation scheme.
Further instead of plaintiff the name of defendant no.2 Smt.Laxmi
Dadaro Taur is shown in AnnextureII as the eligible person for getting
rehab in lieu of suit premises. As such according to respondent no.1
SRA authority is necessary party to the suit and plaintiff has not
impleaded said authority therefore, the suit is not maintainable as well
as chamber summons also is not maintainable. Not only it according to
respondent no.1, defendant no.2 was the only eligible person to have
permanent alternate accommodation in lieu of suit premises and SRA
authority has given it to her therefore according to respondent no.1 she
is not necessary party to this suit.
5. It is contended that defendant no.4 Rekha Dadarao Taur
i.e. Rekha, wife of Shiva Pujari expired on 28th August, 2003 leaving
behind respondent no.1 as her legal heir. This suit was filed in the year
1997. However after death of defendant no.4 no steps are taken by
plaintiff to bring on record LRs of defendant nos.4 and 6, the chamber
summons is taken out in the year, 2018 which is beyond limitation.
With the help of this contentions respondent no.1 has prayed to dismiss
the chamber summons.
6. I have heard the plaintiff's advocate Mr.Pandey and
advocate Mr.Ghadge who is representing respondent no.2 in this
matter. Advocate Mr.Pandey submitted that this suit was dismissed in
the year, 2015 and thereafter, the suit property was given by slum
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dwellers' society to developer for its redevelopment. It is argued that
suit premises was given by plaintiff to the developer on the basis of
consent terms filed before Hon'ble High Court on 23rd July, 2009.
However, after redevelopment respondent no.2, the developer, has
handed over newly developed premises to defendant no.2 in lieu of the
suit premises. It is argued that this suit came to be restored in the year,
2018. Thereafter, plaintiff's advocate came to know about death of
defendant no.4 hence this chamber summons is taken out for bringing
LRs of deceased defendant no.4 on record and further to bring on
record subsequent events in the matter. Advocate Mr.Ghadge has
argued on behalf of respondent no.2 that after dismissal of this suit as
shown in AnnextureII prepared by SRA authority the name of
defendant no.2 was shown as eligible person for receiving redeveloped
premises in lieu of suit premises. Therefore, in the year, 2015 itself
respondent no.2 had handed over possession of redeveloped premises to
defendant no.2 and therefore, LRs of defendant no.2 are not necessary
to be brought on record.
7. I have given serious consideration to the arguments
advanced on behalf of the parties. I have perused the plaint, documents
annexed to the plaint, death certificate of defendant no.4 which is
annexed to the affidavit of reply of chamber summons. I have also
perused the copy of AnnextureII prepared by SRA authority by which
eligibility of the person is shown for permanent alternate
accommodation in lieu of suit premises. As per AnnextureII, defendant
no.2 was shown as eligible person for permanent alternate
accommodation in lieu of suit premises. Any how, plaintiff is claiming
to be owner of suit premises and he has impleaded defendant no.4 in
the suit as the daughters of defendant nos.1 and 2. As such it can be
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said that plaintiff has right to bring LRs of deceased defendant no.4 on
record. However, admittedly defendant no.4 died in the year, 2003
and this chamber summons is taken out in the year, 2018 i.e. after 15
years of the death of defendant no.4. Thus, it becomes clear that
proceedings of this suit were already abated long back against
defendant no.4 and plaintiff is praying for amendment in the plaint for
bringing LRs of deceased defendant no.4 on record without praying for
condonation of delay of about 15 years which is caused for bringing LRs
of defendant no.4 on record. Unless plaintiff gets condoned said delay
by showing sufficient reason for condoning such delay by filing notice of
motion that effect, I find that this chamber summons cannot be allowed
for permitting plaintiff to amend the plaint for bringing LRs of
defendant no.4 on record. It is pertinent to note here that it is
mentioned in the affidavit filed in support of chamber summons that
after restoration of this suit in the year, 2018, plaintiff's advocate came
to know about death of defendant no.4, however it is not clarified that
from whom the plaintiff's advocate came to know said fact, when or on
which date he came to know said fact and why the delay is not
explained. As such I find that prayer clause(a) of chamber summons
cannot be allowed.
8. In respect of adding defendant no.2 developer as defendant
no.8 of this suit, I find that respondent no.2 developer has redeveloped
suit premises and has handed over possession of redeveloped
permanent alternate accommodation to defendant no.2 on the basis of
AnnextureII which was prepared by SRA authority. Thus, in my opinion
prima facie it becomes clear that developer respondent no.2 has no
concern with plaintiff's claim from this suit. Developer was having the
role only for redevelopment of the suit premises and he has done said
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redevelopment as per the directions of SRA authorities and therefore, in
my opinion, developer cannot be blamed for handing over possession of
redeveloped permanent alternate accommodation to defendant no.2
whose name was appearing as eligible person for permanent alternate
accommodation in lieu of suit premises. As such I find that as defendant
no.2 has developed and completed his work as per the directions of SRA
authority, he cannot be blamed by plaintiff and therefore, in my opinion
respondent no.2 cannot be become necessary party to the just and
proper decision of this suit. One more aspect is necessary to be pointed
out here is that the eligibility list i.e. AnnextureII was prepared by SRA
authority in the year, 2015 and that time this suit was already dismissed
and it is restored in the year, 2018. Further as contended by respondent
no.1 after dismissal of this suit respondent no.2 developer has handed
over possession of redeveloped permanent alternate accommodation to
defendant no.2 therefore, I find that when this suit was dismissed in
default SRA authorities or respondent no.2 could not be blamed for
pendancy of this suit. On this ground also I find that respondent no.2
is not necessary party to this suit. For all above reasons, I find that
prayers made in the Chamber summons cannot be allowed. Hence, I
proceed to pass the following order.
O R D E R
Chamber Summons No.509/2018 stands disposed off/dismissed.
Sd/
18/06/2019 (K.P.NANDEDKAR)
JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 18/06/2019
Transcribed on : 19/06/2019
Signed by HHJ on : 21/06/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/06/2019 4.30PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 18/06/2019
Judgement/order signed by P.O on 19/06/2019
Judgement/order uploaded on 24/06/2019
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