Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS no. 726-19 in L.C.SUIT no.884-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 726 OF 2019
(CNR no. MHCC010036882019)
IN
LONG CAUSE SUIT NO. 884 OF 2019
(CNR no. MHCC010153682018)
Sushma Vijay Chavan ]
Aged 51 years, Occ : Business ]
residing at Building no.29, Room no.202/B, ]
Subhash Nagar, Chembur, Mumbai 400070. ]....Plaintiff
V/s
1. The Municipal Corporation of Gr. Mumbai ]
Mahapalika Bhavan, Mahapalika Marg, ]
C.S.T., Fort, Mumbai 400 001. ]
2. The Assistant Commissioner, ]
MWest Ward, Sarabhua Acharaya, Mumbai 400071.]....Defendants
AND
Mrs. Vijaylaxmi Saini Nee Vijaylaxmi ]
Chatar Singh Chauhan ]
Aged 67 years, Occ : Profession as Advocate ]
having her office at Shop no.6, situated at plot of land ]
bearing Plot 1309/1,2,3, C.T.S. No.1308/4, ]
Survey no.413448, Kabali Wadi, Opp: Maharana Hotel ]
Building, Chembur Naka, Mumbai 400 071. ]....Applicant
Appearances:
Ld. Advocate Mr. Nishigandh N. Patil for the Plaintiff.
Ld. Advocate Mr. S. C. Khandagale for defendants no.1 & 2.
Ld. Advocate Mr. Pratap Singh for applicant.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 4th November, 2019
O R A L O R D E R
1. The instant Chamber Summons has been taken out by the
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2 CS no. 726-19 in L.C.SUIT no.884-19
applicant for joining her as defendant no.3 in the suit claiming that she
is coowner of the suit premises along with plaintiff, Mrs. Renu Jayant
Todai and Mrs. Asha Vinod Chauhan. It is also contended that she
instituted suit no.1154 of 2018 against present plaintiff not to cause any
obstruction, annoyance and/or interfere with part portion of her
premises along with open space thereof and to negate the possible
outcome of the said suit the plaintiff has instituted this suit without
adding the applicant as party. Ld. Advocate for the applicant has
vehemently submitted that at the applicant's instance the defendant
no.1/MCGM has taken action against the illegal acts of the plaintiff and
being a coowner of the suit premises she is necessary party to the suit.
2. The plaintiff has filed affidavit in reply contending that there is
no cause of action against present applicant, the grievance of the latter
against plaintiff herein is heard in suit no.1154 of 2018 and protection
is granted to her in notice of motion no.2713 of 2018. It is also
contended that same prayers are made in the present chamber
summons and the above notice of motion therefore, the chamber
summons is barred by principle of res judicata.
3. After going through the plaint, the description of the suit
premises is given in paragraph no.4 as "the portions from plot no.413
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3 CS no. 726-19 in L.C.SUIT no.884-19
and 448 and CTS no.1309/02 as shown in the sketch of the suit
premises (Exh. B)”. From the above description it can be said that the
relief of permanent injunction against the local authority viz.
defendant/MCGM is sought for not removing any stock and material of
the plaintiff lying in the said suit premises. It is alleged in plaint
paragraph no.13 that the officer of defendant/MCGM visited suit
premises on 05.12.2018 and threatened the plaintiff that they would
remove the material stored by him and in doing so they merely acted
upon complaints without following due process of law.
4. If the plaint in S.C. Suit no.1154 of 2018 is perused, the applicant
herein claims relief of declaration, partition and permanent injunction
against present plaintiff and other two persons in respect of suit plot of
land along with structure i.e. plot no.1309/2 and 3, C.T.S. no.1308/4,
Survey no.413448, Kabali Plot, Opposite Maharana Hotel Building,
Chembur Naka, Mumbai400 071. In the notice of motion no.2713 of
2018 taken out by the applicant herein in that suit, the Civil Court has
granted temporary injunction in her favour and restrained plaintiff
herein from storing articles, tiles and other goods in front of the office
of the plaintiff in the corridor/open space outside the chamber of the
plaintiff. From the averments made in both suits, entitlement of the
plaintiff to the share in the larger plot of land is under challenge in
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4 CS no. 726-19 in L.C.SUIT no.884-19
another suit no.1154 of 2018 and she is protected against the present
plaintiff by the civil court. In this backdrop the instant chamber
summons will have to be decided. From the averments made in the
plaint in this suit, the plaintiff is aggrieved by the acts of defendant
no.1/MCGM in threatening him to remove the stock and material from
the suit premises without following due process of law. The outcome of
this case has no impact on the rights of the applicant, if any, qua the
suit premises. The scope of this suit challenging above action of the
local authority/ MCGM need not to be widened by adding the present
applicant who already has instituted a separate suit claiming reliefs
against the present plaintiff. For the said reason I do not find that the
present applicant ought to be joined in the present suit. The applicant’s
presence before the Court is not necessary in Order to enable the Court
effectually and completely adjudicate upon or settle all the questions
involved in this suit. Therefore, following order:
ORDER
Chamber Summons No.726 of 2019 is rejected.
(C. V. Marathe)
Judge,
Date : 02.11.2019 City Civil Court, Gr. Mumbai.
Dictated on : 04.11.2019
Transcribed on : 04.11.2019
Signed by HHJ on : 04.11.2019
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5 CS no. 726-19 in L.C.SUIT no.884-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.11.2019 at 4.46 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
04/11/2019
JUDGMENT/ORDER signed by
P.O. on
04/11/2019
JUDGMENT/ORDER uploaded
on
04/11/2019
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