Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1357/18 in Suit 380/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1357/2018
(CNR No.MHCC010042982018)
IN
S.C. SUIT NO. 380/2018
Sanjay S. Mandlik .. Applicant
In the matter of ;
Jyoti Prakash Karane .. Plaintiff.
V/s.
1. Sanjay Sudam Mandlik
2. Shivraj Sudam Mandlik ..Defendants
Appearance:
Adv. Mandavkar for plaintiff.
Adv. Mr. Girish Thakur for defendant no.1
Adv. Mr. Ishan Sayyad for defendant no.2.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 2.12.2019
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by defendant
no.1/ applicant praying for rejection of plaint on the ground of non
joinder of necessary party under Order 1 Rule 13 of CPC. It is also
prayed that, pending hearing and decision on this Motion, the
proceedings and hearing of the N/M No.841/18 and Suit No.380/2018
may be stayed. The Motion is supported by an affidavit of the applicant/
defendant no.1. The plaintiff has opposed the Motion by submitting
affidavit in reply. Seen and considered the same.
2. I have heard oral submissions of Ld. Counsels for both sides
on the Motion.
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3. It is submitted that, the plaintiff has filed present suit
against defendants seeking various reliefs, including declaration and
injunctions. It is submitted that, suit as framed an filed against
defendants is not maintainable in law for nonjoinder of the necessary
party. The plaintiff has claimed right in the property, which actually
belongs to the Municipal Corporation, therefore such declaration cannot
be granted by the court unless Municipal Corporation is made party to
the suit. It is next submitted that, the suit as framed and filed by the
plaintiff is not maintainable also on the ground that the plaintiff is
claiming 1/5th share/ right as heir of deceased Mr. Sudam Mandlik.
The plaintiff has suppressed material facts from the court and has not
disclosed that there are two more legal heirs of late Sudam Mandlik i.e.
Mrs. Savita Adhao and Mrs. Kiran Mawadiya, in the absence of these
two legal heirs no declaration, as prayed in the suit, can be granted.
Hence, it is prayed that the suit filed by the plaintiff is liable to be
dismissed under Order 1 Rule 13 of CPC.
4. Per contra, Ld. Counsel for the plaintiff has opposed the
Motion and it is submitted that, the Motion and grounds stated therein
are devoid of any merit and substance. The Motion itself is
misconceived and not maintainable in law. It is liable to be dismissed.
The defendant no.2 is only trying to delay the proceedings in the suit
for seeking stay of the suit as well as N/M No. 841/18, which amounts
to abuse of process of law. Ld. Counsel for the plaintiff further argued
that, the plaintiff's claim in the suit is for personal benefit and relief and
her claim is not for partition or administration of joint family property.
It is submitted that, the plaintiff has not claimed any relief against
MCGM and therefore, MCGM is not necessary party in the present suit.
Hence, it is urged that, the Motion is liable to be dismissed.
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5. I have gone through the Motion and affidavit in reply filed
on behalf of the plaintiff and taken into consideration oral submissions
made by Ld Counsels for both sides. From the pleadings in the plaint as
well as averments made therein and prayer clause, it is seen that, the
plaintiff is a daughter of late Sudam Mandlik, who was partner of one
unregistered firm and died on 29.1.2016. Defendants no.1 and 2 are
brothers of plaintiff and sons of said deceased and also surviving
partners of the partnership firm M/s S.M. Caterers. The suit property
i.e. Gala No.543, Meenatai Thakeray Flower Market, Senapati Bapat
Marg, Dadar(W), Mumbai is a place from where the said firm was
carrying its business of catering running a canteen for the owners,
employees and visitors at the said flower market. The suit premises
were allotted by way of auction to deceased Sudam Mandlik. As per
Clause 18 of the Partnership Deed dated 17.3.2009, the plaintiff is
entitled to be admitted as partner/ share holder in the unregistered
firm.
6. On the above factual background, it was submitted that,
Sudam Mandlik was having 50% of share; Sanjay Mandlik (defendant
no.2) having 25% and Shivraj Mandlik (defendant no.2) having 25% of
share in the said unregistered partnership firm. The plaintiff is entitled
as legal heir of late Sudam Mandlik to her proportionate share in the
unregistered firm. Considering the various reliefs claimed in the prayer
clause by the plaintiff, it can be seen that, the plaintiff is claiming that
she is entitled for declaration as her right as legal heir of late Sudam
Mandlik, to be joined in the partnership/ having household rights,
entitled for share in the business of the firm in the suit premises and
other consequential reliefs of injunction , appointment of court receiver
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etc.
7. If the provisions of Order 1 Rule 13 of CPC are examined, it
can be seen that, the objections as to nonjoinder or misjoinder are
required to be taken at the earliest possible opportunity and for all cases
at the stage where issues are settled or before settlement of the issues
unless grounds for taking such objections have arisen after settlement of
the issues.
8. It is true that, MCGM and other two legal heirs of late
Sudam Mandlik i.e. Mrs. Savita Adhav and Mrs. Kiran Mawadiya are
proper parties, if joined in the suit as suit premises i.e. Gala No.543,
Meenatai Thakeray Flower Market, Senapati Bapat Marg, Dadar(W),
Mumbai as it was allotted to late Sudam Mandlik by auction. It is also
true that, other two legal heirs are also entitled to have their shares in
the business of the unregistered firm run from the suit premises.
However, I am of the view that, they are not necessary parties because
the plaintiff has approached this court by filing present suit claiming her
own rights as legal heir of late Sudam Mandlik and declaration as to her
legal status as such in respect of her rights and entitlement on that
basis. Furthermore, defendants have appeared in the suit long back and
suit has proceeded thereafter. The aspect whether MCGM is necessary
party in the suit or not can be considered by the plaintiff and she can
take steps to join them as party to the Suit. The Court can decide this
aspect during trial of the case. Similarly, at the time of framing of
issues, the court can frame an issue in that regard also. But, that will be
a matter of trial. Hence, I proceed to pass following order :
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ORDER
1. Notice of Motion No.1357/2018 is hereby dismissed
as not maintainable in law.
2. Suit shall proceed further for trial and decision as per
law.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 2.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 2.12.2019
Typed on : 4.12.2019
Draft given on 4.12.2019
Signed by HHJ on : 5.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.12.19
TIME: 12.09 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 3.12.19
Judgment/ order signed by P.O on 5.12.19
Judgment/ order uploaded on 6.12.19
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