Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/s 632/2018 in Suit 1589/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 632 OF 2018
IN
S.C.SUIT NO. 1589 OF 2017
CNR NO. : MHCC010043412018
Lavu Narayan Amdoskar & Ors. …. Plaintiffs
Versus
Mr. Mohammadali Yusuf Bagdadi & Ors. ….Defendants
And
Eknath Bhikaji Chaskar & Ors. … Respondents
Appearance:
Shri. L.K.Tripathi, Advocate for the plaintiff.
Shri. Madhur Surana, Advocate for defendant no. 7 to 17.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 23.11.2021
ORAL ORDER
(Dictated in open Court)
The Chamber Summons is filed by the plaintiffs to implead
respondent no. 18 to 30 as party to the suit and in Notice of Motion No.
2766 of 2017. The Chamber Summons is supported by Affidavit of Lavu
Narayan Amdoskar, the plaintiff no. 1. The plaintiffs stated that the suit
is filed for various reliefs such as declaration, injunction etc. The
respondents are the original coowners of the suit property purchased
with the plaintiffs from the owners of the suit property by Agreement
dated 29.12.1987. The plaintiffs filed the suit in great urgency and
hurry therefore, could not join other coowners and/or their successors.
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The Respondent no. 8 to 13 are the authorities who are responsible for
the alleged redevelopment and/or sanctioning of plans. Therefore, the
respondents are necessary/proper parties to the suit. Hence, prayed to
allow the Chamber Summons.
2. The proposed respondent Eknath Bhikaji Chaskar filed
reply and prayed for allowing the Chamber Summons. The defendant
no. 7 to 17 filed reply through Affidavit of Tushar Kuvadia, the
defendant no. 8. They have objected to bring on record the proposed
respondents. The defendants stated that the plaintiffs cannot take out
the defence accrued upon defendant no. 7 to 17 by way of present
Chamber Summons. They in the Written Statement have taken out a
defence that the suit is not maintainable for non joinder of proper and
necessary party. There were several other slum dwellers and occupants
who are claiming part ownership in respect of part of property being
CTS No.237 and the slum dwellers/Occupants had filed suit through
same advocate being Suit No. 1404 of 2017, whereby all the
respondents are made party to the suit, therefore the grounds taken in
the Affidavit are false and baseless because the Advocate appearing for
said occupants in Suit No.1404 of 2017 and for the present suit is same.
3. The defendant no. 7 to 17 stated that the proposed
respondent no. 1 to 24 does not exist as on today. The huts/structures
shown in the Title/Schedule of Chamber Summons does not exist as the
same are demolished after necessary evictions orders passed by the
Competent Authority and confirmed by the Appellate Authority, Hon'ble
High Court and Hon'ble Supreme Court of India. The defendants have
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stated the defence raised by them. They are objecting on the ground
that the plaintiffs were well aware that the proposed respondents are
coowners of the suit property and has denied the contents of the
Chamber Summons to implead the proposed defendants in toto.
4. The plaintiff has filed rejoinder Affidavit to the reply of
defendant no. 7 to 17 and have denied the contents of reply to the
Chamber Summons.
5. Heard Advocate Shri.L.K.Tripathi for the plaintiff and
Advocate Shri. Madhur Surana for defendant no. 7 to 17.
6. Advocate Shri. L.K.Tripathi for plaintiff argued that the suit
is filed in urgency, therefore they could not join respondent no. 1 to 7
as party to the suit. They are necessary/proper parties, as they are co
owners of the suit property along with the plaintiffs as per Agreement
executed by them. The presence of these parties are necessary to
effectively adjudicate the dispute. Advocate Shri. Tripathi for plaintiff
has drawn my attention to prayer (e) of the plaint that the Government
Authorities are necessary parties to the suit. Their presence is necessary
to effectively decide the dispute. Order 1 Rule 10(2) of the Code of Civil
Procedure as per order, the Court can Suo muto on application of the
party can implead the necessary/proper party to the suit. Therefore, the
question of the commencement of trial will not arise.
7. On the other hand, Advocate Surana for defendant no. 7 to
17 argued that the defendants have in their Written Statement raised
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defence of non joinder of coowners to counter that the present
Chamber Summons is filed. The plaintiffs were well aware that the
respondents are necessary parties. They have impleaded these parties in
the suit filed by the same Advocate representing the present plaintiffs.
Therefore, the Chamber Summons cannot be allowed as in the similar
Chamber Summons No. 1040 of 2019 in suit no. 1404 of 2017, the
Chamber Summons was dismissed.
8. The plaintiff has filed the suit against the defendant no. 1
to 17 seeking relief of declaration that on execution of the Agreement
dated 30.09.1989, Affidavit dated 02.10.1989 and Power of Attorney
dated 02.12.1989, the plaintiffs have become joint/coowners of the
suit property and the said Agreement dated 30.09.1989, Affidavit dated
02.10.1989 and Power of Attorney dated 02.12.1989 are valid,
subsisting, enforced and binding upon defendants. The other
consequential reliefs in respect of the suit property and their right in the
suit property is sought.
9. The brief facts stated by the plaintiff is that late Mr. Yusuf
Kabir Bagdadi was the landlord of the suit property who died intestate
leaving behind him his wife Amina Yusuf Bagdadi and defendant no. 1,
2 and 3 as his heirs and subsequently Mrs. Amina too died intestate
leaving behind defendant no. 1 to 3 as her heirs, who had sold the suit
property to the plaintiff no. 1's father late Shree Narayan Vishnu
Amboskar, the plaintiff no. 2, plaintiff no. 3's late husband Menin
Rodrigues along with 7 others as is where is basis vide Agreement dated
30.09.1989 for a valuable consideration of Rs.22,995.55/ on the terms
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and conditions mentioned in the said Agreement. The plaintiff came to
know that there is alleged Conveyance Deed dated 01.10.2010. The
plaintiff approached the Police Station on 19.03.2017 for registering
complaint against the defendant no. 1 to 17.
10. Order 1 Rule 10(2) of Code of Civil Procedure provides
that the Court may at any stage of proceedings, either upon or without
the application of either party, and on such terms as may appear to the
court to be just, order that the name of any party improperly joined, be
struck out, and that the name of any person who ought to have been
joined and whose presence is necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the
questions involved in the suit.
11. The defendant no. 1 to 7 are necessary parties to the suit,
as they are parties to the Agreement dated 30.09.1989. In respect of
defendant no. 8 to 13 i.e. Additional Collector, Deputy Collector, Slum
Rehabilitation Authority, the Chief Executive Officer, the Deputy
Collector and the Municipal Corporation for Greater Mumbai sought to
be impleaded only on the ground that they being the parties who have
sanctioned the plans for development of the suit property and their
presence will be necessary to adjudicate the dispute. These are the
Government Authorities, who have sanctioned the plans. Therefore,
only because they have sanctioned the plans, cannot be said to be
necessary party.
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12. The main dispute is between defendant no. 7 to 17. The
plaintiffs have disputed the Conveyance Deed dated 01.10.2010 in
favour of the defendant. Therefore, I hold that the defendant no. 8 to
13 are not necessary/proper parties to the suit. Advocate for defendant
no. 7 to 17 has relied on the order passed in Chamber Summons No.
1040 of 2019 in S.C. Suit No. 1404 of 2017 dated 05.09.2019 by City
Civil Court. In that proceedings, the trial was already commenced and
with due respect it is not binding on this Court. The proposed defendant
no. 1 to 7 are parties to the Agreement. Therefore, they are necessary
parties for adjudication of dispute. Hence, pass following order :
ORDER
1. The Chamber Summons is partly allowed.
2. The proposed defendant no. 1 to 7 are impleaded as
parties to the suit.
3. The plaintiff to carry out amendment and consequential
amendment including para only in respect of defendant
no. 1 to 7 within limitation.
4. Accordingly, the Chamber Summons is disposed of.
(SMT.S.S.Nagur)
Date :23/11/2021 Judge
City Civil Court,
Greater Mumbai.
Pronounced on : 23.11.2021
Dictated on : 23.11.2021
Transcribed on : 29.11.2021
Checked & Signed on : 30.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/12/2021 5.30 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
23/11/2021
Judgment/order signed by P.O on 30/11/2021
Judgment/order uploaded on 03/12/2021
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