Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/s 633/2018 in Suit 1430/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 633 OF 2018
IN
S.C.SUIT NO. 1430 OF 2017
CNR NO. : MHCC010043432018
Smt. Bhimabai Shravan Sonkusare & Ors. …. Plaintiffs
Versus
Mr. Mohammadali Yusuf Bagdadi & Ors. ….Defendants
And
Sunil Ramrao Surve & 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 31 as party to the suit and in Notice of Motion No.
2722 of 2017. The Chamber Summons is supported by Affidavit of Smt.
Bhimabai Shravan Sonkusare, 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 21.01.1989. The plaintiffs filed the suit in great
urgency and hurry therefore, could not join other coowners and/or
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their successors. The Respondent no. 9 to 14 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 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
stated the defence raised by them. They are objecting on the ground
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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 8
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
defence of non joinder of coowners to counter that the present
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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 21.01.1989 and Affidavit dated 21.01.1989 the plaintiffs have
become joint/coowners of the suit property and the said Agreement
dated 21.01.1989 and Affidavit dated 21.01.1989 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 1)Ali son of
Hussain Momin, 2) Abdul Rehaman Hussain Momin, 3) Abdul Razak
Hussain Momin, 4) Gaffar Hussain Momin, 5) Hamid Hussain momin
were the landlords of the suit property. The plaintiff no. 1's late
husband Shravan Ganpat Sankusre, plaintiff no. 2's predecessor in title
Prakash Surve, Plaintiff no. 3's late husband Rajaram Jadhav, plaintiff
no. 4, plaintiff no. 5's predecessor in title Arora and plaintiff no. 6's late
father Jagannath along with 11 others sold the suit property to the
plaintiffs and their predecessors along with other 11 tenants on as is
where is basis vide Agreement dated 21.01.1989 for a valuable
consideration of Rs. 17,000/ on the terms and conditions mentioned in
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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 8 are necessary parties to the suit,
as they are parties to the Agreement dated 21.01.1989. In respect of
defendant no. 9 to 14 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. 9 to
14 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 8 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 8 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 8 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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