Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/s 636/2018 in Suit 1029/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 636 OF 2018
IN
S.C.SUIT NO. 1029 OF 2017
CNR NO. : MHCC010043532018
Mr. Manohar Vithal Dalvi & Anr. …. Plaintiffs
Versus
Mr. Mohammadali Yusuf Bagdadi & Ors. ….Defendants
And
Dewoo Shankar Sadye & Ors. … Respondents
Appearance:
Shri. L.K.Tripathi, Advocate for the plaintiff.
Shri. Madhur Surana, Advocate for defendant no. 7 to 17.
Shri. Nadeem Shama, Advocate for respondent no. 38, 39 & 41.
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 46 as party to the suit and in Notice of Motion No.
1685 of 2017. The Chamber Summons is supported by Affidavit of
Manohar Vithal Dalvi, 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
...1/
-- 1 of 7 --
2 Order in Ch/s 636/2018 in Suit 1029/2017
hurry therefore, could not join other coowners and/or their successors.
The Respondent no. 25 to 30 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 respondents Vidya Rane, Sujata Punde,
Manohar Karale and Alka Nalavde 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
...2/
-- 2 of 7 --
3 Order in Ch/s 636/2018 in Suit 1029/2017
Competent Authority and confirmed by the Appellate Authority, the
Hon'ble High Court and the Hon'ble Supreme Court of India. The
defendants have 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, Advocate
Shri. Madhur Surana for defendant no. 7 to 17 and Advocate
Shri. Nadeem Shama for respondent no. 38, 39 & 41.
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 24
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
...3/
-- 3 of 7 --
4 Order in Ch/s 636/2018 in Suit 1029/2017
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
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. Advocate Shri. Nadeem Shama for Respondent No. 38,39 &
41 argued that the respondents be given an opportunity to contest the
suit. They are necessary party to the suit. Hence, prayed to implead
them as party to the suit.
9. The plaintiff has filed the suit against the defendant no. 1
to 17 seeking relief of declaration that on execution of the Agreement
dated 29.12.1987 and Affidavit dated 30.12.1987 the plaintiffs have
become joint/coowners of the suit property and the said Agreement
dated 29.12.1987 and Affidavit dated 30.12.1987 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.
10. The brief facts stated by the plaintiff is that Smt. Fatimabibi
Latif Dadan was the landlord of the suit property purchased from late
...4/
-- 4 of 7 --
5 Order in Ch/s 636/2018 in Suit 1029/2017
Mr.Yusuf Kabir Bagdadi vide Agreement dated 14.08.1974.
Smt. Fatimabibi sold the suit property to plaintiff no. 1 and plaintiff no.
2's mother late Smt. Sunita Pednekar along with other 24 tenants on as
is where is basis vide Agreement dated 29.12.1987 for a valuable
consideration of Rs. 26,000/ on the terms 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 30.03.2017 for registering complaint against the
defendant no. 1 to 17.
11. 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.
12. The defendant no. 1 to 24 are necessary parties to the suit,
as they are parties to the Agreement dated 29.12.1987. In respect of
defendant no. 25 to 30 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
...5/
-- 5 of 7 --
6 Order in Ch/s 636/2018 in Suit 1029/2017
Government Authorities, who have sanctioned the plans. Therefore,
only because they have sanctioned the plans, cannot be said to be
necessary party.
13. 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. 25 to
30 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 24 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 24 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 24 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 : 26.11.2021
Checked & Signed on : 30.11.2021
...6/
-- 6 of 7 --
7 Order in Ch/s 636/2018 in Suit 1029/2017
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
...7/
-- 7 of 7 --