Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.643/18 1 Suit No.717/18
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.643/2018
IN
S.C SUIT NO.717/2018
Nadeem Noor Mohammed Shaikh .. Plaintiff
V/s.
Noor Mohammed Fakirmohammed
Shaikh & Ors. ..Defendants
AND
Smt. Sakinabi Fakir Mohammed Shaikh .. Applicant/3rd party.
Appearance :
Ld. Adv. Mr. Divakar for the applicant/ third party.
Ld. Adv. Ms. Dipti Kuber for plaintiff.
Ld Adv. Mr. Gaokar for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 24.7.2019.
ORAL ORDER
1. This chamber summons(C/S) is taken out by the applicant/
3rd party for condoning of delay in filing Chamber Summons and for
adding her as defendant no.6 in the suit and for direction to the plaintiff
to make necessary amendment in the plaint. The C/S is supported by an
affidavit of Sakinabi Fakir Shaikh. The plaintiff has filed affidavitin
reply to the C/S and strongly opposed the same.
2. I have heard oral submissions of Ld. Counsels for applicant
and also of plaintiff and defendants.
3. Ld. Counsel for the applicant/ 3rd party submitted that, the
plaintiff has filed suit in respect of suit property as described in the
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C/S No.643/18 2 Suit No.717/18
plaint as Room no.6, A17, Ground and First Floor, Municipal Colony,
Vikhroli Parksite, Mumbai79 by excluding the applicant. It is
submitted that, the plaintiff is a grandson of applicant/ 3 rd party and
son of defendant no.1 and nephew of the defendant no.2. The applicant
came to know from other defendants that this Court has passed an
order on the Notice of Motion filed by the plaintiff on 22.2.2018 and
granted interim relief in respect of suit premises. Ld Counsel for the
applicant/ 3rd party submitted that, she is monthly tenant of the suit
premises and MCGM, Mumbai is the landlord vide tenancy agreement
dated 24.1.1992. Copy of tenancy agreement is filed on record vide
Annexure1 with the C/S, rent receipts are filed colly. along with
Annexure2 on record. Annexure3 is a sanction letter dated 23.1.1992
issued by MCGM in the name of applicant/3rd party. Annexure4 is
another letter dated 4.4.1989.
4. Ld. Counsel for the applicant submitted that, the applicant
is suffering from diabetic, skin problem and old aged diseases. She is
bedridden and cannot move without wheelchair or with the help of
any other person. As per medical advise, she had gone to village
Ghargaon, Ahmednagar to meet her daughter Mrs. Mumtaj Shaikh for
taking rest. Taking disadvantage of absence of applicant/ 3rd party, the
plaintiff has filed present suit and obtained interim relief behind her
back with malafide intention. Under the above circumstances, it is
prayed that, the applicant/ 3rd party is necessary party in the suit and
needs to be heard before passing any further orders in the suit. Hence,
it is necessary to allow the C/S and the plaintiff be directed to add the
applicant as defendant no.6 in the suit and carry out necessary
amendments in the plaint.
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C/S No.643/18 3 Suit No.717/18
5. The plaintiff has strongly opposed the C/S and relied on
the affidavit in reply filed on record. It is submitted that, the applicant/
3rd party is not necessary party in the suit and no provision is mentioned
under which she is entitled to be added as party defendant in the
present matter. It is submitted that, the suit property which is allegedly
occupied by the applicant/ 3rd party is different. The documents on
record demonstrate that the applicant/ 3rd party may have some legal
rights in respect of the premises on the ground floor of the suit building.
But, premises on the first floor is subject matter of the suit and present
proceeding. Under the above circumstances, there is no substance in the
C/S and it is liable to be dismissed.
6. After considering the submissions made by Ld. Counsels for
both sides and after verifying the documents filed on record by the
applicant/3rd party, which consists of affidavit of Smt. Saida Hamid
Mulla dated 20.2.1986 executed in favour of the applicant/ 3rd party,
rent receipt issued by MCGM, sanction letter issued by MCGM dated
23.1.1992 in favour of the applicant/3rd party and letter given by the
applicant to the Ward Officer (Estate), NWard, BMC Office,
Ghatkopar(E), Mumbai dated 4.4.1989, it appears that, the applicant/
3rd party is having right and interest in the suit premises i.e. Room
no.6, ground floor. According to the plaintiff, the suit property is
located on the first floor of the room no.6. So, there appears to be
dispute between the parties and according to plaintiff, the applicant/ 3rd
party has no right in the suit premises i.e. 1st floor of the suit premises,
however location of immoveable property is one and the same building.
Under the above circumstances, I am of the opinion that as per
provisions of Order1, Rule 10(2) of CPC, the applicant/ 3 rd party would
be necessary party in the suit. Hence, by condoning the delay, if any,
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C/S No.643/18 4 Suit No.717/18
the C/S will have to be allowed as per following order:
ORDER
1. Chamber Summons No. 643/2018 is hereby
allowed.
2. The plaintiff is directed to implead the applicant/
third party as defendant no.6 and carry out
necessary amendment in the plaint within two
weeks from today.
3. The plaintiff is also permitted to make
consequential amendment in the plaint, if any, in
view of addition of the defendant no.6 in the suit.
4. The plaintiff shall submit amended copy of plaint
within two weeks after amendment is carried out
and also supply copy of amended plait to the
defendants no.1 to 6, as per procedure.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 24.7.2019 Gr. Bombay (C.R. 03)
Dictated on : 24.7.2019
Typed on : 24.7.2019
Signed by HHJ on : 25.7.2019
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C/S No.643/18 5 Suit No.717/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :26.7.19
TIME: 5.15 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 24.7.19
Judgment/ order signed by P.O on 25.7.19
Judgment/ order uploaded on 26.7.19
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