Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.563-2020, in Suit no.340-2019
MHCC010044142020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.563 OF 2020
IN
SHORT CAUSE SUIT NO.340 of 2019
Pandhari Motilal Yadav ...Applicant
Mr. Datta Baburao Dhanavade ...Plaintiff
Vs.
M/s. A.R. Constructions & Ors. ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 23rd DAY OF JANUARY, 2023
:Appearances:
The learned Adv. Sunita Dubey for the applicant.
Adv. Harish Pawar for the plaintiff.
Adv. Vinod Desai for defendants.
ORAL ORDER
The applicant Pandhari Yadav has filed the present
chamber summons to join him as a party defendant no.4 in the suit.
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2 Ch/sum. no.563-2020, in Suit no.340-2019
2. In short, it is contention of the applicant that, he is the
tenant of suit premises. He has filed RAD suit no. 129/2015 in Small
Causes Court, Mumbai against the plaintiff and defendants. Inspite of
having knowledge of the fact that the applicant being tenant is
residing in the suit premises, the plaintiff intentionally did not join
him as a party to the suit. The applicant being necessary and proper
party, required to be join as defendant no.4. Hence the chamber
summons.
3. The plaintiff strongly opposed the chamber summons by
filing reply on affidavit. It is contention of the plaintiff that the
chamber summons being misconceived, perverse to the facts, devoid
of any merits, is not maintainable. Applicant is neither necessary nor
proper party to the present suit. The applicant having no locus to join
as party to the suit. Hence the chamber summons may kindly be
dismissed.
4. Defendants no. 1 to 3 support the chamber summons and
ask to pass the appropriate order.
5. Heard the learned advocate for applicant, the plaintiff
and defendants. Perused the chamber summons.
6 Following points arise for my determination to which I
record my findings with reasons as follows:
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3 Ch/sum. no.563-2020, in Suit no.340-2019
Sr.
No.
Points Determination.
1. Whether the applicant being necessary or
proper party needs to be joined as defendant
no.4 to the suit ?
No
2. What order ? As per final
order
:REASONS:
As to point no.1:
7. The plaintiff has filed the suit for declaration, direction
and injunction against defendants. It is case of the plaintiff that he
was lawful tenant of suit property. The defendant no.1 is registered a
partnership firm dealing in the business of redevelopment of
properties. Defendants no.2 and 3 are its partner. Defendants are the
owner of old building Bhajiwala chawl and decided to redevelop the
said chawl, wherein the suit property is situated. Defendants were
agreed to allot new premises in the newly constructed building as and
by way of permanent accommodation on ownership basis free of costs
to the existing tenants/occupants. The plaintiff had handed over old
premises to defendants for redevelopment by executing consent in
favour of defendants. Defendants have also executed registered
agreement for permanent alternative accommodation dated
22/11/2012 in favour of the plaintiff for allotment of a new premises
admeasuring about 300 sq.ft., carpet area. However, defendants
failed to perform their part of contract, hence the suit.
8. Now, it is case of the applicant that he is the tenant of
suit premises and therefore he is necessary and proper party to the
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4 Ch/sum. no.563-2020, in Suit no.340-2019
suit. Whereas it is contention of the plaintiff that, the rights of the
applicant are already decided and ceased in the earlier suit i.e., Suit
No. 2749/2009. The applicant went upto the Hon’ble Supreme Court
by preferring SLP, however same came to be dismissed. The applicant
during crossexamination himself admitted that he was not the tenant
of suit premises. It is further contention of the plaintiff that the
applicant has not joined him as a party to the RAD Suit No.129/2015
filed before the Small Causes Court.
9. It is well settled that necessary party is one whose
presence is absolutely necessary and without his presence the issue
cannot be effectively and completely be adjudicated upon and
decided between the parties. The appropriate party is one whose
presence would be necessary to effectively and completely
adjudicated upon the disputes. It is also well settle that the plaintiff
being dominus litis, may choose the persons against whom he wishes
to litigate and cannot be compelled to sue a person against whom he
does not seek any relief {Mumbai International Airport Pvt Ltd., Vs
Regency Convention Centre And Hotels Pvt Ltd and Ors, (2010) 7
SCC 417}.
10. The plaintiff came with the case that it is he who has
handed over possession of the suit premises to defendants against
which they have entered into a registered agreement for permanent
alternate accommodation dated 22/11/2012 with him. The plaintiff
has filed the copy of said agreement on record. Nothing on record to
show that the applicant was party to the said agreement. Therefore, I
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5 Ch/sum. no.563-2020, in Suit no.340-2019
am of the view that the applicant is neither necessary nor a proper
party to the present suit. Hence my answer to point no. 1 is in
negative.
As to point no.2:
11. In view of my above discussion, I pass the following
order:
ORDER
Chamber summons no. 563/2020 stands rejected.
Chamber summons stands disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.23.01.2023 (C.R. No.1)
Dictated on : 23.01.2023
Transcribed on : 24.01.2023
Checked & Signed on :
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6 Ch/sum. no.563-2020, in Suit no.340-2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE : 27.01.2023 NAME OF STENOGRAPHER(GI)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 23.01.2023
JUDGMENT/ORDER signed by P.O. on 27.01.2023
JUDGEMENT/ORDER uploaded on 27.01.2023
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