Final Order 1

Order Details: Chamber summons
Pdf Text: ..1.. C.S.611-2020 in Suit 1145-20
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
MUMBAI
CHAMBER SUMMONS NO. 611 OF 2020
(CNR NO.MHCC01-004698-2020)
IN
S. C. SUIT NO.1145 OF 2020
Mr. Shivanand P. Hulyalkar ] .. Plaintiff
Versus
Ms. Khushboo Bhagat ] .. Defendant.
AND
1. Rajesh Deshraj Rajput ]
Aged: 44 years, Occ: Business, ]
2. Geeta Rajesh Rajput, ]
Aged: 41 years, Occ: Business, ]
Both adults of Indian Inhabitants, ]
having address at C-1512, Maple ]
Leaf, Raheja Vihar, Opp Chandivali]
Studio, Chandivali, Mumbai-72. ] .. Applicants.
Appearances :-
Ld. Adv. Zeeshan Ansari for applicants.
Ld. Adv. Vidya Mangawade for defendant.
CORAM : H. H. J. Nazera Sadique Shaikh
COURT ROOM NO.03
DATE : 29/11/2023 & 30/11/2023.
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ORDER
The applicant Nos. 1 and 2 have preferred this chamber
summons seeking directions to the plaintiff for joining them as
defendant in this suit. Further relief is sought by the applicants about
the directions to the plaintiff to serve the proceedings of the suit and
motions to the applicants and setting aside the ex-parte ad-interim
order dated 07/10/2020. In addition, the applicants are seeking
injunction against the plaintiff restraining him from disturbing or
interfering with the peaceful possession of the applicants over the suit
property.
2. As per the applicants, they have purchased the suit flat
from defendants by registered agreement to sale on 05/03/2020 for
consideration of Rs.80.00 lakhs. The defendant has produced No
Objection Certificate of the society dated 29/02/2020 showing that she
is bonafide member of the society and society has No Objection for her
to sell the suit flat. The applicants verified from the documents about
the ownership of the defendant and issued public notice in newspapers
on 25/01/2020. The applicants have also submitted to the society a
transfer form on 08/10/2020 for transferring the suit flat in the name
of applicants.
3. As per the applicants, they are bonafide purchaser of the
suit flat and brother of applicant No.1 alongwith his family is residing in
the suit flat. As per the applicants, they received the possession of suit
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flat on 02/10/2020, however on 10/10/2020 the representative of
plaintiff forcibly tried to enter the suit flat. The applicants have filed
police complaint on 10/10/2020, but no action was taken by the police.
The defendant was called at the police station and then the applicant
learn about the present suit. As per the applicants, they are necessary
and proper party to be joined in the suit as they have purchased the suit
flat from the defendants and are bonafide purchasers.
4. The applicants contend that plaintiff has falsely pleaded
about this possession over the suit flat and obtained the interim exparte
order on 07/10/2020 which is required to be set aside and plaintiff be
restrained from interfering in the possession of the applicants over the
suit flat.
5. The plaintiff resisted the chamber summons by filing reply.
The plaintiff reiterated that on learning that the defendant is planning
to sell the suit flat he has preferred this suit and ad-interim relief
against the defendant was granted in his favour. Interim order was also
communicated by the plaintiff to the society on 09/10/2020. As per the
plaintiff, these applicants have dispossessed the tenant of plaintiff and
entered the suit flat on 09/10/2020 by breaching the order of the court.
It is the case of the plaintiff that since two years one Rahul Raj Kishore
was residing in the suit flat as his tenant and the Leave and License
Agreement was executed in his favour on 16/09/2020. Tenant through
one Sagar Subhash Ingulkar has filed NC on 16/10/2020 about
harassment caused by the defendant and his dispossession.
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6. It is the contention of the plaintiff that he has received the
suit flat on the orders of Government of Maharashtra from the quota of
Chief Minister vide order dated 27/09/2007 and 29/10/2007.
Therefore, it is the contention of the plaintiff that, the applicants have
not paid purchase fees to the Government of Maharashtra or taken
permission for sale of the flat. Also as per the contention of the
plaintiff, the defendant has not taken his permission to sell the suit flat
as it was the contention in the Gift Deed executed by the plaintiff in
favour of the defendant. It is another contention of the plaintiff that he
has not given any permission to the society for transfer of the suit flat to
the applicants. The plaintiff has denied that applicant has any right in
the suit flat. The plaintiff contends that the suit is filed seeking
declaration that Gift Deed executed by plaintiff in favour of defendants
is illegal and void and liable to be set aside and cancelled. It has no
concern with the applicants and therefore they are not necessary to be
added in this suit as defendant and applicants can file independent suit
against the defendant.
7. By way of rejoinder the applicants contended that the
plaintiff has not submitted copy of Leave and License Agreement
alleged to have executed by him alongwith the plaint and has
suppressed the material facts. According to the applicants, no
permission was required for purchase of flat as it was already
transferred by plaintiff by executing registered Gift Deed in favour of
the defendants. According to the applicants, as per the order dated
30/01/1989 through which the plaintiff got the suit flat and there was a
restriction for selling the dwelling unit for a period of 5 years only.
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Therefore, no permission was required for purchase of the suit flat from
the defendant. Applicants denied to have dispossessed the tenant of
plaintiff and contends that they have obtained possession of suit flat
from the defendant on 02/10/2020.
8. Heard the learned Advocate for the applicants and learned
Advocate for the defendant. The Advocate for the defendant submitted
that they are consenting to the chamber summons. The plaintiff has
failed to argue the chamber summons inspite of several opportunities.
9. Perused the copy of Agreement to Sale executed between
the applicants and defendant dated 05/03/2020. No Objection
Certificate issued by the society dated 29/02/2020, Share Certificate
issued by the society in the name of defendant, Government allotment
agreement issued in favour of plaintiff and registered Gift Deed
executed by plaintiff in favour of defendant dated 26/05/2016 and
03/01/2017.
10. The suit is for declaration and injunction. It is the case of
plaintiff that he has received the suit flat from the Government of
Maharashtra vide Chief Minister quota. He was acquainted with the
defendant and defendant coerced him to sign the Gift Deed bequeathing
the suit flat in her favour. Therefore, the plaintiff has sought for
cancellation of Gift Deed.
11. As per the applicants, they have purchase the suit flat from
the defendant. In view of the documents relied upon by the applicants,
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it is clear that the defendant has executed the registered Agreement to
Sale dated 05/03/2020 and sold the suit flat in favour of the applicants.
Therefore, the applicants have stepped into the shoes of defendant
claiming possession over the suit flat though the plaintiff has denied the
possession of applicants over the suit flat contending that they have
forcibly obtained the possession which is a matter of evidence. What is
required to be noted is that the applicants are now owners of suit flat
and therefore, they are necessary party to this suit. Since the relief
claimed by the plaintiff is pertaining to the suit flat and for adjudication
of the dispute these applicants are necessary to be impleaded in the
suit. It is seen that the applicants have also sought setting aside the
order dated 07/10/2020 and injunction restraining the plaintiff from
disturbing their possession. However, these reliefs cannot be claimed by
way of chamber summons. Hence, the applicants are required to be
brought on record and by way of pleadings and they have to take out
notice of motion for the reliefs of injunction. With this, I proceed to
pass the following order;
ORDER
1. Chamber Summons No. 611 of 2020 is allowed.
2. Plaintiff is directed to add applicants no. 1 and 2 as defendants no. 2
and 3.
3. Plaintiff is directed to carry out necessary amendment within the
stipulated period.
4. Plaintiff is directed to serve copy of amended plaint along with the
copy of documents and pleadings to the applicants.
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5. Chamber Summons No. 611 of 2020 is disposed off accordingly.
(Order dictated & pronounced in open Court)
( Nazera S. Shaikh )
Judge, City Civil Court,
Dated : 01/12/2023 Gr. Mumbai C.R. No.03,
Dictated on : 29/11/2023 & 30/11/2023
Typed on : 01/12/2023
Signed on : 01/12/2023
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“Certified to be true and correct copy of the original signed order”.
02/12/2023
at about p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Nazera S. Shaikh
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of
Order
: 29/11/2023 & 30/11/2023
Order signed by Hon'ble Judge
on
: 01/12/2023
Order uploaded on : 02/12/2023
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