Interim Order 1

Order Details: Chamber summons
Pdf Text: 1 DRAFT CH-S IN SU 1306-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT CHAMBER SUMMONS
IN
S.C. SUIT NO.1306 OF 2019
Yaqoob Jamal Belim ]...Applicant
In the matter of
Mr. Nadeem Abdul Hakim Khan ]....Plaintiff.
Versus
Municipal Corporation for ]
Greater Mumbai. ]... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 6th July, 2019.
Mr. V.T. Dubey, Advocate for plaintiff.
Ms. Mhatre, Advocate for Defendant / MCGM.
Mr. Pathak, Advocate for applicant.
O R D E R
1. The applicant has taken out this Chamber Summons to implead
him as party defendant in the present suit on the ground that he is a
necessary and property party to the suit.
2. In brief, the applicant's case is that, he has an absolute right in
the subject matter of the suit. The applicant and Mr. Sayad Wajid Abdul
Haque have acquired rights for development of the suit property.
Applicant has paid Rs.6,00,000/ to the land owners namely
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Qamrudnnisha Peer Mohd. Hussain Qureshi and others under
development Agreement dated 30.5.2017. However, the applicants
partner Mr. Sayad Wajid Abdul Haque in collusion with Mrs.
Qamrunnisha Peer Mohd. Hussain Qureshi demolished entire
building and started fresh construction without following due
process of law. Therefore, the applicant had filed a suit for
injunction which is pending before this Court. Mrs. Qamrunnisha
has filed a suit bearing lodging No.16048 of 2018 and obtained
interim order to restrain the defendant Corporation to act against
the construction being raised. In spite of said interim order said
Mr. Sayad Wajid Abdul Haque and Mrs. Qamrunnisha constructed s
storied building without following due process of law. After
realizing that interim order will harm her interest, Mrs.
Qamrunnisha withdrew the suit. Defendant Corporation started
action and demolished one floor. Therefore, by virtue of a false
agreement the employee of Mr. Sayad Wajid Abdul Haque i.e.
present plaintiff is shown to be purchaser of said building who had
filed present suit. By virtue of development Agreement an applicant
has got rights in the suit property and thus he is the proper as well
as the necessary party to the present proceedings.
3. The plaintiff has opposed the Chamber Summons on the
ground that the applicant is neither a necessary nor proper party to
the suit. He has no registered Agreement reflecting his so called
rights in the suit property. The applicant does not have either direct
or indirect interest in the suit property. Thus he is neither proper
nor necessary party to the suit.
4. Perused. Heard.
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5. Considering the rival contentions and the documents placed
on record it is clear that the applicant is claiming his rights in the
suit property on the basis of a development Agreement.
6. Advocate for plaintiff has relied upon Judgment of Hon'ble
Bombay High Court dated 17.12.2008 in Notice of Motion taken
out in Suit No.1094 of 2007 between H.K. Taneja & Ors. Vs.
Bipin Ganatra and Keshavrao J. Bhosle wherein the Hon'ble
Bombay High Court has observed paragraph No.9 and 10 as
follows:
(9). There have been numerous cases of antidated
documents shown to be notarized other than the one that
came up before the Court in the aforesaid two cases.
Hence it cannot be put past any executant to produce the
document shown to be notarized on a given date without
substantiating that fact through the mandatorily
required statutory procedure. No document thrown in
the face of the Court as notarized document can,
therefore, prevail without the accompanying notarial
registration of entry. Of course, even if that is shown,
the fact that the document has remained unregistered
when it creates an interest in an immovable property
would remain to be admissible in evidence. But at least
the Court could be satisfied prima facie about its
execution. The document produced by the Applicant
without showing compliance of the Notaries Act and
Rules bears no worth and deserves to be fully rejected.
(10). It may be mentioned straightway that the absence
of registration as well as the required procedure for
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notarization would make the document so inadmissible
in evidence as to not allow the Applicant to base his case
upon such a document. The object of registration as well
as notarization is lost if a document of the kind can be
looked into or considered by the Court, even prima facie,
to take the contents as correct."
Relying upon above observations the advocate for plaintiff
submitted that the development Agreement produced on record
cannot be relied upon.
7. On the other hand the Advocate for applicant submitted that
the Agreement need not be even Notarized. The nature of
Agreement is such that even without its Notarization, registration
and without the stamp duty being paid on it, still it can be acted
upon by the Court.
8. Whenever such Chamber Summons is to be considered the
prime consideration will be whether the applicant is either a
necessary or a proper party to the suit.
9. Even if the development Agreement is considered as it is, it
will have to be considered whether in the light of plaint pleadings
he can he be allowed to intervene in the present suit.
10. Perusal of the plaint reveals that, the plaintiff has filed
present suit apprehending demolition of the suit premises i.e.
building by the defendant Corporation. This is the subject matter of
the suit, to decide which the presence of any other person than the
defendant Corporation is absolutely unnecessary. Thus when the
suit can be decided in absence of any other person including the
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applicant, the applicant cannot be considered as a necessary or
proper party to the suit. The presence of applicant in any capacity in
the present suit is unwarranted.
11. The applicant has come with a case that, he had already filed
a separate suit in respect of his rights flowing from the alleged
development Agreement. Therefore, on this count also his presence
is not necessary in the present suit as his rights can very well be
decided in the suit filed by him. Consequently, I hold that Chamber
Summons cannot be allowed. Hence the order:
ORDER
1. Draft Chamber Summons is dismissed.
2. No order as to costs.
3. Draft Chamber Summons be registered for statistical purpose.
Sd/
(A.N. MARE)
Judge,
06/07/2019 City Civil Court, Mumbai.
Dictated On : 06.07.2019
Transcribed on : 06.07.2019
HHJ Signed on : 06.07.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
08.07.2019 04.05 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
06.07.2019
JUDGEMENT /ORDER signed by
P.O. on
06.07.2019
JUDGEMENT /ORDER uploaded
on
08.07.2019
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