Final Order 1

Order Details: Chamber summons
Pdf Text: CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
1 Date :09.12.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 631 OF 2020
IN
S.C. SUIT NO. 8081 OF 1994
H.C.O.O.C.J. SUIT NO. 477 OF 1994
(CNR MHCC01-005166-2020)
Pushpadevi Sushil Kumar Modi & Anr. .. Plaintiffs
Versus
M/s. Deora Kedia Development Co. pvt. Ltd. .. Defendant
And
M/s. DGS Township Private Limited & Anr. .. Respondent
Appearances :-
Ld. Adv. R. A. Trivedi for plaintiff.
Ld. Adv. R.M.Pandey for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 09.12.2020
ORDER
1. The plaintiff has filed instant Chamber Summons for
addition of M/s. DGS Township Private Limited and M/s. Tapovan
View Co-operative Housing Society Limited as a party defendants
to the suit and to make consequential amendment as per schedule
attached with the Chamber Summons.
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CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
2 Date :09.12.2020
2. It is contended by the plaintiff that, the respondent no. 2
executed an Assignment Cum Development Agreement dated
20.07.2016 of the building wherein, the suit premises is situated
and thereby, the entire building is demolished and respondent no.
1 has started construction on the same. The defendant herein has
handed over the possession of the suit premises to the proposed
defendant no. 2 and 3 before demolition of the building.
Therefore, the proposed defendants are necessary party to
adjudicate the present suit properly. Hence, the plaintiff prayed
for allowing the present Chamber Summons.
3. The Ld. Advocate Mr. R. M. Pandey for the defendant
opposed the Chamber Summons by filing reply. It is contended
that, the suit filed by the plaintiff is under Section 6 of Specific
Relief Act. The proposed defendants are absolutely not necessary
party looking to the scope of the Section 6 of Specific Relief Act.
Hence, the presence of proposed defendants are not at all required
for adjudication of the present suit.
4. It is further submitted that, there is a delay in preferring the
instant Chamber Summons which has not been explained by the
plaintiff. It is contended that, the plaintiff on earlier occasion filed
Chamber Summons No. 1821 of 2017, wherein, he neither prayed
for addition of proposed defendants in the suit nor he has pressed
for the aforesaid Chamber Summons, which came to be disposed
of by this Court vide, order dated 13.06.2018.
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CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
3 Date :09.12.2020
5. It is further contended that the building, wherein the suit
premises was situated was dilapidated and therefore, the BMC
issued notice under Section 354 of Mumbai Municipal Corporation
Act, 1888. The respondent no. 1 entered into Agreement with
respondent no. 2 with respect to the suit flat which was kept
locked. As the building was dilapidated, hence, the entire building
was demolished. The defendant had not entered into any
Agreement for alternate accommodation or permanent alternate
accommodation, in lieu of suit premises with the respondents.
Hence, the defendants prayed for dismissal of the Chamber
Summons.
6. The plaintiff has filed re-joinder and contended that, the
notice issued under Section 354 of Mumbai Municipal Corporation
Act, 1888 was with respect to repairs only and not for demolition
of the building. The Respondent no. 1 handedover the Flat
bearing No. 1001 in “A” Wing of newly constructed building to the
defendant in lieu of suit premises which the defendant is denying.
Therefore, plaintiff contended that, addition of respondents are
essential to the proceeding.
7. The defendant by filing sur-rejoinder denied the allotment of
Flat bearing no. 1001 in “A” Wing in lieu of suit flat and also
denied the execution of any Agreement with respondents and
prayed for dismissal of the Chamber Summons. It has been further
contended by the defendant that, in view of the fact that, contempt
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H.C. O.O.C.J. suit No. 477 of 1994
4 Date :09.12.2020
Notice of Motion No. 3924 of 2017 is still pending. The plaintiff
could have called respondents as witness in said Notice of Motion
or could have called them as witness in the suit. The application
by way of addition of party is not at all required and thus, same
needs to be dismissed with cost
8. Heard both the sides. Perused Chamber Summons, reply,
rejoinder and sur-rejoinder. The plaintiffs filed present suit under
Section 6 of Specific Relief Act against the defendant. During
pendency of the suit, the Hon’ble High Court vide, its order dated
08.02.1994 granted ad-interim relief in favour of plaintiff, whereby
restraining the defendants from disposing of or alienating or
creating third party interest in the suit flat. The aforesaid relief
was subsequently confirmed by the Hon’ble High Court vide, its
order dated 21.11.1995.
9. During pendency of the suit, the plaintiff has filed Chamber
Summons No. 1821 of 2017 with prayer against defendant to
submit the details of proposed alternate accommodation which is
going to be given to the defendant in lieu of suit premises.
However, my Ld. Predecessor vide, its order dated 02.08.2018
passed order that, the plaintiff have already closed their evidence
and evidence of defendant was going on. Therefore, the Chamber
Summons was kept pending with liberty to the plaintiff to press for
the same during trial.
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CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
5 Date :09.12.2020
10. Admittedly, the evidence of the parties and/or
arguments of the parties were also concluded. However, the
plaintiff in pursuance of the liberty granted, filed instant Chamber
Summons for addition of respondents as a party to the proceeding.
As per Order 1 Rule 10 (2) of Code of Civil Procedure, “
the Court
may at any stage of proceeding, either upon or without the
application of either party, and on such terms as may appear to the
Court be just, order addition or deletion of the party whose
presence before Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all
issues involved in the suit.”
11. Admittedly, the building in which the suit premises was
situated, has been demolished. The respondent no. 1 has entered
into Agreement dated 20.07.2016 with respondent no. 2, which
shows that, the suit property was also a part of re-development
process. It is very surprising that, the defendant did not disclose
the status of alternate accommodation or even which flat would be
proposed to be allotted to him in lieu of suit flat. The defendants
have taken only stand that, in view of notice under Section 354 of
Mumbai Municipal Corporation Act, 1888 the corporation have
demolished the entire building. He has not handed over the
possession of the flat to respondent no. 1 neither he has executed
any Agreement with respect to the suit flat. He has also denied the
proposed allotment in lieu of suit Flat No. 1001 in “A” Wing. Thus,
looking to the aforesaid stand taken by the defendant, in my view,
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CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
6 Date :09.12.2020
it is necessary to add the respondents as a party defendant, so as
to effectually and completely adjudicate the fact of issue.
12. It is settled position of law that, the Court may at any stage
of proceeding can add party plaintiff or defendant. Hence, in my
view, there is no question of delay arises. In my view, although
the respondents are not necessary party, but they are proper party
as their presence may effectually and completely adjudicate the
issue involved in the present suit. Therefore, in view of the above,
the present Chamber Summons needs to be allowed. Thus, I
proceed to pass the following order :
ORDER
1. Chamber Summon No.631/2020 is hereby allowed in terms
of prayers Clause (a) to (c).
2. Plaintiff to carry out necessary amendment as per schedule
within period of 14 days or forthwith. After amendment,
issue suit summons to the proposed defendants.
3. Chamber summons No.631/2020 is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 09.12.2020 Greater Bombay.
Dictated on : 09.12.2020
Typed on : 10.12.2020
Draft Submitted on : 10.12.2020
Checked on : 10.12.2020
Signed on : 10.12.2020
Uploaded on : 10.12.2020
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CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
7 Date :09.12.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10/12/2020 at 3.15 p.m. (Ms. V. V. Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
10/12/2020
JUDGMENT/ORDER signed by P.O.
on
10/12/2020
JUDGMENT/ORDER uploaded on 10/12/2020
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CS 631 of 2020 in S.C.Suit No. 8081 of 1994
H.C. O.O.C.J. suit No. 477 of 1994
8 Date :09.12.2020
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