Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS-1004-2019 in SU-4795-2007
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO.1004 OF 2019
(CNR No.MHCC01-005224-2019)
IN
SUIT NO.4795 OF 2007.
(CNR No.MHCC01-007430-2007)
Noorjahan Shahid Dawood }...PLAINTIFF.
VERSUS
Sajid Yakub Kantharia and Ors. }…DEFENDANTS.
AND
Legal Heirs of Ayub Kantharia }...RESPONDENTS.
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Shri.Ranawat, learned advocate for the plaintiff.
Smt.Shah, learned advocate for defendant Nos.1 to 5.
Shri.Shaikh, learned advocate for respondent No.1(d).
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 01/04/2022)
1. By filing this Chamber Summons, plaintiff has claimed the
following relief;
a) That the Hon’ble Court may be pleased to allow the
Plaintiff to implead proposed Respondents no.1(a) to (f) to the
Plaint as per Schedule I to cause title annexed herein in the
aforesaid matter;
2. Read the affidavit filed in support of Chamber Summons
and affidavit in reply filed by defendant Nos.1 to 5. I have heard
learned Shri.Ranawat advocate for plaintiff, learned Smt.Shah advocate
for defendant Nos.1 to 5 & learned Shri.Shaikh advocate for respondent
No.1(d). I have also gone through written notes of argument filed by
the learned advocate for respondent No.1(d). Perused the entire record.
3. Learned advocate for the plaintiff argued that father of the
respondents was one of the co-owner in respect of the suit property. He
argued that defendant No.1 had filed suit No.3405 of 2003 against the
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plaintiff, defendant Nos.2 to 6 and father of respondents wherein,
Consent Terms were filed by virtue of which, plaintiff, defendant Nos.1
to 6 and father of the respondents got equal shares in the suit property.
He argued that deceased father of the respondents had filed Chamber
Summons No.515 of 2009 in this suit when the matter was pending
before Hon’ble High Court but upon the statement made by the counsel
for the plaintiff, said Chamber Summons was disposed of by holding
that it is not necessary to implead father of respondents as defendant to
this suit. He argued that Notice of Motion No.3969 of 2009 taken out
thereafter by defendant No.6 has been allowed by Hon’ble High Court
and accordingly, defendant No.6 has been joined as party defendant. He
argued that the respondents are in possession of 1/3rd undivided share
in the suit property, plaintiff has filed this suit for seeking share in the
suit property and as the suit property is still undivided, plaintiff cannot
ascertain the portion of father’s share from it due to which, in order to
avoid multiplicity of proceedings, it is necessary to implead respondents
as party defendants to the suit. In support of his argument, learned
advocate for plaintiff has placed reliance on the following authorities.
i)
Judgment dtd.10/12/2014 of
Hon’ble Supreme Court in
Civil
Appeal Nos.10940-10941 of 2014 (Baluram Vs. P. Chellathangam
and Ors.),
ii)
Firm of Mahadeva Rice and Oil Mills Vs. Chennimalai Goundar
reported in
AIR 1968 Mad. 287.
I have gone through those authorities.
4. As against this, learned advocate for defendant Nos.1 to 5
vehemently argued that Chamber Summons taken out by the father of
respondents for impleading him as defendant was objected by plaintiff
when the matter was pending before Hon’ble High Court due to which,
plaintiff now cannot be permitted to say that respondents are necessary
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parties to the suit. She argued that prayer made in Chamber Summons
is for bringing on record legal heirs of deceased Ayub Kantharia due to
which, Chamber Summons is under Order 22 Rule 4 of CPC and not
under Order 1 Rule 10 of CPC but there is no prayer for condonation of
delay caused in bringing on record HLRs of deceased Ayub Kantharia.
She further argued that suit is at the stage of recording evidence and
there is no explanation as to why the Chamber Summons was not taken
out before commencement of trial due to which also, prayer made in
the Chamber Summons cannot be accepted. She argued that plaintiff
cannot get any share in the suit property as the share of her father is yet
not ascertained and on that count also, Chamber Summons is liable to
be dismissed. In support of her argument, learned advocate for
defendant Nos.1 to 5 has placed reliance on the following authorities.
i)
Anil Kumar Singh Vs. Shivnath Mishra
reported in
1995 AIR SCW 1782,
ii)
State of Kerala Vs. Madhavakurup
reported in
AIR 1984 Ker. 359.
I have gone through those authorities.
5. Learned advocate for respondent No.1(d) submitted that
plaintiff had previously opposed the prayer made by the father of
respondent No.1(d) to implead him as party to the suit hence, plaintiff
now cannot be permitted to take a different stand and this court can not
entertain the prayer now made by the plaintiff as it would amount to
reviewing the order passed earlier in the Chamber Summons taken out
by the father of respondent No.1(d) due to which, Chamber Summons
is liable to be dismissed.
6. It does not appear to be in dispute that respondent
Nos.1(a) to 1(f) are HLRs of Ayub Kantharia. Respondent No.1(d) alone
has appeared to contest the Chamber Summons. It is submitted in the
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written argument filed on behalf of respondent No.1(d) that other
respondents are not residing on given address and those respondents
are not served with Chamber Summons. Plaintiff has filed affidavit of
service. Statements made in said affidavit that other respondents are
served by RPAD are supported by RPAD receipts and track consignment
reports due to which, there appears no substance in the argument that
other respondents are not served with Chamber Summons.
7. It is not in dispute that present defendant No.6 and Ayub
Kantharia had filed Chamber Summons No.515 of 2009 in the present
suit for adding them as party defendants to the suit when the suit was
pending before Hon’ble High Court. Defendant No.6 was applicant No.1
& Ayub Kantharia was applicant No.2 in said Chamber Summons. Name
of defendant No.6 was allowed to be deleted from the said Chamber
Summons. Said Chamber Summons was disposed of by Hon'ble High
Court as per PC Order dtd.30/09/2009 by holding that in view of the
statements made by the counsel for the plaintiff, it is not necessary to
implead Ayub Kantharia as a defendant. In para-4 of the PC Order
dtd.30/09/2009, it is observed as;
“...The learned counsel appearing on behalf of the plaintiffs
contends that plaintiffs will not contend that any orders passed in
the suit, interim or final would affect the rights, if any, of the
applicant in the suit property. Nor would they so contend before
any other authorities as against the applicant, based only on such
orders. The statements are accepted. In view thereof, it is not
necessary to implead the applicant as a defendant”.
8. Thus, it is clear that plaintiff had opposed said Chamber
Summons by contending that defendant No.6 and Ayub Kantharia are
not necessary parties to the suit. Learned advocates for defendants and
respondent No.1(d), by referring to said Order, submitted that plaintiff
now cannot be permitted to say that legal heirs of Ayub Kantharia are
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necessary parties to the suit.
9. I could not find any force in the said argument because it is
a matter of record that after disposal of said Chamber Summons as
above, defendant No.6 had taken out Notice of Motion No.3969/2009
for adding him as party defendant to the suit. Said Notice of Motion has
been allowed by Hon’ble High Court. It would be just to reproduce here
Para-4 of the PC Order dtd.16/06/2010 passed by Hon'ble High Court
in Notice of Motion No.3969 of 2009 which reads as;
“4. It is contended that the very same applicant had
preferred a Chamber Summons for being added as a defendant.
That Chamber Summons was disposed off by the order of this
Court on 30/09/2009. From the order passed in that Chamber
Summons, is seen that the plaintiff contended that the applicant
was not necessary party. Counsel appearing on his behalf stated
that the plaintiff will not contend that any order passed in the
suit, interim or final, would affect the rights, if any, of the
applicant in the suit property. He further stated that the plaintiff
would not contend before any authority as against the applicant
based only on such orders. These statements were accepted and
in view of the acceptance of such statements, Court concluded
that it was not necessary to implead the applicant as a defendant.
It appears that it was not pointed out to the Court that one of the
property was of the joint ownership of the applicant. The question
as to whether the applicant would be a necessary party to the
plaintiff's suit in view of the prayer of partition by meters and
bounds was not considered by the Court since it appears that
this aspect was not specifically pointed out. In such
circumstances, not-with-standing the order passed in the
Chamber Summons in exercise of powers under Order 1 Rule
10(2), I am inclined to direct the plaintiff to add the present
applicant as a party defendant to the suit. Amendment in this
regard will be carried out within a period of four weeks from
today”.
10. It is true that name of defendant No.6 was deleted from
Chamber Summons No.515 of 2019 however, it does not appear to be in
dispute that as like defendant No.6, Ayub Kantharia was also co-owner
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in respect of the property described in clause-2 of Exh.C to the plaint
due to which, the observations of Hon'ble High Court in para-4 of
Notice of Motion No.3969/2010 reproduced here-in-above are squarely
applicable while considering this Chamber Summons. Thus, argument
of learned advocate for defendant Nos.1 to 5 and of learned advocate
for respondent No.1(d) is not acceptable that in view of rejection of the
earlier Chamber Summons, plaintiff is not entitled to join the
respondents as defendants to the suit.
11. Learned advocate for the defendant No.1 to 5 argued that
plaintiff has prayed to bring on record the legal heirs of Ayub Kantharia
who was not party to the suit due to which, Chamber Summons is not
maintainable in view of provisions of Order 22 Rule 4 of the Code of
Civil Procedure. Title clause of Chamber Summons shows that plaintiffs
have mentioned the respondents as legal heirs of late Ayub Kantharia.
Even though the title is given as such, it does not mean that Chamber
Summons is filed under Order 22 Rule 4 of the Code of Civil Procedure
because, as is argued by learned advocate for defendant Nos.1 to 5
herself, Ayub Kantharia was not party defendant to the suit. It is clear
from the affidavit filed in support of the Chamber Summons that on
account of death of Ayub Kantharia, plaintiff wants to join his legal
heirs as defendants to the suit by contending that those legal heirs are
are in possession of the 1/3rd undivided share of Ayub Kantharia. This
Chamber Summons is not under Order VI Rule 17 of the Code of Civil
Procedure due to which, proviso to Rule 17 would not be applicable.
12. This Chamber Summons is under Order I Rule 10 which
prescribes that the Court can at any stage add anyone either as a
plaintiff or as a defendant to the suit if the court finds that such a
person is necessary or proper party to the suit. Ayub Kantharia is now
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no more hence respondents, being the legal heirs of deceased Ayub
Kantharia, are necessary parties to the suit as it does not appear to be in
dispute that respondents are now in possession of 1/3rd share of Ayub
Kantharia. Considering it, this court is satisfied that respondents are
necessary and proper parties to the suit and hence, an order.
O R D E R
Chamber Summons No.1004 of 2019 is allowed.
Plaintiff shall carry out amendment in plaint in terms of
prayer clause(a) of the Chamber Summons within two weeks.
After carrying out the amendment as above, plaintiff shall
serve the copies of amended plaint on the defendants and added
defendants.
Date : 01/04/2022. (P.P.RAJVAIDYA)
Dictated on : 01/04/2022. Judge, C.R.No.62,
Checked on : 01/04/2022. City Civil Court,
Signed on : 01/04/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
04/04/2022 at 12.10 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 01/04/2022
Order signed by P.O. on 01/04/2022
Order uploaded on 04/04/2022
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