Order 1

Order Details: Chamber summons
Pdf Text: C/S No.762/18 1 Suit No.226/18
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.762/2018
(CNR No.MHCC010052662018)
IN
S.C SUIT NO.226/2018
Leena Vinod Pawar .. Plaintiff
V/s.
1. Arti Sachin Jagtap
2. Sachin Shamrao Jagtap ..Defendants
And
Mr. Nathu Haribhau Gaikwad …Applicant
(proposed defendant)
Appearance :
Ld. Adv. Mr Zagade for plaintiff.
Ld. Advs. Ms. Pooja Savale h/f. Mr. Sachin Dere for applicant in C/S.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 16.12.2019.
ORAL ORDER
1. Perused Chamber Summons (C/S) supported by an
affidavit of applicant Nathu Haribhau Gaikwad and accompanying
documents vide Exhs.A to C.
2. Heard Ld. Counsel for the applicant. None present for the
plaintiff and defendant at the time of hearing.
3. Ld. Counsel fort he applicant submitted that, he has
acquired right, title and interest in the suit property i.e. Room No.507,
Building No. 13, Sion Pratiksha Nagar, Transit Camp, Sion, Mumbai
400 022. Original allottee of the suit premises had been issued a
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vacation notice u/s.90(1) of MHADA Act, 1976 dated 8.7.2008 as
premises were in dilapidated condition and declared as dangerous for
human occupation. Copies of vacation notices are annexed with the
C/S. vide Exh.A.
4. Ld. Counsel for the applicant further submitted that, he has
acquired right, title and interest in respect of the suit property vide
General Power of Attorney/ affidavit dated 14.1.2009 executed by
original allottee of the premises. In the year 2003, the applicant had
given the suit premises to Mr. Shrikant Gaikwad on leave and license
basis. However, taking undue advantage of the situation, said Shrikant
Gaikwad had sublet the suit premises to Mr. Paradkar on heavy
deposit, illegally and without consent of the applicant. Said Paradkar,
with the consent of Smt. Vandana Mane, another property agent, had
cheated the applicant and extorted huge amount on the pretext of
vacating the premises.
5. It is further submitted that, in the meanwhile, the applicant
learnt that the suit premises have been further sold by another property
agent and possession has been handed over to third party purchaser.
Therefore, the applicant had filed complaint against said Vandana Mane
and Paradkar and others with Sr. PI of Wadala TT police station, copy
of which is filed with the C/S at Exh.B. It is dated 16.1.2018.
6. It is submitted that, present plaintiff, who is in possession
and occupation of the suit premises, is illegally occupying the same. In
the police enquiry, Wadala police had asked for document in respect of
suit premises vide letter dated 2.2.2018 addressed to Dy. Chief Officer,
MBR & R Board, Gruh Nirman Bhavan, Bandra, Mumbai. Said letter
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C/S No.762/18 3 Suit No.226/18
was replied on 21.2.2018 by the said authority and from the said letter
reply, it is clear that the documents submitted by the plaintiff were
found to be prima facie false and fabricated; while documents submitted
by the applicant were found genuine. Copy of letter is annexed with the
C/S vide Ex.C.
7. On the above factual background, Ld. Counsel for the
applicant has placed reliance on the authorities of the Hon'ble Apex
Court and submitted that, the plaintiff's claim in the suit suffers from
“supressio vari and suggestio falsi”. These authorities are as under:
1. S.P. Chengalvaraya Naidu (dead) by LRs V/s.
Jagannath (dead) by LRs and others ((1994) 1
Supreme Court Cases 1)
2. Shri F.M.A. Hakeem, Chairman & Ors V/s. The U.P.
Cooperative Spinning Mills Federation Limited &
Anr. and The Cooperative Textiles Mills Limited
Staff Association (2003 Vol.105(1) Bom. L.R. 722).
8. I have gone through the above authorities and find that, in
the first authority, Hon'ble Apex Court has held that, judgment or
decree obtained by fraud is to be treated as nullity and can be
questioned even in collateral proceedings. Hon'ble Bombay High Court
in the second authority has observed that, as per Order 1 Rule 3 of CPC,
who may be joined as defendant in the suit can be considered if
proposed defendant has direct and substantial interest in the subject
matter of the suit. He can be joined as party defendant in the suit.
Presence of such applicant (proposed defendant) must be found
necessary for answering the issues arising in the suit.
9. Considering the above submission made on behalf of the
applicant and documents filed on record, I am of the opinion that,
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presence of the applicant for answering the issues, whether the
plaintiff's claim in the suit is legal, proper and maintainable in law and
whether it suffers from doctrine of “supressio vari and suggestio falsi” is
necessary. Under the above circumstances, the C/S deserves to be
allowed under Order 1 Rule 10 of CPC and hence, I proceed to pass
following order:
ORDER
1. Chamber Summons No.762/2018 is hereby allowed.
2. The plaintiff is directed to join the applicant as
defendant no.3 in the suit, as prayed in the chamber
summons, as per Schedule annexed with the chamber
summons.
3. The plaintiff shall carry out necessary amendment in
the plaint within four weeks from today and shall
submit amended copy of plaint and serve the same on
other side within two weeks thereafter.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 16.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 16.12.2019
Typed on : 16.12.2019
Signed by HHJ on : 17.12.2019
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C/S No.762/18 5 Suit No.226/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :17.12.19
TIME: 1.11 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 16.12.19
Judgment/ order signed by P.O on 17.12.19
Judgment/ order uploaded on 17.12.19
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