Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.1040/2019 in L.C.Suit No.1404/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 1040 OF 2019
(C.N.R.No. MHCC010054782019)
IN
SHORT CAUSE SUIT NO. 1404 OF 2017
(C.N.R.No. MHCC010060562017)
Mr. Shashikant Tukaram Salvi and ]
Ors. ]..Plaintiffs.
V/s.
Mr. Mohammadali Yusuf Bagdadi ]
and Orders ]..Defendants.
And
M/s Aakaar Nirman Properties and ors. ]..Respondent
Advocate Mr. L. K. Tripathi for Plaintiff.
Advocate Mr. Madhur Surana with Parag Shah for Defendant nos. 7
to 17.
None present for Defendant no. 1 to 6.
Adv. Trivedi for SRA/Defendant nos. 20 and 22.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 5th SEPTEMBER, 2019
ORAL ORDER
This Chamber summons has been taken out by the plaintiffs
for adding respondents as a Defendants No. 26 to 47 and allowing the
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Plaintiff to carry out amendment accordingly, as per schedule annexed
to Chamber Summons.
2 In support of Chamber Summons plaintiff No. 1 has filed
affidavit in support. It is averred that the Respondents are original co
owners of the suit property. The Respondents have purchasedproperty
along with Plaintiffs from the owners of the suit property. Proposed
Defendant Nos. 26 to 47 are the coowners and they have their
respective address as mentioned in the cause title of the plaint.
Proposed Defendants No. 26 to 47 are to be joined as a party and no
relief is claimed against them. Defendant No. 48 is joined as a necessary
and proper party being the authority responsible for implementing and
sanctioning plan etc. i.e. including other incidental activities in relation
to and for redevelopment of the suit property under the alleged scheme.
3 It is further averred that the Plaintiffs have filed the suit in
a great urgency and hurry and therefore, they could not joined the
other coowners in the suit. The Respondents are to be joined as co
owners of the suit property alongwith the Plaintiffs. as per agreement
dated 6.10.1990 and therefore, they are necessary and proper parties.
Further to avoid any legal technicalities, they are necessary parties.
4 It is further averred that by joining Respondents as party
Defendants, the controversy between the parties to the suit can be
adjudicated completely and effectively and it will also prevent
multiplicity of the proceedings on the same cause of action. By joining
them, as a party, ambit of the suit, will not be enhanced and/or altered.
Due to oversight, leave to register Chamber Summons could not be
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taken. The affidavit of support, due to bonafide mistake could not be
tendered alongwith draft Chamber Summons.
5 It is further averred that if, respondents are not joined as a
party Defendants, irreparable loss, harm and prejudice would be caused
to the Plaintiffs. Hence, prayed for allowing Chamber Summons.
Advocate for Respondent No. 4 filed one pursis alongwith death
certificate disclosing the facts that Respondent no. 3 expired on
26.03.2009.
6 Defendant nos. 1 to 17 have filed reply and opposed
Chamber Summons strongly and prayed for dismissal of Chamber
Summons.
7 Heard Learned Advocate for the Plaintiffs and Defendant
nos. 7 to 17. It is argued by Learned Advocate for the Plaintiffs that the
respondents are the coowners in view of agreement dated 6.10.1990.
They are proper and necessary parties. Nature of the suit will not be
changed, if Chamber Summons is allowed. Further he has submitted
that to avoid multiplicity of the proceedings this Chamber Summons is
necessary to be allowed. Hence prayed for allowing Chamber Summons.
8 Besides Advocate for Defendant nos. 1 to 17 has drawn my
attention towards the pleadings and he has submitted that already
Defendant no. 22 and 23 have been joined, as a party and two
Respondents have filed suit before the Hon'ble High Court and there is
no sufficient reasons stated by the Plaintiffs, as to why Respondents did
not join in the suit, at the time of filing of the present suit. Thus he has
prayed for dismissal of Chamber Summons.
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9 It appears that claim of the Plaintiffs seems to be based on
Sale Deed dated 6.10.1990, and they are claiming them, as a joint
owners alongwith 22 others. In the plaint para no. 1, the Plaintiffs have
pleaded that they alongwith other 22 are the joint owners of the suit
property. That means, at the time of filing of the suit, the Plaintiffs were
aware that the respondent are other coowners and inspite the same,
the Plaintiffs have chosen not to add them, as Defendants and that too,
though the Plaintiffs have filed the suit for seeking relief of declaration
in their favour in view of Sale Deed dated 06.10.1990 and seeking
reliefs against Defendant Nos. 1 to 6 in view of Sale Deed dated
06.10.1990 that Defendant Nos. 1 to 6 did not have right, title and
interest to execute Conveyance dated 01.10.2010 in favour of
Defendant nos. 7 to 17.
10 Further since 2017 till the date, none of the Respondents
have come before the Court for adding them, as a party in the suit,
though they are aware of SRA project and even aware of various
litigation before the Hon'ble High Court and The Hon'ble Supreme
Court. Further this Chamber Summons has been taken out after
commencement of the trial and the Plaintiffs have even not given
sufficient reason for taken out this Chamber Summons at this stage of
the suit. The reasons stated by the Plaintiffs that due to great urgency
and hurry, suit was filed and they could not joined the other coowners
in the suit, is not sufficient and acceptable reason. It appears that this
Chamber Summons has been taken out by the Plaintiffs, after thought.
11 Further, the said Respondents even had same cause of
action to file the suit, but they have not filed suit against present
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Defendants, separately or even had not taken out Chamber Summons
for adding them, as a party when same cause of action was accrued to
them to file the suit.
12 The learned Advocate for Defendant no. 7 to 17 has placed
his reliance in Shaila Subrao Shetye and ors V/s Kunda Madhukar
Shetye and ors Reported in 2014 (3) Mh.L.J page no. 194 wherein her
Lordship has held and observed in para no. 27 as follows.
“Ordinarily, the Plaintiff in any suit being “Dominus Litis”
is entitled to have his say as regards the parties to the suit
and also the cause of action pleaded therein. However, it is
well established position in law that the right of bring
“Dominus Litis” of the Plaintiff is not absolute. The right
cannot be used to defeat the statutory rights of the other
parties to the suit. Therefore that cannot be an impediment
in the way of the Court considering an application either
for addition or for deletion of parties.”
with respects principle held is guideline for deciding present Chamber
Summons.
13 At this stage of the suit, proposed Respondents cannot be
added, as a party Defendants to fill up the lacuna in the evidence of the
Plaintiffs. Therefore, present Chamber Summons is not maintainable
and liable to be dismissed. With this I proceed to pass the following
order.
ORDER
Chamber Summons No. 1040 of 2019 is hereby dismissed
with costs.
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2 Chamber Summons No.1040 of 2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 05/09/2019. City Civil Court,
Gr. Bombay.
Dictated on : 05/09/2019
Transcribed on : 05/09/2019
Signed on : 19/09/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/09/2019 At 11.30 p.m. MRS. VARSHA D. PAHURKAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
05/09/2019
Judgment/Order signed by P.O. on 19/09/2019
Judgment/Order uploaded on 20/09/2019
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