Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.778 OF 2018
IN
SUIT NO.1333 OF 2009
Prashant Prakash Kamble & ors. ...Plaintiffs
V/s.
Suresh Mahadev Kamble ...Defendants
And
Mr.Kumar Mahadev Kamble & 12 ors. ...Respondents
Appearances:
Ld.Adv.Mr. Anand Vadgaonkar for plaintiff.
Ld.Adv.Mr.M.A. Attar for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 25th February,2019
ORDER
By way of this chamber summons, defendant prayed that, plaintiff
Nos.1 and 3 be directed to amend the plaint by deleting name of
deceased plaintiff No.2 and implead respondents as party plaintiffs in
the place of deceased plaintiff No.2.
2. In supporting affidavit to the chamber summons Mr.Suresh
Mahadev Kamble submitted that, plaintiffs filed this suit against
defendant for various reliefs as sought. During the pendency of the suit
plaintiff No.2 Rukmini Mahadev Kamble, age 73 years, reported expired
on 19.02.2018. The death certificate to that effect is placed on record.
The respondent Nos.1,2 and 6 are son of plaintiff No.2. Respondent
No.13 is the daughter of deceased plaintiff No.2. Respondent Nos.3
to 5 are the sons of deceased Chandrakant Kamble, who is son of
deceased plaintiff No.2 and respondent Nos.7 to 12 are the sons and
MHCC01-005539-2018
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daughters of deceased Shanta Bai, who is daughter of deceased plaintiff
No.2. All the respondents are the legal heirs and survivors of deceased
plaintiff No.2 and hence, they are necessary parties in the above suit.
Plaintiff No.2 died leaving behind respondents and defendant along
with plaintiffs and the dispute is in respect of the suit premises which
was joint family property at the material time under the partition.
Therefore, all the respondents are necessary parties. Therefore, they
are necessary to be added in the array of plaintiffs having right, title
involved in the suit property. Their presence is also necessary for
proper adjudication of the matter and therefore, after death of plaintiff
No.2 respondents be added in the array of plaintiffs and chamber
summons be made absolute.
3. Plaintiff No.1 tendered his replyinaffidavit and opposed the
chamber summons. They submitted that, proposed heirs of plaintiff
No.2 cannot be impleaded for the reasons that, suit which has been
filed is interse between brothers i.e his father and defendant No.1 for
which defendant No.1 heirs of plaintiff No.2 are not necessary party.
After death of his father responsibility as a Manager of business of his
father and thereafter he used to handover the profit to his mother. The
defendant avoiding the payment to his mother and from 1997 have
entirely stopped giving money to plaintiff. Therefore, Kumar Kamble,
who is uncle, have requested defendant to give the charge of the
business to them. But it was not being followed by defendant. Hence,
present chamber summons deserves to be rejected, as respondents are
not necessary party. Defendant forged certain documents and for this
and other reasons present suit has been filed interalia praying for
setting aside the impugned bond dt.28.02.1995 and agreement
dt.27.09.2005.
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CS 778/2018 .. 3 .. Suit No.1333/2009
4. Heard learned Advocate Mr.M.A. Attar for defendant and learned
Advocate Mr. Anand Vadgaonkar for plaintiff Nos.1 and 3. Perused the
record and submissions.
5. Respondent Nos.1 to 13 are sought to be added in the array of
plaintiff as plaintiff No.2 was reported dead, being her legal heirs. As
per death certificate Rukmini Mahadev Kamble reported expired on
19.02.2018 and chamber summons came to be tendered by defendant
on 24.04.2018. The respondents are seeking to be impleaded as party
plaintiffs in the place of plaintiff No.2, which was opposed by plaintiff
No.1.
6. It is the case of the plaintiff No.1 that, dispute is interse between
brothers i.e father of plaintiff No.1 and defendant. For which legal heirs
of plaintiff No.2 are not necessary party. Be that as it may be, but
whether these respondents in this application are having right, title and
interest in the dispute or not, it has to be determined after giving them
an opportunity to appear before the Court. No doubt plaintiff Nos.1
and 3 are dominuslitis and it is their wish to add party or not subject to
their own risk. The present respondents are sought to be added in the
array of plaintiffs being legal heirs of plaintiff No.2 by defendants.
Whether they have right, title and interest or not, is to be decided after
giving them an opportunity to put forth their case. Hence, presence of
the respondents is necessary to have complete and effectual
adjudication of the matter on merits.
7. Now, whether respondents are to be added in the array of
plaintiffs or defendants, is the only question arisen before this Court. In
this case plaintiff No.1 Prashant Prakash Kamble opposing the
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application by which respondents are sought to be added in the array of
plaintiffs. In these circumstances, if dispute is between father of
plaintiff No.1 and defendant Suresh Mahadev Kamble, the respondents
should be added in the array of defendants to place their defence or
case, before this Court. Hence, chamber summons to that effect needs
to be allowed by directing plaintiff Nos.1 and 3 to add proposed
respondents in the array of defendant as defendant Nos.2 to 14.
Plaintiff No.2 being reported expired, her name be deleted from the
array of plaintiffs. In the result, it would be proper to direct the parties
to bear their costs and hence, I proceed to pass the following order :
O R D E R
1. Chamber Summons No.778 of 2018 in Suit No.1333 of
2009 is made absolute.
2. Plaintiff Nos.1 and 3 are directed to add proposed
respondents in the array of defendant as defendant Nos.2
to 14. Writ of summons be served upon them.
3. Plaintiff Nos.1 and 3 are directed to delete the name of
plaintiff No.2 Rukmini Mahadev Kamble from the array of
plaintiffs.
4. Amended copy of plaint be placed on record and it be
served upon defendant No.1 and newly added defendant
Nos.2 to 14 and the service affidavit to that effect be placed
on record.
5. Noncompliance of the order within 14 days from this order
result in dismissal of the suit.
6. Parties to bear their costs.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.: 25/02/2019 City Civil Court, Gr. Mumbai
Dictated on : 25.02.2019
Transcribed on : 26.02.2019
Signed on : 26.02.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.02.2019 at 5.19 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 25.02.2019
Judgment/order signed by P.O. on 26.02.2019
Judgment/order uploaded on 26.02.2019
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