Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.1175/2019 ..1.. Suit No.2196/2009
CNR No.MHCC010065972019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1175 OF 2019
IN
SUIT NO.2196 OF 2009
Nandkumar A. Temkar .. Applicant/
Proposed plaintiff
In the matter between
Smt. Rajni William Menezes and Another .. Plaintiffs
Versus
Mr. Pravin Virji Maru .. Defendant
Mr. A. R. Pai & Ms. Neuty Thakkar, advocate for applicant
Ms. Deepali Bosamia, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 24th July, 2019
ORAL ORDER
Chamber summons is taken out by the applicant with a prayer to
substitute the plaintiffs with him as per schedule of amendment
annexed to chamber summons.
2. It is the contention of applicant that suit is filed by plaintiffs
seeking decree and order for possession of suit premises from defendant
along with other reliefs. Suit premises is portion admeasuring 15 sq.ft.
being the second entrance of Shop Nos.5, 6, and 6A forming part of
larger premises. Suit premises are on the outer bounds of larger
premises and defendant has encroached in suit premises without any
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right, title and interest therein. Present suit is filed for eviction of
defendant from suit premises.
3. It is further contended that plaintiffs were the erstwhile tenant
of larger premises. During the pendency of suit, applicant along with his
son and wife have acquired tenancy rights of the premises viz bearing
Shop Nos.5, 6, 6A & 6B admeasuring 655.13 sq.ft. carpet area on the
ground floor of the building known as Sonwadi Mansion, at the junction
of Lady Jamshedji Road, Taikalwadi, Mahim (West), Mumbai 400 016
standing on land bearing Final Plot No.109 of TPS III of Mahim Division
along with suit premises by duly registered Tenancy Agreement dated
04.05.2009 bearing Registration No. BBE4/5146/2019 with the
consent of landlord. Now, plaintiffs have no interest to prosecute the
present suit in view of surrendering of their tenancy rights in favour of
applicant. Therefore applicant is required to be substituted in place of
plaintiffs under Order I Rule 10 of the Code of Civil Procedure.
Accordingly, applicant urged to allow chamber summons in above
terms.
4. Defendant filed his reply and objected to chamber summons
contending that applicant has no locus standi to take out present
chamber summons as there is no privity of contract either with original
plaintiffs or with present applicant. Original plaintiffs have not assigned
any right in respect of suit premises. Landlord of suit property has not
granted tenancy in respect of suit premises and therefore present
chamber summons is not maintainable. Alleged cause of action between
plaintiffs and defendant comes to an end and now there is no cause of
action to continue the suit. Original plaintiffs have admitted in Tenancy
Agreement that suit premises is outside the tenanted premises and
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CS No.1175/2019 ..3.. Suit No.2196/2009
tenancy agreement is in respect of Shop Nos. 5, 6, 6A & 6B. Therefore,
applicant is not proper and necessary party to the suit. Thus, defendant
by denying contention of applicant as mentioned in reply prayed to
dismiss chamber summons with costs.
5. Perused chamber summons, affidavit in support of it, reply of
defendant, pleadings of the parties and documents filed on record.
Heard respective counsel for parties. They advanced their arguments as
per respective contention of the parties.
6. Chamber summons is taken out by the applicant in order to
substitute his name in place of plaintiffs and consequential amendment
in the body of the plaint in view of tenancy agreement dated 4th May,
2019 executed between applicant, his wife and son and landlord and
outgoing tenants who are also plaintiff Nos.1 and 2 as per schedule B.
Applicant has claimed assignment of rights relating to tenanted
premises including suit premises by virtue of said agreement.
7. So far as contention of defendant that original plaintiffs have
not assigned any right in respect of suit premises is concerned; that has
to be considered at the time of final adjudication of suit. From the copy
of tenancy agreement dated 04.05.2019 annexed to chamber summons,
it is clear that tenancy right has been created in favour of applicant, his
wife and son in relation to shop Nos.5, 6, 6A and 6B of the ground floor
of the building known as Sonwadi Mansion, Taikwalwadi, Mahim West,
Mumbai. Said agreement is signed by outgoing tenants and also by the
landlord of said premises. It is pertinent to note that original plaintiffs
have mentioned in plaint that they are joint tenants of above referred
premises and that the defendant is rank trespasser in respect of part of
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the premises to the extent of 6 x 2.5 x 7 feet (length, width and height).
Whether suit premises is part of said tenanted premises is to be
adjudicated while deciding the suit. At this stage, keeping in view above
contention of original plaintiffs and considering the copy of tenancy
agreement dated 4th May, 2019 which has been executed during the
pendency of present suit, present chamber summons needs to be
allowed under Order XXII Rule 10 of CPC. Hence, pass following order.
ORDER
1. Chamber Summons No.1175 of 2019 is allowed and made
absolute in terms of prayer clause (a).
2. Applicant to carry out amendment as per schedule B annexed to
chamber summon within period of one week from the date of
this order and copy of amended plaint be served upon
defendant.
3. Costs will be the cause in the suit.
(M. T. Asim)
Judge
Date : 24.07.2019 Gr. Bombay
Typed on : 24.07.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25.07.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
24.07.2019
JUDGMENT/ORDER signed by P.O.
on
25.07.2019
JUDGMENT/ORDER uploaded on 25.07.2019
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