Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No. 1203/2019 in
L.C. Suit No. 1516/2017
MHCC010068122019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1203 OF 2019.
IN
L.C. SUIT NO. 1516 OF 2017.
M/s. Sharada International. ...…......................... …... Plaintiff.
V/s.
Pramod Krishnappa Kotian and the Others. ....... …... Defendants.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 21st February, 2022.
APPEARANCES :
Mr. Bejat Irani, the Ld. Advocate for Plaintiff.
Mr. Asit Singh, the Ld. Advocate for Applicant.
Mr. Ravindra Singh, the Ld. Advocate for Defendants No.1 to 3.
Adv. Sunil C. Khandagale, the Ld. Advocate for Defendant No.6/MCGM.
*****
01. The applicant Mr. K. Ashok Rai has taken out this Chamber
Summons for his addition as a party defendant in this Suit. By filing this
Chamber Summons, he came with a specific case that going through the
pleadings, he realized that the plaintiff and the defendants brought this
suit in collusion and claimed themselves as the ‘owners’ in respect of the
property in question. However, this is not the position. Rather, initially,
this suit property was belonging to ‘Sir Mohammed Yusuf Trust X Kothi’,
- Registered Trust. Earlier, he filed Suit No.1529/2004, against Trust, in
the Small Causes Court, at Mumbai, in respect of this suit premises. This
suit was decreed by virtue of 'consent terms' and the defendants therein
admitted his status as a monthly 'tenant/ lessee' of the suit premises. He
further submitted that, accordingly, the regular agreements came to be
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.2. CH/S No. 1203/2019 in
L.C. Suit No. 1516/2017
executed on 05.12.1990 and the Rectification Deed on 26.12.2018. This
would show that in fact, he is the actual 'owner/ lessee' in respect of the
suit property. However, the parties to this suit are trying to get Orders of
this Court in his absence and hence, he be joined as party to this suit.
02. The plaintiff objected this application on the count that the
applicant is nothing to do with the suit. In fact, this plaintiff purchased
the suit property from 'Shri. Haroon Alim A.R.Yusuf of Sir Mohammed
Yusuf Trust' and by virtue of this conveyance, he is the owner. Further,
on the basis thereof, even Mutation Entry No. 316 and 7/12 extract of
the suit property came to be updated in his favour. However, in the year
2015, when he entered into the structure, erected by the original land
owner of the suit property, for the purpose of repairs, I. T. Department
claimed that the suit property is attached for non payment of Taxes. He
submitted that the applicant ought to have issued the notice to 'Lessor'
for any alleged transfer of rights of the suit property instead of the filing
Chamber Summons. Further, as he is lessee, he can not claim ownership
or title of the suit land. In the circumstances, he prayed for rejection of
his Chamber Summons. Following him, even defendant No.1, in view of
his reply, and defendant No.4, in view of written submission, denied the
Chamber Summons. They submitted that the applicant in collusion with
the plaintiff filed this Chamber Summons and therefore, it needs is to be
rejected. Heard both the sides in reference to their respective pleadings.
03. Considering the record, the points for determination, along-
with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether presence of the applicant is
necessary in order to enable this Court
effectively and completely to adjudicate
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.3. CH/S No. 1203/2019 in
L.C. Suit No. 1516/2017
upon and settle all the questions
involved in this suit ?..................................No.
(ii). What Order ? .............…....................... …. As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO. 1:
04. By filing this Chamber Summons, the applicant's anxiety is
to join as party defendant to the proceeding, mainly on the basis of the
alleged consent decree passed in Suit No.1529/2004, whereby his status
was admitted as 'tenant/ lessee' of the suit premises. Moreover, in view
of the said agreement of dtd. 05.12.1990 and Deed of Rectification dtd.
26.12.2018, he is posing himself as the actual 'owner/ lessee' of the suit
premises. He further contended that the parties to this suit are trying to
grab the Orders of this Court in his absence and therefore, his presence
is required. On this background, to ascertain his necessity in the suit, as
per O. I R.10 of the C.P.C.,1908, the criteria would be whether presence
of the applicant is a must to 'effectively and completely' adjudicate upon
the suit issues.
05. Having considered the rival submissions, at this juncture, it
is to be noted that by filing of this suit, the plaintiff is presenting himself
as owner of the suit property, for a consideration. Further, he contended
that he is in lawful use, occupation and possession of the suit premises.
However, to his utter shock, on 30.09.2015, some of the persons known
to defendant No.1, forcibly attempted to enter upon the said premises.
Factually, the defendants have no rights in the suit premises. However,
even thereafter, defendant Nos.1 and 2 in collusion and with the help of
some Officers of defendant No. 6 are bent upon to construct illegal and
unauthorized first floor on the suit premises. On 20.06.2017, in-spite of
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.4. CH/S No. 1203/2019 in
L.C. Suit No. 1516/2017
his written complaint, as regards the said illegal construction, no steps
were taken by defendant No. 6. Further, as the the plaintiff is the owner
of the suit premises, defendant No. 6 has no right to grant a permission
in favour of the defendants to repair and reconstruct the same. On this
background, he had to file this suit mainly for the reliefs of declaration
and perpetual injunction. The plaint averments, more precisely para 54,
goes to show that as of now, the plaintiff is not able to file substantive
suit for declaration that defendant Nos. 1 to 3 forged and fabricated the
documents. As such, he sought leave of this Court under O. II R. 2 of the
C.P.C., 1908, to file such suit at later stage.
06. Considering this tenor of plaint, now, it is crystal clear that
the plaintiff's only worry to prefer this suit is to restrain the defendants
from carrying any illegal construction over the suit premises. Moreover,
he prayed for directions against the Officers of defendant No.6, in that
regard. Here, it is pertinent to note that, at no stage of the matter, even
the plaintiff is seeking substantial relief of his declaration as 'ownership'
of the suit premises. Whereas, in this Chamber Summons the applicant
is presenting himself as 'the lessee' of the suit premises i.e. the rights he
allegedly acquired in view of the said earlier suit in between the original
landlord. It is true that at some places, he pleaded to be 'owner / lessee'
of the suit premises. Be that as it may, the fact remains that the suit has
a limited scope and by no stretch of imagination, it is touching alleged
rights of the applicant is 'tenant' of the suit premises. At this juncture,
even it would not be out of place to mention the original landlord is still
maintaining his distance from the suit. In the circumstances, taking into
account the restricted scope of this suit, I am of the view that presence
of the applicant is absolutely 'not necessary' in order to enable the Court
to 'effectively and completely' adjudicate upon and also to settle all the
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.5. CH/S No. 1203/2019 in
L.C. Suit No. 1516/2017
questions involved in this suit. He is neither proper nor even necessary
party for this suit. In the result, I feel that this Chamber Summons needs
to be rejected. Consequently, I answered point No.1 in the negative and
in answer to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber summons No. 1203/2019 is rejected.
(ii). Chamber summons No. 1203/2019 is disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 21.02.2022. City Civil Court, Mumbai.
Dictated on : 21.02.2022
Transcribed on : 22.03.2022
Signed on : 23.02.2022
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.6. CH/S No. 1203/2019 in
L.C. Suit No. 1516/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On at 23.02.2022 5.30 p.m. Mrs. S.R.Mejari
UPLOADED DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.) H.H.J. A.G. Santani
C.R. No.11
Date of Pronouncement of
Judgment/Order
21.02.2022
Judgment /Order signed by P.O. on 22.02.2022
Judgment/Order uploaded on 23.02.2022
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