Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch/Sum. 900/18 in Stamp No.6831/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.900 OF 2018
IN
STAMP NO.6831 OF 2018
M/r. Mohammed Yakoob Shaikh Plaintiff.
V/s.
Municipal Corporation for Greater Mumbai. Defendants.
And
Mr. Akhlaq Ahmed Shaikh Applicant.
Advocate Mr. Rohit Pandey h/f Adv. V.T. Dubey for Applicant.
Advocate Mr. Yadav h/f Adv. Shukla for Plaintiff.
Advocate Mr. Khandagale for Defts./BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 12th JUNE, 2018
ORAL ORDER
The applicant has filed present chamber summons in the
present suit for adding him as a defendant.
2. The applicant submits that he is the owner of suit premises.
The original owner Mohd. Shami Mohd. Ali Shaikh vide Will dated
15.02.1981 bequeathed the suit premises to him. He further submits
that he has also received Legal Heir Certificate dated 12.09.2006 from
Sub Division Magistrate, Nijamabad, Ajamgarh as being the legal heir of
Mohd. Shami Mohd. Ali Shaikh and the said suit property is bequeathed
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:2: Ch/Sum. 900/18 in Stamp No.6831/18
to him by the Will dated 15.02.1981. He has become the owner of suit
property and as a owner he is the necessary party to the said suit.
Therefore, he prayed to allow the chamber summons in terms of prayer
clause.
3. Notice of the present chamber summons issued to plaintiff.
Plaintiff filed their reply, thereby strongly objected present chamber
summons on the ground that the applicant is not the owner of said
property. The Will dated 15.02.1981 is forged and fabricated
document. Unless the applicant obtained probate from the Hon'ble
High Court in respect of the suit property, he again claim claimed
ownership over the suit premises. The plaintiff denied that the applicant
is the legal heir of Late Shri Mohd. Shami Mohd. Ali Shaikh. Hence, he
prayed to reject the chamber summons.
4. Heard advocate Mr. Rohit Pandey for applicant and
Advocate Yadav for plaintiff.
After perusal of record it is observed that alongwith the
chamber summons the applicant has filed copy of Will dated
15.02.1981, in which the description of the suit property is not
mentioned. In the said Will it is only mentioned that the entire movable
and immovable property in Mumbai and Nijamabad, Ajamgarh of Late
Shri Mohd. Shami Mohd. Ali Shaikh, the testator, is giving in the name
of applicant. From the record it is also revealed that the Probate
Petition regarding the said Will is pending before the Hon'ble High
Court. Though the applicant filed copy of heirship certificate on record
but it is not on Court Fee Stamp and it is the xerox copy. Whether the
said document is genuine or forged, it is the matter of evidence. From
the documents filed by the applicant, it is not proved that he is the
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:3: Ch/Sum. 900/18 in Stamp No.6831/18
owner of suit property. Even the BMC has not issued notice in the
name of applicant. The applicant has relied upon judgment of Apex
Court in Civil Appeal No.9477/96 in the case of Alliji Monoji & Co.
V/s Lalji Mavji and Others decided on 12.07.1996, in which it has
held that
Civil – perpetual injunction – Section 351 and
Order 1 Rule 10 of CPC, 1908 – appeal against High
Court in refusing to interfere with Order passed by
Trial Court impleading landlords – in event of building
being demolished, right, title and interest of landlord
would not directly be affected – landlord would be
proper party though no relief has been sought for
against landlord.
5. As per the said citation the person, who is the landlord,
only the proper party though no relief has been sought for against
landlord.
6. Per contra, the advocate for the plaintiff relied upon the
citation of Hon'ble Apex Court reported in 2017 (6) ALL MR 420 (S.C.)
in the case of Mohamed Hussain Gulam Ali Shariffi V/s Municipal
Corporation of Greater Bombay and others, in which it has held that
Demolition notice – Challenge – Necessary Party
– Suit filed only against Municipal Corporation –
Applicants claiming to have purchased suit property
from plaintiff, sought to be added as defendants –
Held, for deciding legality of demolition notice,
presence of applicants is not required – Rights
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:4: Ch/Sum. 900/18 in Stamp No.6831/18
between plaintiff and applicants regarding suit
property can be decided in separate suit – In instant
suit, applicants are neither necessary nor proper
parties.
7. In the present suit prima facie the applicant is failed to
bring on record that he is the landlord or owner of the suit premises
and even he has not shown to adjudicate the matter whether he is the
necessary party in the present suit. In such circumstances, he is not
entitled to implead as a defendant. Hence, I pass following order :
ORDER
1. Chmber Summons No.900/18 is rejected.
2. No order as to costs.
4. Ch/Sum disposed of accordingly.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 12/06/2018.
Dictated on : 12/06/2018
Transcribed on : 13/06/2018
Signed on : 13/06/2018
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:5: Ch/Sum. 900/18 in Stamp No.6831/18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/06/2018 At 5.39 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
12/06/2018
Judgment/Order signed by P.O. on 13/06/2018
Judgment/Order uploaded on 13/06/2018
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