Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons No.1329/2019 ..1.. InS.C.Suit No.677/2016
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO. 1329 OF 2019
IN
S.C. SUIT NO. 677 OF 2016
CNR NO : MHCC010074172019
Mr. Gilder Anthony D'silva ...Plaintiff.
Versus
1. Mrs Monica Julies Kinny and Ors. ...Defendants.
AND
Pearl Apartment Cooperative Housing
Society Ltd. ...Respondent.
Appearance :
Mr. A. A. Patel, Advocate for Plaintiff.
Ms. Vaishali Ankush Ugale , Advocate for Defendants No.1 to 3, 5 & 6.
Mr. Baptist D'Souza, Advocate for Respondent.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 22ND MARCH, 2021.
ORAL ORDER
By this chamber summons the plaintiff has sought
addition of one of the defendants i.e. Registered CoOperative
Society and consequent amendment in the plaint.
2. In brief, the plaintiff's case is that, he has filed the
suit for partition and possession. Defendant No. 4 has filed
written statement and subsequently other defendants too. The
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plaintiff had taken out Chamber Summons No. 1083/2018 to
amend the plaint and the same was allowed. By virtue of the
amendment the suit is now comprising lands bearing CTS No.
211, 211/1 to 211/3. The respondent i.e. proposed defendant
society is occupying said lands. Therefore, it is necessary that the
respondent Society be added as defendant No. 7 as a necessary
and proper party to avoid multiplicity of proceedings and to have
an effective decree in the suit.
3. Defendants No. 1 to 3, 5 and 6 have opposed the chamber
summons on the ground that, it is misconceived. It is filed with a
malafide intention to harass the defendants. The amendment
sought by the plaintiff is not a subsequent event. The plaintiff
had knowledge about existence of proposed defendant society
since the year 2000. The society had even applied for deemed
conveyance. Therefore, the chamber summons is exfacie time
barred. The plaint itself is time barred. The proposed defendant
is neither a necessary nor proper party to the suit.
4. The proposed defendant i.e. the society has opposed the
chamber summons on the ground that, the construction of
buildings by the society was ready as early as 1996 and the
society is registered in the year 20002001. Thus, it is existing
since much prior to filing of the suit. The amendment is sought
after long period of time and is barred by limitation. The plaintiff
and his advocate have not served the papers on respondent
society despite repeated requests. The amendment is sought just
to harass the society.
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5. Perused. Heard.
6. Perusal of the plaint reveals that, the plaintiff is claiming
50% share in the land on which admittedly the building of
respondent society is existing. The plaintiff is also seeking vacant
and peaceful possession of 50% area of said land bearing CTS No.
211, 211/1 to 211/3. The registration certificate of the
respondent society, produced alongwith its reply, clearly reveals
that, the society's building is existing in CTS No. 211, 211/1 to
211/3. In such circumstances, the relief sought by the plaintiff is
directly affecting the rights of respondent society. Therefore,
when the subject matter of the suit is the land on which buildings
of respondent society are existing, any decision in the suit would
affect its right in such land and building. Consequently, presence
of respondent society in the suit is very much necessary to decide
it effectively. In other words, respondent society is a necessary
party to the suit.
7. The defendants as well as respondent have come with a
case that, the plaintiff had knowledge of existence of the society
since prior to filing of the suit. This aspect is giving rise to a
disputed question of fact which cannot be gone into at this stage,
but will have to be considered during trial.
8. Considering the provisions of Section 21 subsection 1 of
Limitation Act, 1963, it will be presumed that, the suit is
instituted against respondent society on the date on which it will
be added as defendant. This is however subject to the proviso to
subsection 1 of Section 21 of the Limitation Act. This means
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that, if the plaintiff satisfies the Court that the omission to include
respondent society was due to mistake made in good faith, it will
be presumed that, the respondent society is defendant in the suit
since inception.
9. In view of above discussion, therefore, I hold that there is
no legal bar in allowing the chamber summons. Hence, following
order:
ORDER
1. Chamber Summons No. 1329/2019 is made
absolute in terms of prayer Clause (a).
2. The plaintiff shall carry out necessary
amendment within four weeks from today.
3. The plaintiff shall serve the copy of amended
plaint on existing defendant and entire
proceedings on newly added defendant
society within two weeks thereafter.
4. The plaintiff shall also supply the copy of the
amended plaint to the Court for the purpose
of decree.
5. Costs in cause.
(AJIT N. MARE)
Judge,
Date : 22.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 22.03.2021
Transcribed on : 22.03.2021
HHJ Signed on : 30.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
31.03.2021 4.50 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 22.03.2021
Order signed by P. O. on 30.03.2021
Order uploaded on 31.03.2021
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