Final Order 1

Order Details: Chamber summons
Pdf Text: CS 1425-19 in LC. Suit no. 2734-1995
1 Date : 16.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1425 OF 2019
IN
L.C. SUIT NO. 2734 OF 1995
(CNR NO.MHCC010079312019)
Bharat S. Dhavda & Ors. .. Plaintiffs
Versus
Narendra A. Tanna & Ors. .. Defendants
Appearances :
Adv.S.S.Redekar for plaintiff present.
Adv.Snehal Gambhir for applicant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date :16.09.2019
ORDER
1. The applicant filed instant chamber summons for allowing
him to intervene in the present suit.
2. It is contended by the applicant that he is in occupation of
room no. 27, 1st Floor, 4th Dadiseth Road, Krishna Kunj,
Babulnath, Mumbai , since 1955. It is submitted by the applicant
that though the rent receipt is in name of one Peter Pereira but he
is paying the rent of the said room earlier to T. M. Japanwala then
to Chottalal Devchand and then to D.K. Kapadia, Laxmiben
Kapadia, Madhukant, Malti Madhukant, Sundardas, Kamlavanti
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CS 1425-19 in LC. Suit no. 2734-1995
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Dawda, Radia, Hansa Dinesh Radia and now to the Court receiver.
It is alleged by the applicant that the possession of the applicant is
within the knowledge of the Plaintiff.
3. The applicant in order to prove his possession has filed
telephone bills pertaining to year 1991, copy of passport of the
year 1977, International Driving License issued in the year 1970,
water bill prior to 1990, deed of assignment of his business, letter
issued by Defense of Muscat, death certificate of his mother who
expired on 20.03.1992 and bank passbook showing his residential
address at the room no. 27.
4. It is further contended by the applicant that in a meeting
before court receiver, the Plaintiff has given his no objection for
collecting rent from the occupant of the room no. 27. Thus, it is
contended by the applicant that the Plaintiff inspite of having
knowledge of possession of the applicant, he did not add him as
party defendant. In notice of motion no. 507 of 2018, the court
receiver was appointed to take possession of the room no.27. In
the event, he is not added as a party in the present suit, great
prejudice would cause to his possession. Hence, applicant prayed
for allowing present chamber summons and to add him party
defendant in the present suit. The applicant in support of his
submissions has relied upon following judgments:
i. (1992) 2 SCC 524 in case of RAMESH HIRACHAND
KUNDANMAL VS MUNICIPAL CORPORATION OF
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CS 1425-19 in LC. Suit no. 2734-1995
3 Date : 16.09.2019
GREATER BOMBAY & OTHERS;
ii. 2018 (3)Mhlj 54 in case of MULRAJ KHATAU & SONS
LTD. VS NAGESH SAMAR BAHADUR SINGH &
OTHERS. (BOMBAY HIGH COURT)
5. Per contra Plaintiff opposed the instant chamber summons
by filling their reply. It is submitted by the plaintiff that the
applicant is in illegal possession of the suit premises, without
permission of the landlord or from the Court receiver. The
applicant is not staying in the room no. 27 as can be seen from the
AADHAR Card of the applicant, wherein the address is of Andheri,
Versova, Mumbai. It is further submitted by the Plaintiff that the
applicant taken out chamber summons no. 1290/03. This court in
its order dated 07.11.2003 has observed that the applicant was in
possession of room no. 19 and the room no. 27 was found locked.
The court receiver was also directed to submit the state of affair of
Room No. 27. At that time, the applicant did not claim any relief in
respect of room no. 27. Therefore, now claiming possession of
room no. 27 is well founded and afterthought by the applicant.
6. It is further contended by the Plaintiff that the plaintiffs are
the dominus litus of the litigation and they should decide as to
whom should be joined as party to above suit. The applicant has
no right in the room no. 27. The applicant is neither a necessary
party nor proper party to effectually decide the issue involved in
the present suit, therefore he cannot be added as party defendant.
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7. Heard both the side, perused notice of motion and reply filed
by the Plaintiff. The Plaintiff filed instant suit alleging against the
defendant no. 1 to 3 that they are trespasser in respect of shop no.
5 & 6 and thus seeking possession of the same. The Defendants
filed their written statement resisting the suit on the ground that
they are lawful tenants of shop no. 5 & 6. On the basis of pleadings
of the parties, my learned predecessor framed issues below Exh.4
which is mentioned as under:
1. Do the Plaintiffs prove that the defendant no.4 has been
mismanaging the suit property and he is likely to create
their party interest in the suit property without the
consent of the Plaintiff ?
2. Do the Plaintiffs prove that the defendant no.4 has not
rendered account and he, therefore, needs to be directed
to give accounts of rent receipts from various tenants ?
3. Whether the Plaintiffs are entitled to a decree against the
defendant no. 4 as prayed for ?
4. What order and decree?
8. As per order 1 rule 10(2) of Code, which reads thus;
Court may strike out or add parties: The Court may at
any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear
to the court to be just, order that the name of any party
improperly joined, whether as Plaintiff or defendant, be
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5 Date : 16.09.2019
struck off , and that the name of any person who ought to
have been joined, whether as Plaintiff or defendant, or whose
presence before the court may be necessary in order to enable
the Court effectually and completely to adjudicate upon and
settle all the questions involved in the suit, be added
9. It is well settled law that Rule 10(2) gives a wide discretion
to the Court to meet every case of defect of parties and is not
affected by the inaction of the Plaintiff to bring the necessary
parties on record. A necessary party is one without whom no order
can be made effectively. A proper party is one in whose absence an
effective order can be made but whose presence is necessary for a
complete and final decision on the question involved in the
proceeding. The addition of parties is generally not a question of
initial jurisdiction of the Court but of a judicial discretion which
has to be exercised in view of all the facts and circumstances of the
particular case. The Court is empowered to join a person whose
presence is necessary for the prescribed purpose and cannot under
the rule direct the addition of a person whose presence is not
necessary for that purpose. If the intervener has a cause of action
against the Plaintiff relating to the subject matter of the existing
action, the Court has power to join the intervener so as to give
effect to the primary object of the order which is to avoid
multiplicity of action. The object of Rule 10(2) of Order 1 is not to
prevent multiplicity of action though it may incidentally have that
effect. But that appears to be a desirable consequence of the rule
rather than its main objective. The person to be joined must be one
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whose presence is necessary as a party. What makes a person a
necessary party is not merely that he has relevant evidence to give
on some of the questions involved ; that would only make him a
necessary witness. It is not merely that he has an interest in the
correct solution of some question involved and has thought of
relevant arguments to advance. The only reason which makes it
necessary to make a person a party to an action is so that he
should be bound by the result of the action and the question to be
settled, therefore, must be a question in the action which cannot
be effectually and completely settled unless he is a party.
10. Thus, after considering the relief claimed by the Plaintiff is in
respect of shop no. 5 & 6 against the defendant no. 1 to 3 for
accounts from defendant no.4, the issues framed in the matter and
the provisions of Order I rule 10(2) of code, in my view, the
applicant is neither a necessary party nor a proper party.
11. In the present matter during pendancy of the suit, my
predecessor vide, order dated 29.03.1996, passed in Notice of
Motion No. 2599 of 1995, appointed Court receiver in respect of
the entire property. The extract of minutes of the order is
reproduce below:
1. by consent of the Plaintiffs and defendant no 4 to 7, the
Court receiver, High Court, Bombay,be appointed as the
Receiver of the suit premises at Krishana Kunj, Dadiseth
Road, Babulnath, Bombay, under the provisions of Order 40
rule 1 of C.P.C. for the following purposes:
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a) To take possession of the Building;
b) To maintain the Accounts;
c) To collect Rent ;
d) To pay outgoings/Taxes;
e) To accept surrender of tenancy but shall not create
tenancy rights without the consent of the Plaintiffs and
defendants no. 4 to 7 and with the permission of the
Court;
12. Accordingly, the Court receiver on 16.07.1996 obtained the
possession of the entire building. The Court receiver prepared its
report and list of occupants. The Court receiver upon inspection
found total 36 premises in the entire building out of which 16
rooms/shops are on the ground floor, 16 rooms on 1st floor, 2 flats
on 2nd floor, 2 flats on 3rd floor. As per list of occupants, one Mr.
Peter Pareria is shown to be occupant of room no. 27 and not the
present applicant.
13. The court receiver time to time visited the building and filed
its report on 19.07.2016, 04.06.2003, 23.07.2003, 18.08.2003,
19.09.2003, 23.09.2003, 01.10.2003, 09.12.2003, 20.03.2009,
07.08.2009, 23.04.2015 and 21.12.2016. On perusal of the above
reports, the court receiver mentioned that room no. 27 was found
locked having name plate of Mr. Peter Pareria. Thus, prima facie
the contention of the applicant that he is in possession of room no.
27 appears to be false.
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14. It is not in dispute that the applicant filed Chamber
Summons no. 1290/03 against the order of sealing of room no. 19.
My predecessor vide its order dated 07.11.2003 dispose off the
said chamber summons. It was observed in the order that the
applicant was in possession of room no. 19 and room no. 27 was
found to be locked. The applicant could have pointed out at that
time that he is also in possession of room no. 27. Thus, contention
of the applicant that he is in occupation of room no. 27 cannot be
acceptable. The Court receiver is already appointed and the entire
structure is custodia legis. Thus, in view of above discussion in my
view, the applicant flailed to make out the case, hence, chamber
summons needs to be rejected. Thus, I proceed to pass the
following order:
ORDER
1. Chamber summons no. 1425 of 2019 is hereby rejected.
2. Chamber Summons No. 1425 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 16.09.2019 Gr. Bombay
Dictated on : 16.09.2019
Typed on : 16.09.2019
Draft Submitted on : 19.09.2019
Checked on : 20.09.2019
Signed on : 20.09.2019
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9 Date : 16.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21/09/2019 at 1.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
18/09/2019
JUDGMENT/ORDER signed by P.O.
on
20/09/2019
JUDGMENT/ORDER uploaded on 21/09/2019
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