Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.1560/19 ..1.. Suit No.2040/19
CNR No.MHCC010088332019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1560 OF 2019
IN
NOTICE OF MOTION NO.2270 OF 2019
IN
SUIT NO.2040 OF 2019
Mrs. Anita Anil Naik .. Plaintiff
Versus
Mr. Mahesh Laxman Dhende and others .. Defendant
Mr. Arvind A.Taral, advocate for plaintiff
Ms. Deepali M. Patankar, advocate for defendant No.1
Mr. Prakash Sutar, advocate for defendant No.2
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 17th January, 2020
ORAL ORDER
Chamber summons is taken out by the plaintiff for amendment
of plaint as per schedule annexed to it.
2. It is the contention of plaintiff that she is lawful tenant,
possessor and owner of suit room premises viz 402, D Wing,
Shankeshwar CHS Ltd., A. G. Pawar Lane, Byculla, Mumbai27. Real
dispute is between plaintiff and defendant No.1. Other defendants have
given consent for transferring suit room premises in her favour.
Defendant No.2 is landlord and he is not necessary party in said
proceeding because he has already transferred tenancy right in her
favour. Therefore, after execution of surrender letter by legal heirs of
previous tenant Smt. Subhadra Dhende, now, defendant No.1 has no
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rights in suit premises. But he fraudulently kept his some articles in suit
premises and causing disturbance and obstacles to plaintiff and her
family members. Defendant No.1 and his other family members are
Hindu Joint Family. After demise of previous tenant, her son Rajaram
Dhende defendant No.5 become Karta of said Hindu Jointly Family
and he has surrendered tenancy right in the capacity of Karta of Hindu
Joint Family which is binding upon defendant No.1. Defendant No.2 is
not necessary party in the said proceeding because real dispute is
between plaintiff and defendant No.1. No prejudice will be caused to
defendants if present chamber summons is allowed. Accordingly,
plaintiff made prayers in above term.
3. Defendant No.1 filed reply and objected the chamber summons.
It is contended that defendant No.2 is landlord of Ketan Building in
which suit room premises is situated and he is necessary party to the
suit proceeding. Plaintiff who claims the suit room premises belong to
her had obtained tenancy right through defendant No.2 without
informing all legal heirs of original tenant Smt. Subhadra Dhende.
Defendant No.2 without informing all legal heirs of original tenant
fraudulently transferred the rent receipt and light bill in respect of suit
room premises in the name of plaintiff. Consent of legal heirs of
original tenant has not been taken while transferring right in the name
of plaintiff. Original tenant is lawful tenant, possessor as well as owner
of suit room premises since 1985.
4. It is further contended that defendant No.2 is well aware about
legal heirs of original tenant. However, he purposefully has not taken
consent of one of the legal heirs who is residing in suit room premises.
Defendant No.2 is necessary party to suit proceeding because through
his consent the record and rent receipt has been changed. He has also
signed registration papers as landlord in the Registration office for
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transferring suit room premises in the name of plaintiff. Accordingly,
defendant No.1 prayed for dismissal of chamber summons.
5. Defendant No.2 filed reply and contended that Subhadrabai
Dhende died in the year 1999. After her death he contacted Dhende
Family regarding transfer of rent receipt in the name of one of the legal
heirs of Dhende Family. By letter dated 09.05.2018, Rajaram Dhende
and Mrs. Ratnamala Dhende jointly surrendered tenancy right in
respect of suit premises to him. So also, by letter dated 10.10.2018,
Mangesh Dhende surrendered tenancy rights of suit premises to him.
6. It is further contended that after receipt of surrender letters he
issued notice dated 10.10.2018 if anybody remained as legal heirs and
has any objection regarding aforesaid surrender letters. But said notice
returned unclaimed. Therefore, he also issued notice dated 03.11.2018
by hand delivery for the same. After receipt of said notices, Mr. Rajaram
Dhende, Smt Ratnamala Dhende and Laxman Dhende met him and told
that they have decided to surrender suit room premises and
accordingly, they surrendered their tenancy rights in his favour.
7. It is further contended that after receipt of surrender letters
from legal heirs of Subhadra Dhende, he issued rent receipt in the name
of plaintiff from January, 2019 and declared her as his lawful tenant.
She is paying regular rent to him as her landlord. Plaintiff is in peaceful
possession and residing in suit room premises along with her family
members. He came to know that police have tried to remove plaintiff
and her husband from suit room premises which is bad in law and
without his consent. He transferred tenancy rights of suit room premises
in favour of plaintiff through agreement of transfer tenancy right dated
23.05.2019. Defendant No.1 Mahesh Laxman Dhende is not his
tenant and reply filed by him is baseless and bad in law.
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8. Plaintiff filed rejoinder and reiterated the facts mentioned in
affidavit in support of chamber summons. She denied that defendant
No.2 has fraudulently transferred rent receipt in her name. It is
contended that defendant No.2 is not necessary party to the suit.
Accordingly, she prayed for allowing chamber summons.
9. Perused chamber summons, affidavit in support of it, reply of
defendant No.1, defendant No.2, rejoinder of plaintiff and plaint. Heard
respective counsel for parties. During course of argument learned
advocate for defendant No.2 submitted that defendant No.2 has no
objection to allow present chamber summons.
10. I would like to mention that it is settled law that necessary party
is a person who ought to have been joined as a party and in his absence
no effective decree can be passed at all by the court while proper party
is a party who though not a necessary party, is person whose presence
can enable the court to completely, effectively and finally adjudicate
upon all matters in dispute in the suit though he need not be a person
in favour or against whom decree is to be made. In view of this legal
position now I consider present chamber summons.
11. I have carefully gone through plaint. If the relief sought in terms
of prayer clause (a) is considered in light of averments made in the
plaint then it is clear that plaintiff has not claimed any relief against
defendant No.2, the landlord of suit room premises. Relief sought is in
relation to permanent injunction restraining defendant from
dispossessing plaintiff from suit premises or any part thereof without
following due process of law. Allegation of harassment is made against
defendant No.1 in para 10 of the plaint. There is no specific averment
that defendant No.2 has tried to disturb the alleged possession of
plaintiff over suit premises. In my view merely that defendant No.2 is
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landlord of suit premises his presence is not necessary for complete and
effective adjudication of controversy between the parties. In the facts of
matter defendant No.2 is neither necessary nor proper party to the
present suit as suit being simplicitor for injunction and in real sense no
relief has been claimed against defendant No.2. That being so, it is just
to permit plaintiff to delete name of defendant No.2 from array of cause
title. Even otherwise plaintiff being dominus litis can abandon claim
against any of the defendants. Therefore, I am inclined to allow present
chamber summons. Hence, pass following order:
ORDER
1. Chamber Summons No.1560 of 2019 is allowed and made
absolute in terms of prayer clause (b).
2. Plaintiff has to carry out amendment as per schedule annexed to
chamber summons within period of two weeks from the date of
this order.
3. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 17.01.2020 Gr. Bombay
Typed on : 17.01.2020
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23.01.2020
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
17.01.2020
JUDGMENT/ORDER signed by P.O.
on
18.01.2020
JUDGMENT/ORDER uploaded on 23.01.2020
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