Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1593 OF 2019
IN
SUIT NO. 2168 OF 2019
(CNR NO. MHCC01-008994-2019)
Bachhubhai Devshi Furiya ...Plaintiff
V/s.
1. Nav Dariya Mahal Co-operative
Housing Society Ltd. ...Defendant
2. Repair & Renovation Committee of
Dariya Mahal Basement Garages ...Respondent
Appearances:
Ld. advocate Mr. Nilu Mishra for plaintiff.
Ld. advocate Mr. Bhosle for defendant.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 07/12/2021.
ORDER
This chamber summons is taken out by the plaintiff for
impleading respondent as defendant no.2 and making amendment in
the plaint. This chamber summons is resisted on behalf of defendant by
filing its reply.
2. Read the present chamber summons, reply of the defendant
thereon. Heard arguments advanced on behalf of both the sides at
length. Perused record.
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3. The plaintiff has submitted that the plaintiff has filed suit for
declaration and injunction against the defendant. During the course of
hearing on 03/08/2019, advocate for the defendant submitted before
the Court that the defendant has no right in the suit garage and has no
relation/concern with the respondent. The advocate for defendant has
also submitted that the maintenance receipt and/or any other
documents issued by the respondent in favour of the plaintiff and/or
their predecessor. Pursuant to the statement made by advocate of the
defendant, on instructions of representative of the defendant present in
the Court, this court has directed to the plaintiff to take necessary steps.
4. The plaintiff has further submitted that the plaintiff had been
paying the maintenance charges to the respondent, whose office is
common to the defendant herein. The plaintiff has always been
informed that the defendant and respondent are part of the defendant
and act under and on behalf of the defendant. However, pursuant to the
statement made on 03/08/2019, it is necessary to implead to
respondent as defendant in the present suit.
5. The plaintiff has further submitted that as per the plaintiff’s
knowledge. Some members and officer bearers of the defendant society
are office bearers of the respondent committee. The plaintiff had been
paying the maintenance charges in the office of the defendant, though
receipts are issued in the name of the respondent. The plaintiff came to
know that it is typographical mistake in the name of the defendant. The
actual name of the defendant is Nav Dariya Mahal Co-operative
Housing Society Limited. On these grounds, the learned counsel on
behalf of the plaintiff has submitted that the respondent is the necessary
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party and name of the defendant no.1 is wrongly typed as “ New Dariya
Mahal Co-operative Housing Society Limited” instead of “Nav Dariya
Mahal Co-operative Housing Society Limited”. Therefore, learned
advocate for the plaintiff has requested that chamber summons may be
kindly allowed.
6. The learned counsel on behalf of the defendant has no objection
for making correction of the name of the defendant. But the learned
counsel for the defendant has strongly opposed for allowing prayer (a)
of the chamber summons about adding or impleading respondent as the
defendant. The learned counsel on behalf of the defendant has further
submitted that respondent is not a registered body. Therefore,
respondent has no any legal juridical person. Therefore, the plaintiff has
no right to sue against the present respondent.
7. The learned counsel on behalf of the defendant has placed
reliance in support of his contentions on the following judgments.
i) In the case of Food Corporation of India V/s. Truck Operators Union
Nabha and Anr., 2015 AIR CC 785, decided on 24/12/2014. The
Hon’ble Punjab and Haryana High Court has observed that,
“ Accordingly, I have no hesitation in holding that the civil suit filed on
behalf of the Truck Operators Union, Nabha, an unincorporated and
unregistered body, is not maintainable.”
ii) In the case of Brahmani Club through H.Bedi, Joint Secretary V/s.
State of Orissa and Others, 1972 SCC OnLine Ori 153, decided on 14th
November, 1972. The Hon’ble Orissa High Court has observed in para
no. 10 that, “ an unregistered and non-proprietary club is not a
juridical person and as such cannot sue or be sued has been held in
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N.E.P. Club V. Sadullah.”
8. On scrutiny of the record it appears to me that the present suit
came to be filed on behalf of plaintiff against the defendant for
declaration and injunction in respect of the suit premises i.e. Garage No.
14-I. admeasuring approximately 200 sq.ft. in the basement of Dariya
Mahal Building, B-Block, situated at 80, Napean Sea Road, Mumbai. On
perusal of the record produced on behalf of the plaintiff along with suit
on page no.19, it appears to me that the respondent had been issued
bill in respect of the suit property in favour of the plaintiff dated
01/08/2012. Therefore, I am of the view that respondent is the
necessary party in the present suit. During the course of argument, the
learned counsel on behalf of the defendant has submitted that the
respondent is not a registered committee and therefore, the respondent
is not any juridical person. The plaintiff has no right to add to the
present respondent as defendant in the present suit. Therefore, I am of
the view that the plaintiff has not stated in the present chamber
summons about the registration of the respondent. The defendant has
also not brought any document to show that the respondent is required
registration and also not produced any documents or proof as to show
that the respondent is the unregistered committee.
9. I have gone through the above citations referred on behalf of the
defendant. The ratio held in above citations are not applicable to the
present case in my hand. The ratio held in above citations are after the
conclude of the trial and the trial of the present case in my hand is yet
to be began. Therefore, at this stage, it is not required to say whether
the respondent is registered or not. The present suit against the
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respondent is maintainable or not that will be decided after completion
of the trial.
10. From above my discussion, I come to the conclusion that if this
chamber summons is to be allowed, then certainly the nature of the suit
will not be changed and it will not cause any hardship on the part of the
defendant. Therefore, I inclined to allow this chamber summons. Hence,
I proceed to pass following order.
ORDER
1. Chamber Summons No.1593/2019 is hereby allowed as prayed for.
2. The plaintiff and his advocate are hereby directed to carry out
proposed amendment within stipulated period.
3. Chamber Summons No.1593/2019 is disposed off accordingly.
Sd/-
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :07/12/2021. Gr. Mumbai
Dictated on: 07/12/2021
Transcribed on: 08/12/2021
HHJ signed on:08/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
08/12/2021 at 5.00 p.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
07/12/2021
Judgment/order signed by P.O. on 08/12/2021
Judgment/order uploaded on 08/12/2021
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