Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS159619 IN L C SUIT 292211
MHCC010090022019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 1596 OF 2019
IN
L C SUIT NO. 2922 OF 2011
Mr. Ram Akshaibar S. Varma ]....Plaintiff.
Versus
Municipal Corporation of Greater
Bombay and Others ]…Defendants.
And
Smt. Saroj Jagadambaprasad Varma ]... Applicant (proposed
plaintiff No.3)
Appearance:
Ld Tripathi for plaintiff.
Ld. Advocate Chandramore for Defendant No.1/MCGM
Ld. Advocate Vivek sharma @ Advocate Subhedar for Defendant No.2
to 4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 8/8/2022
ORAL ORDER
1) Applicant/ proposed plaintiff No.3 has taken out present
chamber summons for allowing him to amend the plaint as per
Schedule.
2) Perused the chamber summons, affidavit in support of
chamber summons, affidavit in reply of plaintiff and affidavit in reply
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of defendant No.2 to 4. Heard Ld Advocate for applicant/proposed
plaintiff and Ld Advocate for defendant No.1, 2 to 4 and defendant
No.6.
3) Ld Advocate for applicant/proposed plaintiff argued that
her husband Late Mr.Jagadambaprasad Bodhiram Varma along with
present plaintiff was carrying business in partnership under the name
and style of M/s. Bright & Bright Electroplating Works from the suit
premises (Gala No.29). After the death of her husband she was
inducted as a partner in the said business. The applicant is having
equal tenancy right in the suit premises and being partner she is
having 50% share in the partnership business. As applicant is having
equal 50% share in the suit premises and the partnership business, her
right and interest in the suit premises are likely to be affected by the
adjudication in the present matter. Therefore, applicant is necessary
and proper party to the present suit. By the present chamber summons
applicant want to add herself as a plaintiff to the present suit.
Moreover, applicant wants to incorporate Bright & Bright
Electroplating Works a partnership firm as plaintiff No.1 in the title
clause of the suit and want to incorporate the facts about the
partnership between plaintiff and her in the plaint. Therefore,
proposed amendment is necessary for deciding the real controversy
between the parties and for avoiding multiplicity of the suits.
4) On the other hand Ld Advocate for defendant No.1 and 6
submitted that appropriate order be passed. Ld Advocate for
defendant No.2 to 4 argued that the present suit is simplicitor suit for
permanent injunction. The suit was filed by plaintiff in his personal
capacity. There is no pleading about the partnership and applicant has
not produced any document to show that applicant was inducted as a
partner after death of her husband. The applicant is not necessary and
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proper party to the present suit. Tenancy right cannot be transferred
without permission of the defendant No.2 to 4 who are landlords of
the suit premises. The partnership dissolves after the death of one of
the partner. Therefore, present chamber summons is devoid of merit
and abuse of process of law. Hence, Ld Advocate for defendant No.2
to 4 submitted that present chamber summons be dismissed. Ld
Advocate for defendant No.2 to 4 kept his reliance on the following
citations:
1) The Firm of Mahadeva Rice and Oil Mills by partners V.
Jayaramakrishnan and others v. Chennimalai Goundar, in
C.R.P.Nos.1342 and 1343/65, 16/12/1966;
2) Kasturi v. Iyyamperumal & Ors, (2005) 6 SCC 733.
5) On the other hand from the affidavit in reply of the
plaintiff it appears that he supported the claim of the applicant and he
has given no objection for allowing the present chamber summons.
6) From the matter on record it appears that plaintiff has
filed the present suit for simplicitor perpetual injunction restraining
defendants from forcibly demolishing the suit premises or from
forcibly dispossessing the plaintiff from the suit premises without
providing permanent alternate accommodation in lieu of suit premises
and without following due process of law. Admittedly, the plaintiff is
carrying the business under the name and style of M/s. Bright & Bright
Electroplating Works from the suit premises. The copy of tenancy
agreement at Exh.C to the plaint reveals that it was executed between
the landlord and present plaintiff Ram Akshaibar S. Varma and
husband of applicant Shri. Jagadambaprasad Bodhiram Varma of M/s.
Bright & Bright Electroplating Works which are referred as the tenant
of the suit premises. The plaintiff has not disputed the claim of
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applicant that she is having 50% tenancy right in the suit premises and
50% share in the partnership business. The document i.e. agreement
of transfer of 50% of tenancy right in the suit premises annexed with
the affidavit in support of chamber summons also supports the
contention of applicant. Therefore, from the matter on record ex facie
it appears that applicant is having some legal right or interest in the
suit premises along with the plaintiff. Therefore, naturally the legal
right/interest of the applicant in the suit premises is likely to be
affected by the adjudication in the present matter. Therefore, presence
of the applicant before the court appears necessary in order to enable
the court effectively and completely to adjudicate and settle all the
questions involved in suit. The applicant appears to have direct and
legal interest in the controversy involved in the suit and the
adjudication in the present matter may affect the applicant legally. As
such the applicant fulfills the test laid down for addition of parties
under Order 1 Rule 10 of Code of Civil Procedure in the judgment of
The Firm of Mahadeva Rice and Oil Mills by partners V.
Jayaramakrishnan and others v. Chennimalai Goundar,
C.R.P.Nos.1342 and 1343/65, 16/12/1966 and Kasturi v.
Iyyamperumal & Ors, (2005) 6 SCC 733 cited supra relied by the
Advocate for defendant No.2 to 4. Therefore, court find that applicant
is necessary and proper party to the present suit.
7) From the schedule of the proposed amendment it appears
that plaintiff wants to join Bright & Bright Electroplating Works a
partnership firm as plaintiff No.1 want to join herself as plaintiff No.3
and want to incorporate the fact of partnership firm and fact that
plaintiff and applicant are the partners of partnership firm Bright &
Bright Electroplating Works. Considering the nature of suit and no
objection given by the plaintiff for allowing the chamber summons the
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proposed amendment appears necessary for deciding the real
controversy between the parties and for avoiding the multiplicity of
proceedings. It is settled law that merits of amendment can't be
considered at this stage. The proposed amendment is not likely to
change the nature of suit and it is not likely to cause any prejudice to
defendants. Moreover, proposed amendment appears necessary for
determining the real controversy between the parties. Therefore, there
appear no substance in the contention of Ld Advocate for defendant
No.2 to 4 that present chamber summons is abuse of process of law
and it is devoid of merit. Moreover, it appears from the record that
trial of the suit is yet not commenced.
8) Considering the matter on record and above discussion
present chamber summons deserves to be made absolute. Therefore,
court proceeds to pass the following order:
ORDER
1) Chamber Summons No.1596 of 2019 is made absolute.
2) Plaintiff/proposed plaintiff No.3 shall carry out the amendment as
per schedule within 14 days from the date of this order.
3) Chamber Summons No. 1596 of 2019 is disposed off accordingly.
Date : 8/8/2022.
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on:8/8/2022.
Typed on : 12/8/2022.
Checked on :17/8/2022.
Signed on :19/8/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/8/2022. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
8/8/2022.
JUDGMENT/ORDER signed by P.O.
on
19/8/2022.
JUDGMENT/ORDER uploaded on 19/8/2022.
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