Interim Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Order in N/M no.564/22 in S.C.Suit 3029/19
MHCC010016702022
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.564 OF 2022
IN
S.C.SUIT NO. 3029 OF 2019
Smt. Anjana Ashok Borkar ...Plaintiff.
Versus
Smt. Asha Dasharath Shivalkar & Ors. ...Defendants.
Appearance:
Adv. Bhakti Walavalkar for the Plaintiff.
Adv. Rajeev Matkar for Defendant No.1 and 3.
CORAM : SMT. A.K.MANDAVGADE
AD-HOC JUDGE, (C.R.NO.62)
DATE : 31.07.2026
ORAL ORDER
(Dictated in open Court)
The Notice of Motion is filed by defendants No.1 and 3 for
seeking relief to delete defendant No.2 from array of parties as per
Order 1 Rule 10(2) of Code of Civil Procedure (hereinafter referred as
‘CPC’).
2. As per contention of defendants No.1 and 3, the suit is filed
claiming 1/5th share in the suit premises, for relief of declaration in
respect of Gift Deed dated 28/09/2019 being null and void. Injunction
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..2.. Order in N/M no.564/22 in S.C.Suit 3029/19
is also claimed against defendant No.2 restraining it from transferring
the suit premises in the name of defendant No.3 or any other person as
well as relief of injunction is claimed against defendant No.1 restraining
her from transferring the suit premises in the name of defendant No.3.
As per contention of the defendants suit premises is allotted to
defendant No.1 under SRA. The plaintiff has not challenged eligibility
of defendant No.1 as sole eligible person under the Scheme. Unless and
until the eligibility and agreement is set aside, the plaintiff has no cause
of action for filing suit. Though plaintiff has claimed 1/5th share he has
suppressed names of his two brothers i.e. Jitendra Dasharath Shivalkar
and Sanjay Dasharath Shivalkar. The plaintiff has not joined necessary
parties to the suit. There is no specific pleadings as to the persons
entitled to 1/5th share each, in the suit premises. The agreement in
favour of defendant No.1 was executed in the year 1996, hence suit is
barred by limitation. The suit premises is allotted to defendant No.1 on
ownership basis under Rehabilitation Scheme of MHADA and DCR
33(7). Hence there is bar u/s. 177 of Slums Act, 1971. As plaintiff has
prayed for relief of injunction restraining defendant No.2 society from
transferring shares, the suit is barred by Section 91 of the Maharashtra
Co-operative Societies Act, 1960. Statutory notice as per 164 of the
Maharashtra Co-operative Societies Act, 1960 is not issued, hence suit is
barred on that ground also. Prayer clause 3 and 4 are infructuous as
Shares are already transferred in the name of defendant No.3. Thus all
the prayers are infructuous. The suit is filed without any cause of action,
hence the plaint itself is liable to be rejected.
3. Defendants No.1 and 3 have filed additional affidavit in
support of notice of motion. As per its contents, the suit premises is
allotted to defendant No.1 on ownership basis under MHADA scheme.
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The suit is barred by law. Defendant No.3 has obtained certain
information under Right to Information Act. The documents disclose
that defendant No.1 is solely entitled under the Rehabilitation Scheme,
for allotment of suit premises on ownership basis. The plaintiff has
challenged said eligibility, hence the suit is barred by various provisions
of law.
4. As per reply affidavit the notice of motion is filed with
malafide intention to protract the proceeding. The plaintiff has prayed
for relief not to transfer or alienate the suit premises in the name of
defendant No.3 or any other person. However defendant No.3 managed
to get share certificate transferred in her name, without following due
procedure of law. The prayer in present notice of motion is regarding
deletion of name of defendant No.2. However the suit is not instituted
in the name of wrong person. Defendant No.2 is intending to illegally
transfer the suit premises, hence notice was issued. Despite service of
summons defendant No.2 failed to file reply and written statement as
well as to appear before the court. The notice of motion taken out by
defendant No.3 is abuse of process of law, as it is filed after transfer of
share certificate in her name. There is collusion between defendants
No.2 and 3. Plaintiff is dominus litus. Hence she has prayed for
rejection of notice of motion.
5. Heard both the sides. Perused record.
6. Learned advocate for defendants No.1 and 3 argued that
Jitendra and Sanjay are brothers of the plaintiff and are necessary
parties to the suit, but they are not joined as party. Proceeding is
pending before Divisional Joint Registrar, hence suit against defendant
No.2 is not tenable. Shares are already transferred. Hence presence of
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defendant No.2 is not required. The cause of action to file suit against
co-operative society arises only after expiry of period of statutory notice
as per Section 164 of the Maharashtra Co-operative Societies Act, 1960.
Gift Deed was executed in the year 2018 and on that basis shares are
transferred in the year 2023. Thus the relief regarding Gift Deed is
barred by limitation.
7. On the other hand, learned advocate for the plaintiff
argued that after redevelopment there was agreement for permanent
alternate accommodation executed with defendant No.1. Thereafter Gift
Deed was executed on the basis of share certificate. However share
certificate is not document of title. The shares are transferred by
defendant No.2 in favour of defendant No.3 during pendency of the
suit. Hence defendant No.2 society is necessary party. If defendant
No.2’s name is deleted then the suit will become infructuous. The suit is
not filed against wrongly named persons. Hence, the notice of motion is
liable to be rejected.
8. The notice of motion shows that the prayer of defendants
No.1 and 3 is to delete name of defendant No.2 as per Order 1 Rule
10(2) of the CPC. No other relief is claimed by defendants No.1 and 3.
However in affidavit filed in support of notice of motion defendants
No.1 and 3 have made contentions as mentioned above. In said affidavit
defendants No.1 and 2 have prayed for relief of rejection of plaint vide
Order VII Rule 11(a) & (d) of CPC. Perusal of record shows that Notice
of motion No.563/2022 was filed by defendants No.1 and 3 seeking
same relief. My learned Predecessor has rejected the same by passing
detailed order on 03/09/2024. Thereafter again present notice of
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motion is filed. Record does not reveal that order passed in Notice of
Motion No.563/2022 is challenged by defendants No.1 and 3.
9. Further, if prayer of defendants No. 1 and 3, to delete name
of defendant No.2 as per Order 1 Rule 10(2) of CPC is considered then
it was necessary for them to satisfy the court that defendant No.2 is
improperly joined, hence its name needs to be stuck out. However, that
is not done, thus the application filed under Order 1 Rule 10(2) of CPC
is not tenable. Further the defendants No. 1 and 3 have prayed for
rejection of plaint as per Order VII Rule 11(a) & 11(d) of CPC i.e. on
the ground of non disclosure of cause of action and plaint is barred by
any law. However, the notice of motion is silent how these two grounds
are applicable. It is contention of the defendants that due to transfer of
share certificate prayer regarding injunction has become infructuous.
However in the plaint there is no relief regarding transfer of shares.
Further it is contention of the defendants that, plaintiff has prayed
1/5th share in the suit premises. However, that prayer is deleted by the
plaintiff. Whether suit is barred by limitation is mixed question of law
and fact. Hence plaint cannot be rejected at the threshold on that
ground. Whether plaintiff is entitled to any relief or not, cannot be
considered while deciding application filed under Order 1 Rule 10 of
CPC. While passing order in Notice of motion No.563/2022 my learned
Predecessor has considered all the allegations made by defendants No.1
and 3 in present notice of motion. My learned Predecessor has held that
whether the suit is barred by Section 164 of Maharashtra Co-operative
Societies Act, 1960 will be decided after trial. There is no change in
circumstances. In such situation there is substance in the argument
advanced on behalf of the plaintiff that the application is filed just to
prolong the proceeding. The contention of defendants No.1 and 3
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regarding non-joinder of necessary parties, mis-joinder of party and
prayers being infructuous is not acceptable. Hence the notice of motion
is liable to be rejected. Hence, I pass following order :-
ORDER
1. Notice of Motion No.564 of 2022 is dismissed.
2. Defendants No.1 and 3 shall pay cost of the
notice of motion to the plaintiff.
3. Accordingly, Notice of Motion is disposed of.
(Smt. A.K.Mandavgade)
Ad-hoc Judge
City Civil Court,
Date : 31.07.2026 Gr. Mumbai.
Pronounced on : 31.07.2026
Directly dictated on computer : 31.07.2026
Typed on : 31.07.2026
Checked & Signed on : 01.08.2026
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..7.. Order in N/M no.564/22 in S.C.Suit 3029/19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
Mrs. Manisha S. Putta	01.08.2026 4.50 PM
Name of the Judge (With C.R. No.) HHJ Smt. A.K.Mandavgade
(C.R.No. 62)
Date of Pronouncement of JUDGEMENT
/ORDER
31.07.2026
JUDGEMENT /ORDER signed by P.O. on 31.07.2026
JUDGEMENT /ORDER uploaded on 01.08.2026
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