Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. No.1873-2019, in Suit no.3194-1991
MHCC010001321990
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1873 OF 2019
IN
SHORT CAUSE SUIT NO.3194 of 1991
Smt. Lajwanti W/O Bhojraj Kukreja
(since deceased) through Lrs ...Plaintiffs.
Vs.
Namdev Arjun Pawar (since deceased)
through Lrs ..Defendants.
And
Sunny & Company ...Respondent.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 26th DAY OF SEPTEMBER, 2022
: Appearances:
The learned Adv. Mr. Birajdar for the plaintiff
The learned Adv. Kudalkar for defendant Nos.1A to 1C.
The learned Adv. Mr. Dhuri for Respondents.
ORAL ORDER
The present Chamber Summons is taken out by the
applicant/subsequent purchaser to direct the plaintiff to join him as a
party defendant No.4 and for other reliefs.
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2. In short, it is contention of the applicant / Sunny &
Company that, plaintiffs have filed suit against the defendants for
declaration and injunction.
3. It is further contended that, one Mr. Charandas Mavji
was the absolute owner of the suit property. He vide Lease Deed
dated 30.08.1945, leased the said property jointly to Mr. Keshavji
Kuverji Berajwala and his wife in perpetuity for 999 years. Under
Deed of Assignment dated 11.11.1947, said Mr. Keshavji Kuverji
Berajwala and his wife assigned their leasehold right in favour of Mr.
Chotalal Dharamsey Joshi and his wife Mrs. Hiraben Chotalal Joshi
regarding suit property.
4. It is further contended that, under Deed of Assignment
dated 02.12.1960 said Mr. and Mrs. Joshi assigned all their right in
respect of suit property in favour of Shivram Khemchand, Bhojraj
Khemchand and Hiraram Khemchand i.e. predecessor in title of the
plaintiffs and the defendant Nos.2 & 3. It is contended that Mr.
Charandas Mavji expired on 24.11.1964 leaving behind him his sons
and daughters as only surviving legal representatives and heirs.
5. It is further submitted that, legal heirs of Mr. Charandas Mavji
filed Suit No.1241/4445 of 1978 before Small Causes Court for
recovery of arrears of rent and for eviction against Shivram
Khemchand and others. Suit came to be decreed exparte on
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03.03.1980 thereby Shivram Khemchand and others were directed to
hand over vacant and peaceful possession of the suit property and to
pay the sum of Rs.7500/ together with compensation at the rate of
Rs.2400/ p.a., vide Consent Terms dated 08.12.1983 filed before
Small Causes Court Mumbai. Jaysingh Charandas Asher and Shivram
Khemchand and other revived/ revalidated the Original Lease Deed
dated 30.08.1945 and the same became valid and subsisting.
5. It is further contended that, after demise of Shivram
Khemchand, Bhojraj Khemchand and Hiraram Khemchand their heirs
and legal representatives entitled for 1/3rd joint leasehold rights in
the suit property.
6. It is further contended that, vide Deed of Conveyance dated
31.12.2014 entered into between Jaysingh Charandas Asher and
others and Mr. Mehboob K Kamdar and the present applicant said
Jaysingh Asher and others transferred, conveyed and assigned all
their ownership right, title and interest in the suit property along with
structure thereon in favour of the applicant and another. Thus
considering this aspect, the applicant needs to be joined as party to
the suit. Hence the present Chamber Summons.
7. The plaintiff by filing reply on affidavit strongly opposed
Chamber Summons. It is contended that, Chamber Summons being
misconceived, bad in law and frivolous is not maintainable and
deserves to be dismissed. The relief sought by the applicant is barred
by Limitation. It is contended that, against wish of the plaintiff the
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applicant cannot be joined to the suit. He is neither necessary nor
proper party to the suit. Hence Chamber Summons may kindly be
rejected.
8. Heard all the learned advocate for respective parties at length.
Perused records.
9. The learned advocate for the plaintiffs has relied upon the
authority reported in the case of Sudhamayee Pattnaik and others
Versus Bibhu Prasad Sahoo and others 2022 Live Law (SC) 773.
The Hon'ble Supreme Court while considering scope of Order 1 Rule
10 of the Code of Civil Procedure, 1908 held that:
“Plaintiffs are the domius litis. Unless the court Suomotu
directs to join any other person not party to the suit for
effective decree and/or for proper adjudication as per Order
1 Rule 10 of CPC, nobody can be permitted to be impleaded
as defendants against the wish of the plaintiffs. Non
impleading the subsequent purchasers as defendants on the
objection raised by the plaintiffs shall be at the risk of the
plaintiffs. Therefore, subsequent purchaser could not have
been impleaded as party defendants in the application
submitted by the original defendants, that too against the
wish of the plaintiffs.”
10. Here it is to be seen that, plaintiffs have filed present suit for
declaration that defendant Nos.1a to 1c are in wrongful,
unauthorized and being trespasser are in occupation of the suit land
therefore they be directed to quit, vacate and to deliver suit property
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to the plaintiff and for other reliefs. The suit is filed in the year 1991.
It is contention of the applicant that, during the pendency of the suit
in the year 2014 he purchased the property. However, in view of ratio
laid down by the Hon'ble Supreme Court in above referred authority
plaintiffs are domius litis and nobody can be permitted to be
impleaded as defendants against the wish of the plaintiffs. The ratio
laid down in above authority squarely applicable to the facts of the
present case, hence no case is made out by the applicant to join him
as a party to the suit, that too against the wish of the plaintiffs. Hence
I pass the following order:
ORDER
Chamber Summons No.1873/2019 stands dismissed and
disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.26.09.2022 (C.R. No.1)
Dictated on : 26.09.2022
Transcribed on : 27.09.2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 28.09.2022 NAME OF STENOGRAPHER(GI)
Mr. V. S. Shinde
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 26.09.2022
JUDGMENT/ORDER signed by P.O. on 28.09.2022
JUDGEMENT/ORDER uploaded on 28.09.2022
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