Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 2086-19 in SC Suit 3227-2018
MHCC010118102019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.2086 OF 2019
IN
S. C. SUIT NO. 3227 OF 2018
Mr. Sudhir Sadanand Rane ] .. Plaintiff
Versus
Mr. Prakash Sadanand Rane ] .. Defendant
Appearances :-
Ld. Adv. Mahendra Padhye for Plaintiff.
None appeared from defendants.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 29.07.2024
ORDER
1. The plaintiff has moved present Chamber Summons for
seeking relief inter alia;
(a) To allow the Chamber Summons;
(b) To permit the plaintiff to join the “Seth Damodar Hirji and Bal
Devkavahu Charity Trust through their Trustees Mr. Radheshyam
Ganesh Sodhani” and “Fairdeal Construction” as the defendant Nos 2
and 3 respectively.
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(c) To issue Summons to the “Seth Damodar Hirji and Bal Devkavahu
Charity Trust through their Trustees Mr. Radheshyam Ganesh Sodhani”
having its registered office at 1/103, Varma Nagar, Old Nagardas Road,
Andheri (East) and “Fairdeal Construction” having office address at
501/502, Leo Apartment, A Wing, Kohinoor Niwas Plot No.479, 24th
Road, Off Link Road, Khar (W) Mumbai - 400 052.
(d) For such other or further relief as this Court may deem fit.
2. It is the contention of the plaintiff that the defendant had
transferred the ancestral property of his father mentioned in the suit, in
his name without recognizing the right, tittle and interest of the
plaintiff. The plaintiff further states that the suit property mentioned in
this suit is the ancestral property of his father therefore the plaintiff is
having equal share in the suit property. It is also contended that the
defendant in his written statement in para no. 8 contended that the
parents of the parties were residing at room No.4 admeasuring 90 sq.ft.
ground floor, 37 Paramdham Building, Banganga, 2nd cross lane,
Walkeshwar, Mumbai - 400 006 and tenancy was transferred by the
owner in the name of the defendant.
3. According to the plaintiff, the defendant created and
fabricated some of the documents in such way and in such manner that
the suit property is transferred in his name thereby deprived the
legitimate right of the plaintiff in the ancestral property. It is further
submitted that the defendant had submitted these fabricated documents
to the “Seth Damodar Hirji and Bal Devkavahu Charity Trust through
their Trustees Mr. Radheshyam Ganesh Sodhani” and to the Builder
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“Fairdeal Construction” in order to get transfer of the suit property in
his name. Therefore, “Seth Damodar Hirji and Bal Devkavahu Charity
Trust through their Trustees Mr. Radheshyam Ganesh Sodhani” and
builder “Fairdeal Construction” are essential parties to prove the
legitimacy of the documents on the basis of which the defendant had
transferred the said property in his name. Hence, this Chamber
Summons.
4. The defendant has resisted the claim by filing reply. It is
submitted that the Chamber summons filed by the Plaintiff is false,
frivolous, vague, vexatious, fabricated and fertile imagination with
malafide intentions and ulterior motives behind it and, as such, same be
neglected and ignored. It is also submitted that the suit which is filed by
the Plaintiff is not maintainable. As the suit property is wrongly
described. It is also submitted that the parents were residing at Room
No. 4 admeasuring 90 sq. ft. ground floor, 37 Paramdham Building,
Banganga, 2nd cross lane, Walkeshwar, Mumbai -400006.
5. According to the defendant, the tenancy is in his name, still
the plaintiff has filed this false suit stating that it is ancestral property
and he is entitled to get a share. The defendant further states that
plaintiff has not produced single evidence to show that the suit property
is ancestral property. It is further submitted that the Seth Damodar Hirji
and Bal Devkavahu Charity Trust through their Trustees Mr,
Radheshyam Ganesh Sodhani and the builder Fairdeal Construction are
not having relevance to this suit. In the plaint also, there is no
whispered in that respect and thus by making this separate application
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the plaintiff wants to change the subject matter of the suit which is not
at all allowed. It is also submitted that filing of such a frivolous chamber
summons harassed the defendant and putting him into financial loss.
Therefore, the defendant prays that to dismiss the chamber summons
with costs.
6. The notices were issued to both the proposed parties
through post. The notice duly served upon the proposed defendant No.1
but he did not turn up. The envelope of the notice sent to the proposed
defendant No.2 returned as unclaimed which is deemed service. But no
body turned up. Therefore, matter proceeded further without their say. I
have perused notice of motion, say and documents. Heard both sides.
7. It is seen that the plaintiff has filed present suit for
declaration, injunction and partition of the suit property. It is seen that
both the parties are siblings. It further appears that after the death of
their parents, the defendant has entered into an agreement on
04.01.2018 with the “Seth Damodar Hirji and Bal Devkavahu Charity
Trust through their Trustees Mr. Radheshyam Ganesh Sodhani”. It is
further seen that the “Fairdeal Construction” has given rent to the
plaintiff. According to the plaintiff, the suit property is ancestral
property of his parents and they died intestate. Now the said property is
under redevelopment and only defendant has executed agreement in
that respect by making false representation. The possession of the
property is with both the proposed defendants, if they are not made
parties to the present suit, they will deliver the possession of the
property to the defendant only. The same will seriously prejudiced the
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rights of the plaintiff. Looking to the dispute between the parties in
respect of the suit premises, I am of the opinion that both the parties are
necessary parties to the suit to decide the real controversy between the
parties.
8. Considering the facts and circumstances of the case, I am of
the opinion that both the proposed defendants are necessary and proper
parties to the present suit. Hence, following order is passed:-
ORDER
1. The Chamber Summons No.2086 of 2019 is hereby partly
allowed in terms of prayer clauses (b) and (c).
2. The plaintiff is permitted to join both the proposed defendants as
parties in the array of the plaint.
3. The plaintiff to carry of the aforesaid amendment within
stipulated time.
4. After carrying out amendment, amended copy of the plaint be
supplied to other side.
5. No order as to costs.
6. The Chamber Summons No.2086 of 2019 is disposed of
accordingly.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 29.07.2024 C.R. No.03
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31.07.2024. 12.05 p.m. Mrs. Shravanti Karre
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 29.07.2024.
Judgment/Order signed by P.O. on 30.07.2024
Judgment/Order uploaded on 31.07.2024
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