Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of 1
Motion No. 4654 of 2019
MHCC010127442019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.4654 of 2019.
IN
S. C. SUIT NO.4636 of 2013.
Mrs. Bhavana Rajesh Kajani ...Applicant/
Defendant No.1.
In the matter of :-
Iqbal Ahamed Makandar ..Plaintiff
V/s.
Mrs. Bhavana Rajesh Kajani and Anr. ..Defendant.
Appearances :-
Adv.Rishi Ashok for plaintiff
Adv. Sushant Kumbhar for defendant.
Coram : U. C. Deshmukh.
C.R. No.: 59.
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Order on Notice of 2
Motion No. 4654 of 2019
Date : 11/09/2023
ORAL ORDER
This Notice of Motion is moved by the defendant No.1
under Order VII Rule 11 of the Code of Civil Procedure to reject the
plaint against the defendant No.2 and/or Order 1 rule 10 of the Code of
Civil Procedure (In short ‘Code’) to delete the name of defendant No.2
being improperly joined by the plaintiff.
2. It is contention of the defendant No.1 that the plaintiff has
deliberately joined defendant No.2, the brother of defendant No.1.
There is no cause of action against the defendant No.2. Hence, his name
is liable to be strike out from the record. Hence, moved this Notice of
Motion.
3. The plaintiff filed its reply over leaf of the application. It is
his contention that the Notice of Motion is not moved by defendant No.
2. The defendant No.2 also failed to file written statement. There is
delay to move this Notice of Motion. Hence, prayed to reject the notice
of motion.
4. It specific submission of the Ld advocate for the defendant
No. 1 that plaintiff no where mentioned the nexus of defendant No.2 .
No relief is sought against defendant No.2. Hence, he is improperly
joined to the suit.
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Order on Notice of 3
Motion No. 4654 of 2019
5. On the other hand, it is submission of the Ld. Advocate for
the plaintiff that defendant no. 1 ought to have raised this objection as
earliest. He failed to move this Notice of Motion at earliest. The plaintiff
has adduced evidence. Hence, there is no reason to strike out the name
of defendant No. 2. Hence, prayed to reject the Notice of Motion.
6. It is matter of fact that the plaintiff has filed evidence on
record. Thereafter, this Notice of Motion is taken out by the defendant
No.1. The suit admittedly instituted in the year 2013. Hence, there is
delay of six years to move this Notice of Motion. In such circumstances,
it is necessary to see whether the Notice of Motion is liable to be
allowed.
7. Order I rule 10 of the Code dealt with the parties which are
proper to the suit. Order I rule 10 of the Code empowers the Court to
strick out or add party. The Court may strike out or add party to the
suit. Sub-rule 2 of the Order I of the Code provides that the Court at any
stage of the proceeding either upon or without application of either
party may order that name of improperly joined the party be strike out
8. Conjoint reading of provision of Order I Rule 1 and Order 1
Rule 10 of Code sub rule 2 which empowers the Court to strike out the
party who is in properly joined. It provides that the Court may at any
stage of the proceeding strick out the name of the party. So far as the
Notice of Motion is concerned, therefore, there is no substance in
submission of the plaintiff that this Notice of Motion is liable to be
rejected merely on the ground that it is moved at belated stage.
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Order on Notice of 4
Motion No. 4654 of 2019
9. Now it has to see whether defendant No.2 is joined
properly or not. It is contention of defendant No.1 that the plaintiff is
silent as to the nexus of defendant No.2 with the matter. Order I Rule 1
provides that all persons may be joined in one suit whether right arising
out of some act or transaction or series of act or transaction as alleged.
in relation of such person whether jointly, severally or in the alternative.
It also provides that if common question of liability arise if all such
persons are sued separately then they may be joined in one suit.
Keeping in mind this provision if plaint is perused its silent as to the
nexus of defendant No.2 with cause which has arisen to the plaintiff.
Documents annexed with the plaint are also silent as to the nexus of
defendant No.2. The plaintiff no where state that defendant No.2 has
concerned with the issues or issues involved in the matter.
10. During the course of arguments also, the Ld advocate for
the plaintiff has resisted this Notice of Motion merely on the ground of
delay and defendant No.2 has failed to file written statement. It is also
his contention that all objection in view of the Order 1 Rule 3 shall be
taken at the earliest opportunity. No such objection shall be taken after
issues are settled. If no such objection shall taken it shall be deemed to
have been waived.
11. On perusal of the record, it is seen that issues are framed
on 24.07.2018. The Notice of Motion moved on 25.11.2019. Defendant
No. 2 nowhere stated any reason for or circumstances which compelled
him to move this Notice of Motion after issues are framed. If Provision
of Order I Rule 10 of Code are applied to the given fact of the case, it
can be said that defendant No.2 waived his objection to the misjoinder
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Order on Notice of 5
Motion No. 4654 of 2019
to the defendant No.2. Therefore, Notice of Motion deserved to be
rejected.
ORDER
1. Notice of Motion No.4654 of 2019 is rejected.
2. Notice of Motion No. 4654 of 2019 is disposed off accordingly.
(Dictated and Pronounced in open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:11.09.2023 Greater Bombay (CR 59).
Declared on : 11.09.2023
Dictated on : 11.09.2023
Transcribed on : 26.09.2023
Checked on : 26.09.2023
Signed on : 29.09.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.10.2023 at 12.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 11.09.2023
Order signed by P.O. on 29.09.2023
order uploaded on 10.10.2023
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