Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010130032019
CNR NO. MHCC010130032019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.2249 OF 2019
IN
SUIT NO.15 OF 1989
(HIGH COURT SUIT NO.2920 OF 1989)
Sanjeev Hanumant Phalnikar & Ors. ] … Plaintiff
V/s.
Madhav Dhundiraj Phalnikar & Ors. ] ....Defendants
Appearances :-
Ld. Adv. Mr. Hemant Ghadigaonkar for plaintiff No.1(a), (b) and 2(c).
Ld. Adv. Mr. Amodh Tilak for plaintiff No.2(b).
None for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 15th November, 2021
ORAL ORDER
1. The present Chamber Summons are taken out by the
plaintiff No.2(b) for transposing other plaintiffs as the additional
defendants and allow the plaintiff No.2(b) to continue with the present
matter as plaintiff. It was submitted by Learned Advocate for plaintiff
No.2(b) that due to severe indifferences between plaintiff No.2(b) and
other plaintiffs, there is division amongst them. There cannot be two
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different set of advocates to represent 2 fractions amongst the plaintiffs
and therefore the other plaintiffs except the plaintiff No.2(b) be
transposed as defendants. It was submitted that after passing of
preliminary decree the present suit came to be filed for
division/partition as per the decree. The present plaintiff No.2(b) came
to know that the other plaintiffs are intending for redevelopment of the
suit property and depriving the share of plaintiff No.2(b). There were
meetings between the other family members and builders regarding the
redevelopment and the builder introduced by other plaintiffs was not
giving proper benefits of the property and therefore the plaintiff
No.2(b) opposed the said proposal. Since then there are differences
between the present plaintiff and other plaintiffs. The plaintiff No.2(b)
is apprehending that the other plaintiffs may try to settle the matter
behind back of plaintiff No.2(b) and thereby may deprive him of his
lawful right and interest in the subject matter property and therefore
the other plaintiffs be transposed as defendants.
2. The plaintiff No.1(a) to 1(d) and 2(c) filed their reply and
opposed the contention of plaintiff No.2(b). It was submitted that
already preliminary decree has been passed. The present plaintiff
No.2(b) is only family member who is opposing the proposal and
refused to sign the deal. Various efforts were made and explained to
plaintiff No.2(b) but he is reluctant to go with the proposal. The
remaining plaintiffs are not depriving the legitimate right of plaintiff
No.2(b). The plaintiff No.2(b) can transfer himself but he cannot ask
for the other plaintiffs to be transposed as defendants and therefore, the
Chamber Summons be rejected.
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3. The plaintiff No.2(b) filed rejoinder affidavit and submitted
that he obtained feasibility report and the suit building is in concrete
stage. There is no necessity to renovate building. As there is conflicts
of interest and many differences, the other plaintiffs be transposed as
defendants.
4. Heard Learned Advocate for plaintiff No.2(b) and
remaining plaintiffs at length. The contents are not reproduced. As per
the Roznama dated 03.01.2020 the Advocate for plaintiff who was
representing all the plaintiffs had taken discharge. The plaintiff No.2(b)
filed Vakalatnama of another advocate. The Learned Advocate for
plaintiff No.2(b) relied upon VENKATRAO A. PAL AND SONS LTD. v/s.
NARAYANLAL BANSILAL , -LAWS (BOM) 1960 8 14 AIR (BOM) 1961 0
94, it has been held that it is open to the plaintiff to appoint as many as
counsels as they want. But all the counsels or advocates engaged by
them must appear jointly for all of them and one such counsel or
advocate had got the right to be incharge of the case on behalf of all of
them. The plaintiff No.2(b) relied upon another non reported order of
Bom.H.C., in A.G. Abhyankar & Ors. V/s. St. Francis Xavier Church &
Ors. It has been observed that all parties must be represented by a
single Advocate.
5. As against this advocate for remaining plaintiffs relied upon
AIR 1983 Gujarat 194, Jethiben v/s. Maniben and another. It has been
held that the Courts would not permit such transposition just to give a
chance to a litigant to avoid filing of the suit or permit him to take
advantage of the suit filed by his adversary against him claiming a relief
against him by becoming a plaintiff.
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6. AIR 1995 Supreme Court 2493 Mool Chand and others Vs.
Deputy Director, Consolidation and others. It was held that there are
two stages in a suit for partition. The first stage is reached when the
preliminary decree is passed and the second stage is when a final decree
is passed which concludes the proceedings.
7. After going through the submissions of both the parties and
citation submitted by all the plaintiffs, it seems that the preliminary
decree was passed in the present matter and after preliminary decree
the final decree proceedings by way of present suit is filed. The original
suit was filed in the year 1989. All the plaintiffs were contesting the
suit since then. Several other parties expired during the pendency of
the matter. After passing of preliminary decree Appeal No.841/2002
and Appeal No.892/2002 was filed and it was decided on 20.02.2008.
The plaintiffs were given the shares by way of decree. The Court was
directed to be appoint Commissioner for effecting the partitions by
metes and bounds. As per the directions given by the Hon'ble High
Court in the order of Appeal, the plaintiffs and defendants were granted
1/4 share each in the joint family property. It was also observed that
the parties may arrive at settlement and compromise. In the
background of these observations the remaining plaintiffs tried to settle
the matter by way of redevelopment of property. The same was
opposed by plaintiff No.2(b). All the plaintiffs raised rival contentions
on the condition of the suit building. As per plaintiff No.2(b) the suit
building is in concrete stage whereas as per other plaintiffs it is
dialapidated condition. The said issue cannot be decided in the
Chamber Summons. However, the present Chamber Summons is for
transposition of other plaintiffs as defendants. As such in a suit for
partition all the parties are having similar status and their rights are
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common. Admittedly, the preliminary decree has already being passed
and the suit is only for effecting the partitions. The shares of all the
plaintiffs and defendants has declared. The only question remained the
appointment of Court Commissioner for effecting partition. Therefore,
apprehension of the plaintiff that he would be deprived of his share
does not appear to have any substance. Moreover the plaintiff No.2(b)
has all right to oppose the proposal if any kept by remaining plaintiffs.
The plaintiff No.2(b) can oppose if he is denied of his right. There is no
provision for transposing some of the plaintiffs as defendants. As all the
plaintiffs are having common interest they filed the suit. There is no
provision to transpose the plaintiff as defendants only if their interest
differ and therefore, it would not be appropriate and necessary to
transpose the remaining plaintiffs as defendants. I, therefore, proceed
to pass the following Order:
ORDER
1. Chamber Summons No. 2249 of 2019 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 15-11-2021 City Civil Court, Gr. MUMBAI
Dictated on : 15-11-2021
Transcribed on : 22-11-2021
checked on : 22-11-2021
Signed on : 22-11-2021
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22.11.2021 at 03.45 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of judgment/order 15.11.2021
Judgment/order signed by P.O. on 22.11.2021
Judgment/order uploaded on 22.11.2021
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