Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons No. 2288/2019 ..1.. In S.C. Suit No.3795/2012
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO. 2288 OF 2019
IN
S.C. SUIT NO. 3795 OF 2012
CNR NO : MHCC01-013272-2019
1. Chandrakant L. Poojari,
Aged : 63 Years,
Residing At : Flat No. 61, 6th Floor,
Shivalik Apartments Appasaheb
Marathe Marg, Prabhadevi,
Mumbai - 400 025.
2. Dattatray Ganesh Naik,
Aged : 71 Years,
Residing At : Boling Post - Virar,
Taluka - Vasai, Dist. - Thane,
3. Purushottam Anant Kawali,
Aged : 57 Years,
Residing At : Post - Agashi,
Station Virar, Taluka - Vasai,
Dist. - Thane,
4. Anil Atmaram Paranjpe,
Aged : 66 Years,
Residing At : Aradhana Building,
Mahant Road, Vile Parle (East),
Mumbai - 400 057.
5. Kuldeep Juneja,
Aged : 53 Years,
Residing At : Daulat Baug,
Building No. 2, Flat No. 5,
36th Road, Bandra,
Mumbai - 400 050.
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Chamber Summons No. 2288/2019 ..2.. In S.C. Suit No.3795/2012
6. Manohar Vasudev Wadekar,
Aged : 44 Years,
Residing At : Laxmi Nivas,
Paranjape “B” Scheme,
Road No. 2, Hanuman Road,
Off Vile Parle (East)
Mumbai - 400 057.
7. Jaywant C. Mundgekar,
Aged : 50 Years,
Residing At : 517, Bhagirathi Sadan,
Ground Floor, 17th Road, Khar (West),
Mumbai - 400 052. ...Plaintiffs
V/s.
1. Mohammed Hasan Abdul Sattar Moti,
Residing At : P. O. Box No. 510 31,
And also P. O. Box No. 12736,
Dubai, UAE.
2. Maheen Naeem Sachedina,
Residing At : 80, White Pine TRL,
Richmond Hill, Ontario L4E 3L8,
Canada.
3. Nurmin Tehsin Miller,
Residing At : 25, Eastdale Cres,
Richmond Hill, Ontario L4B 3E4,
Canada.
4. Shaheen Sajid Kazi,
Residing At : 7805, Bayview Avenue,
#1107, Thornhill, Ontario L3T7N1,
Canada.
5. Mahjabeen John Tracy,
Residing At : 33, Mvmos Drive
Bookmans Part, Hertforshire,
AU, AY 97 AK, London, England.
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Chamber Summons No. 2288/2019 ..3.. In S.C. Suit No.3795/2012
6. H. A. Karolia & Sons,
Having their address At : 89,
Ali Umar Street, 1st Floor,
Milk Bazar, Near Pydhonie,
Mumbai - 400 003. ...Defendants
AND
Rani Kushalkumar Kothari,
Residing At : Moti Mansion,
Paranjape ‘B’ Scheme, Road No. 2,
Hanuman Road, Vile Parle (East),
Mumbai - 400 052. ...Applicant.
Appearance :-
Mr. Jaideep Raut I/b Mr. Vinod Naik, Advocate for Applicant.
Mr. Aloukik Pai I/b Bina Pai, Advocate for Plaintiffs.
None for Defendants.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 1ST FEBRUARY, 2021.
ORAL ORDER
By this chamber summons the applicant has sought
addition of herself as party to the suit, dismissal of the suit, stay of the
suit during pendency of Chamber Summons and has also sought
injunction for restraining plaintiffs as well as defendants from claiming
any rights in respect of the suit property.
2. In brief, the applicant’s case is that, the plaintiffs and
defendants have suppressed material facts and are playing fraud on the
Court. They have brought into existence a Power of Attorney to defeat
the applicant’s rights in the suit property. They have acted in
contravention of the interim order passed by the Hon’ble High Court in
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Suit No. 9207/1995 filed by the applicant in the Hon’ble High Court.
The plaintiffs and defendants have created two sets of the Power of
Attorneys and Agreements. Plaintiff No. 1 and defendants are guilty of
fraud and forgery. They have entered into a secret arrangement to
transfer the suit property to defeat applicant’s rights in the suit property.
3. The plaintiffs’ have opposed the chamber summons on the
ground that, the applicant has no interest in the subject matter of the
suit. The trial in this case has already commenced. In such
circumstances, as the applicant is not concerned with the subject matter
of the suit, she cannot be added as a party to the suit.
4. Perused. Heard.
5. Advocate for applicant’s submitted that, the Hon’ble High
Court has granted status-quo in suit filed by the applicant. Plaintiff No.
1 has filed an affidavit on 19.10.2001 which reveals that, the suit
property is encumbered. This is in violation of the order of status-quo
passed by the Hon’ble High Court. According to him, the document on
record clearly reveal that, the plaintiffs and defendants to this suit have
entered into a secret arrangement. This is evident from two different
sets of the Power of Attorneys and Agreements. In one set there is no
reference to the transfer, while in another there is mention of transfer of
interest in the suit property to the plaintiffs. According to him, the
plaintiffs as well as the defendants are playing fraud upon the Court in
the present case. The applicant has brought it to the light. The
applicant has an agreement to sell executed in her favour by the
defendants 1 to 5 and their late mother. Thus, applicant has rights in
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the suit property and so she is a necessary party to the suit. According
to him, the violation or transfer in breach of order of injunction is void.
He relied on Surjit Singh V/s. Harbans Singh, 1996 AIR (SC) 135 and
Kesharimal Jivji Shah V/s. Bank of Maharashtra, 2004 (3) Mh.L.J. 893.
6. On the other hand, advocate for plaintiffs submitted that,
present suit is about a dispute between plaintiffs and defendants as to
whether the Power of Attorney executed by defendants in favour of
plaintiffs is validly terminated or not. Applicant’s suit is for specific
performance of an agreement. Present suit is ripe for cross examination
of plaintiffs’ witness. Only parties to the Power of Attorney can be
necessary parties in such suit. Plaintiff is
dominus litis. The applicant is
not a necessary party to the suit. If at all the applicant is aggrieved, she
has remedies in her suit.
7. He relied on Mumbai International Airport Private Limited
V/s. Regency Convention Centre And Hotels Private Limited And
Others, (2010) 7 Supreme Court Cases 417, Kasturi V/s. Iyyamperumal
And Others, (2005) 6 Supreme Court Cases 733 and Gurmit Singh
Bhatia V/s. Kiran Kant Robinson and Others, 2019 SCC OnLine SC 912.
8. Before considering the submissions advanced, it needs to be
mentioned that, only prayer clause (a) of present chamber summons
can be considered by this Court. Other prayers in the chamber
summons need not be considered at this stage as the applicant is not yet
added as party to the present suit.
9. In order to understand the controversy in the suit the
pleadings in the case needs to be considered.
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10. The pleadings in this case reveals that, plaintiffs claim
themselves as disciples as His Holiness Shri P. G. Sagvekar who used to
reside on Second Floor of a building known of the ‘Moti Mansion’ which
was purchased by late Smt. Halima Moti. The applicant instituted Suit
No. 4267/1995 against defendants No. 1 to 5 for specific performance
and agreement to sell. The interim relief is granted in said suit. In
1999, His Holiness Shri Sagvekar passed away. The building was old
and dilapidated. Late Smt. Halima Moti approached the plaintiffs who
undertook to preserve the building. Plaintiffs spend Rs.10 lacs to repair
the building and also paid loan of Rs.11 lacs to late Smt. Halima Moti.
Said loan was treated as consideration for agreement of conditional
sale. The plaintiffs also agreed to defend the suit instituted by the
applicant. Consequently late Smt. Halima Moti and defendants No. 1 to
5 executed Power of Attorneys and Agreements, letter of possession,
letters of attornment in favour of plaintiffs. Plaintiffs were and are
paying of all outgoings of the building and collected rent etc. Late Smt.
Halima Moti died in the year 2002, defendants No. 1 to 5 could not
fulfill their obligations. Plaintiff No. 1 received the letter on behalf of
defendants No. 1 to 5 that the General Power of Attorney dated
20.07.2001 is revoked, canceled and terminated.
11. The revocation of Power of Attorney dated 27.10.2009 is
challenged in the suit and relief of declaration of its validity is sought.
12. Provisions of Order 1 provide who shall be parties to the
suit. Sub-Rule 10 provides for the powers of the Court to add or delete
in party to the suit. A party can be added to the suit only when it is a
necessary or proper party to the suit.
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13. In Mumbai International Airport Private Limited’s case, the
Hon’ble Supreme Court has observed that, “being
dominus litis, the
plaintiff may choose the persons against whom he wishes to litigate and
cannot be compelled to sue a person against whom he does not seek
any relief. A “necessary party” is a person who ought to have been
joined as a party and in whose absence no effective decree could be
passed at all. A “proper party”, though not a necessary party is a person
whose presence would enable the Court to completely, effectively and
adequately adjudicate upon all matters in dispute in the suit.”
14. In Kasturi’s case, the Hon’ble Supreme Court has observed
that, plain reading of the expression within Sub-Rule 2 Order 1 Rule 10
of CPC, “all the questions involved in the suit” qualifies that the
legislature meant that the controversies raised as between the parties to
the litigation only must be gone into.
15. In Gurmit Singh Bhatia’s case, the Hon’ble Supreme Court
has observed that, the plaintiff is
dominus litis and cannot be forced to
add parties against whom, he does not want to fight.
16. Considering the controversies in the suit it is apparent that,
the revocation of the Power of Attorney allegedly executed by the
defendants No. 1 to 5 and their late mother in favour of the plaintiffs is
the subject matter of the suit. The applicant, thus, who is not a party to
the Power of Attorney, is not a necessary party to the suit. The
applicant is also not a proper party to the suit, since her presence in the
suit will not assist the Court to resolve the dispute, whether the Power
of Attorney is revoked in accordance with law or not. If the applicant is
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added in the suit, considering her stand in the chamber summons, it
will enlarge the scope of the suit unnecessarily and will pose the
questions which are not for consideration before the Court in present
suit. If at all the applicant claims that, the Power of Attorney in
question is executed to defeat her right, she has the remedies in the suit
filed by her and which is still pending.
17. I have gone through the authorities cited by the advocate
for applicant wherein, it is held that the alienation or transfer in breach
an injunction is void. However, that is not the question to be gone into
in the present suit, as the applicant can very well raise such question in
the suit filed by her. In view of this, I hold that chamber summons is
merit less. Hence, following order: -
ORDER
Chamber Summons No. 2288/2019 is dismissed
with costs.
(AJIT N. MARE)
Judge,
Date : 01.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 01.02.2021
Transcribed on : 01.02.2021
HHJ Signed on : 03.02.2021
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Chamber Summons No. 2288/2019 ..9.. In S.C. Suit No.3795/2012
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
03.02.2021 4.36 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 01.02.2021
Order signed by P. O. on 03.02.2021
Order uploaded on 03.02.2021
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