Order 4

Order Details: Order on Exhibit
Pdf Text: 1
IN THE SMALL CAUSES COURT AT MUMBAI
( BANDRA BRANCH )
ORDER BELOW EXHIBIT NO. 17
IN
R. A. E. & R. SUIT NO. 589 OF 2022
C. N. R. NO. MHSCA30008032022
1. MRS. PHILOMENA MERLYN MACHADO & Ors. …PLAINTIFFS
V/S
DR. SATISH NAIK (Full name Not Known) …DEFENDANT
********
Ms. Eventa A. Gonsalves, Advocate for Plaintiffs.
Ms. Aakansha R. Sakpal, Advocate for Defendant.
********
Coram : V. G. Upadhye, Judge
Court Room No.33
Date : 11th December 2023
ORDER
. This is an application filed on behalf of plaintiffs for adding
proposed defendant No.2 as a party to the suit as per Order 1, Rule
10 of the Civil Procedure Code, 1908.
2. Application is sternly resisted by the respondent by filing
written say at Exh.30. It is also opposed by the defendant by filing
reply at Exh.28. It is contended in the application that the defendant
is monthly tenant of the suit premises which is Room No.2 from
where he was running a clinic being a medical practitioner. He failed
and neglected to pay monthly rent of the suit premises and the
permitted increases since April 2015. He has also committed breach
/home/steno33/Desktop/December 2023/Exh 17 in RAE R 589-2022.odt
-- 1 of 4 --
2
of the terms of the tenancy. Therefore, present suit is filed for his
eviction on various grounds including default in payment of rent.
When the suit summons was issued to him, the bailiff of this Court
reported that the defendant was not found on the address and the
name board of proposed defendant was found on the door/shutter of
the clinic. On making inquiry, the plaintiff made himself sure that the
suit premises are sublet to the proposed defendant. Thus, the
defendant has permanently left the suit premises and at present, the
proposed defendant No.2 is in possession of it. Therefore, the
proposed defendant No.2 is a necessary party to the suit for
adjudication of the dispute effectually.
3. The respondent i.e. proposed defendant No.2 objected the
application contending that at present, she has left the suit premises
and not practicing from the suit premises. She has shifted her clinic
elsewhere. She clarified that she was an assistant medical
practitioner of the defendant. She was using the suit premises on
temporary basis. She has stopped working with the defendant and
she is also ready and willing to remove her board. According to her,
she is not necessary party to the suit.
4. The defendant vehemently denied the allegations that he has
permanently left the suit premises. He denied that he has inducted
the respondent in the suit premises and handed over full and
complete charge to her. He also admitted that the respondents works
for an under his instructions as an assistant/junior doctor as he
cannot due to his ill health, always available in the clinic. He also
sternly denied the allegations of erecting construction in the suit
premises.
/home/steno33/Desktop/December 2023/Exh 17 in RAE R 589-2022.odt
-- 2 of 4 --
3
5. Heard both sides. Perused case record. Also perused the copies
of photographs annexed with the application.
6. It is pertinent to note that the respondent has not denied that
she was using the suit premises on temporary basis. However, it is
her contention that she was practicing medicine as an assistant of the
defendant. However, the name board affixed on the conspicuous part
of the suit premises in the photograph produced by the plaintiffs,
prima facie show that she was practicing there on her own
mentioning her separate consulting timings. Despite giving oral
assurance by the respondent, there is no evidence that she has
permanently left the suit premises and already removed her name
board from the suit premises.
7. By virtue of this application, plaintiffs want to insert additional
ground for eviction of the defendant i.e. he has sublet the suit
premises to a third party and he is not using it personally. So also,
the copies of photographs also reflect that the defendant has started
permanent construction so as to make additions and alterations in
the suit premises. That is also an additional ground for eviction.
8. Learned advocate for the respondents has placed his reliance
on following authorities to support the application :
i) Kasturi v/s. Iyyamperumal and others, (2005) 6 SCC 733;
ii) Antony Devaraj and another v/s. Aralvaimozhi (kurasadi)
Devasahayam Mount Oor and others, 2003 SCC Online Mad 875;
iv) The Firm of Mahadeva Rice and oil Mills v/s.
Jayaramakrishnan and others, 1966 SCC Online 250.
/home/steno33/Desktop/December 2023/Exh 17 in RAE R 589-2022.odt
-- 3 of 4 --
4
9. The gist of all rulings is that if the proposed defendant is not
necessary party to the suit, and application under Order 1, Rule 10
for impleading him as a party to the suit cannot be allowed. So far as
present as the respondent has admitted that she was in use and
occupation of the suit premises as an associate of the defendant in
his absence, it can be presumed that the suit premises were not being
used by the defendant. So also, there is no prima facie proof, barring
the bare words of the respondent that she has already left the suit
premises and shifted her clinic elsewhere. As such, in my considered
opinion, in an eviction suit, a person in actual possession of the suit
premises in fact, the necessary party to the suit so as to effectually
decide the rights and interest of parties. Hence, in conclusion, I am
inclined to pass following order :
ORDER
1 Application at Exh.17 is allowed.
2 Plaintiffs are directed to carry out the proposed
amendment in the plaint as per schedule
annexed with the application, on or before next
date without fail. They shall supply amended
copy of the plaint along with the documents to
the defendant No.2 forthwith thereafter.
( Dictated and pronounced in open Court. )
Sd/-
( V. G. Upadhye )
Date : 11.12.2023 Judge, C. R. No.33
Order dictated on : 11.12.2023
Order checked & signed on : 11.12.2023
/home/steno33/Desktop/December 2023/Exh 17 in RAE R 589-2022.odt
-- 4 of 4 --