Interim Order 2

Order Details: Order on Exhibit
Pdf Text: 1
CNR NO.MHSCA-30009232021
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.9
IN
R.A.D. SUIT NO.391 OF 2021
1. Mr. Tarachand Mahadeo Dayma and anr. . . Plaintiffs.
Versus
1. Mr. Bhavesh Mohanlal Thakkar and ors. . . Defendants.
Advocate for Plaintiffs : Adv. S.A. Mishra
Advocate for Defendants : Adv. S.A. Vora
Coram : S.V.Deshmukh, Judge
C.R.No.32
Date : 07/10/2022.
ORAL ORDER :
1. This is an application filed by third party applicant
Mamchand Udaychand Dayma for directions to implead them as a
party as per Order 1 Rule 10 of the Code of Civil Procedure, 1908.
2. It is contended by third party applicant that he has filed
a testamentary suit for probate of Will of Late Dhanibai Jayram
Dayma. The plaintiff herein is the Caveator. The suit property in the
present suit is also subject matter of the testamentary suit.
Applicant has also filed eviction suit against tenants and a decree is
passed. The present suit requires to be stayed under Section 10 of
the Code of Civil Procedure, 1908. The applicant being proper and
necessary party, directions to implead issued.
3. Plaintiff has filed reply at Exh.20. According to plaintiff,
/home/steno32/Desktop/Court-32/Order-2022/Oct/E-9-RAD-391-2021.odt
-- 1 of 3 --
2
the subject matter of present suit and probate proceeding is different.
The alleged Will is bogus. The application filed is not maintainable.
The plaintiffs have filed the present suit as being coowners and
landlords of suit premises. The defendants No.1 to 3 are the tenants.
Defendants No.4 and 5 are claiming to be tenants as successors of
deceased tenant Kuvarsi Thakarsi Gala. The defendants intend to
induct third party and part with possession. The plaintiffs have
therefore filed the suit for injunction.
4. Third party applicant appears to be grandson of original
owner deceased Dhanibai Jayram Dayma. According to the
applicant, the suit premises are bequeath to him by Will. The
documents in support of application viz. copy of Will and
Testamentary Petition, reveals that third party applicant have
substantial interest into the suit premises. Plaintiffs have filed the
present suit subsequent to filing of testamentary petition. There
appears to be dispute over title between third party applicant and the
plaintiffs. The Court of Small Causes cannot go into dispute over
title. However, as third party applicant seems to be claiming as only
owner and landlord. It is just that he is added as a party defendant.
The application under Order 1 Rule 10 deserves to be allowed
accordingly.
5. So far as application for stay of suit is concerned, the
issues directly and substantially before the Hon'ble High Court and in
the present suit are all together with different. There is no case
made out to grant stay as per Section 10 of the Code of Civil
Procedure, 1908.
ORDER
1. Application is partly allowed.
/home/steno32/Desktop/Court-32/Order-2022/Oct/E-9-RAD-391-2021.odt
-- 2 of 3 --
3
2. Plaintiffs to add third party applicant as a
defendant.
3. Cause title be accordingly amended within 14
days.
4. Costs of application on Applicant.
Bandra Mumbai. ( S.V.Deshmukh )
Date : 07/10/2022. Judge, C. R. No.32.
Order dictated & typed on : 07/10/2022.
Order checked & signed on : 10/10/2022.
.
/home/steno32/Desktop/Court-32/Order-2022/Oct/E-9-RAD-391-2021.odt
-- 3 of 3 --