Order 7

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 26
IN
R.A.D. SUIT NO. 391 of 2021
(CNR : MHSCA3-000923-2021)
Mr. Tarachand Mahadeo Dayma & Anr … Plaintiffs.
V/s
1. Mr. Bhavesh Mohanlal Thakkar & Ors. ...Defendants.
Coram : A. J. Fatale,
Judge, C.R.No.32 (B.B.),
Date : 20.02.2026
ORAL ORDER :
Perused the application, say filed by plaintiff vide
Exh.29 and rejoinder filed by the defendant no.2 vide Exh.34 and
record. Heard advocate for defendant no. 2 and plaintiff.
2. Present application is filed by defendant no. 2 to direct
the plaintiff to delete his name from the suit. It is contented by the
defendant no. 2 that, as stated in the written statement Mrs. Dhanibai
Dayma was the landlady of the suit property who expired in 1990.
During the lifetime of the landlady her grandson, Mr. Mamchand U.
Dayma was looking after the suit property and after her death, the
said Mr. Mamchand Dayma was collecting the rent. As also
mentioned in written statement the said Mr. Mamchand Dayma had
filed R.A.E. Suit No. 338 of 2021 for eviction against, on false
ground. The defendant no. 2 further stated that he was 70 years old
and suffering from various ailments and hence owing to his age and
medical conditions he has no strength to fight out any litigation.
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3. It is further contented that, he surrendered tenancy right
and thus handover vacant peaceful possession of the suit premises to
the plaintiff in R.A.E. Suit No. 338 of 2021 as mentioned in the
consent terms dated 10.06.2022 and the suit was decreed in terms of
the consent terms. Therefore, the cause of action does not survive
against him and hence he is no longer a necessary party in the
present suit. It is necessary to direct plaintiff to delete the name of
defendant no.2 from the suit. Hence, defendant no. 2 lastly prayed to
allow the application.
4. The plaintiff filed reply at Exh.29 and strongly opposed
the application. It is contented that, defendant no. 2 and Mr.
Mamchand Dayma inspite of having knowledge, they have filed
R.A.E. Suit No. 338 of 2021 in collusion with each other. The alleged
consent terms executed in R.A.E. Suit No. 338 of 2021 are not
binding on the plaintiff as plaintiffs were not party in the said suit.
Mr. Dhanibhai Dayma was having two sons namely Mr. Udaychand
and Mr. Mahavir. Plaintiff are son of Mahavir Dayma. Mamchand
Dayma is son of Udaychand Dayma. It is falsely contented that during
lifetime of said Dhanibhai Dayma, Mr. Mamchand Dayma was looking
after the suit property and after his death Mamchand Dayma was
collecting rent. The plaintiffs have denied that in view of alleged
subsequent development the cause of action does not survive against
defendant no.2. Hence, prayed to dismiss the application with
compensatory costs.
5. The defendant no. 2 filed rejoinder and reiterated
whatever contented in application and denied the adverse
contentions made by plaintiff.
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6. On perusal of record it appears that, present suit filed by
plaintiffs to declare that the act of defendants to create third party
right in respect of tenanted premises is illegal and unlawful and
further ancillary reliefs. It is contention of plaintiff that they are
co-owners and landlord of the building name as Gajanan Bhavan.
Defendants no. 1 to 3 are their tenants and defendant no. 4 and 5 are
claiming to be the successors of deceased tenant late Shri. Kuvarsi
Thakarsi Gala. Defendant no. 2 is tenant of room no. 6 on first floor
of Gajanan Bhavan. The defendants have no right to create third
party interest in respect of tenanted premises.
7. Defendant no. 2 has filed written statement vide Exh.17.
It is contented by the defendant no. 2 that the suit filed by plaintiff is
bad for misjoinder of cause of action and also bad for non-joinder of
necessary parties. It is also contented by the defendant no. 2 one Mrs.
Dhanibai Dayma was landlady of suit property and she expired in
1990. Her grandson Mr. Mamchand Dayma was looking after the suit
property after her death and was collecting rent from the defendant
in respect of room no. 6. Mamchand Dayma filed eviction suit being
R.A.E. Suit No. 338 of 2021. He was submitted in his written
statement that he is willing to relinquish his tenancy and hand over
vacant and peaceful possession of suit premises to the plaintiff Mr.
Mamchand Dayma. The defendant no. 2 has filed copy of consent
decree passed in R.A.E. Suit No. 338 of 2021. It appears that said suit
was filed by Mamchand Udaychand Dayma against present defendant
no. 2 for eviction and possession of suit premises. In the said suit
present plaintiffs were not party. In view of the consent terms the said
suit appears to be disposed off. The plaintiffs have made amendment
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in the plaint and brought on record Mamachand Udaychand Dayma
as defendant no. 6 and Shri. Ghanshyam Udaychand Dayma as
defendant no. 7.
8. Considering the nature of present suit in my opinion,
defendant no. 2 cannot be deleted from the array of defendant. The
application filed by the defendant no. 2 is liable to be rejected.
Hence, I pass the following order :-
ORDER
1. Application stands rejected.
(A. J. Fatale)
Judge, C.R.No.32 (B.B.)
20.02.2026
Dictated on : 20.02.2026
Checked & signed on : 20.02.2026
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