CHITRALEKHA BUILDERS vs G. I. C. EMPLOYEES SONAL VIHAR CO-OPERATIVE HOUSING SOCIETY LTD.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Bom) 1081

IN THE HIGH COURT OF BOMBAY
CHITRALEKHA BUILDERS
Versus
G. I. C. EMPLOYEES SONAL VIHAR CO-OPERATIVE housing SOCIETY LTD
Decided Date: 19/08/05

Headnote:Civil Procedure Code, 1908 - Order 1, Rule 10(2) - Impleadment as party in proceedings. - Before allowing any prayer under Order I, Rule 10(2) of CPC, it is necessary to examine whether a person seeking impleadment has prima facie right in subject-matter of suit. - The power to strike out or add parties can be exercised by the Court at any stage of the proceeding by the Court exercising powers under sub-rule (2) of Rule 10 of Order 1, Civil Procedure Code. However, before allowing any prayer under Order 1, Rule 10(2), it is necessary to examine whether a person seeking impleadment has prima facie right in the subject matter of the suit and his presence before the Court may be necessary i order to enable the Court to effectually and completely adjudicate upon and settle all the issues involved in the suit. The nature of the controversy involved would equally decide the status of the party, namely, whether it is necessary or not. The present suit, is between G.I.C. Society and M/s. Chitralekha Builders. The contention is that M/s. Chitralekha Builders became partnership firm of which the present appellants were partners. The suit property involved in the suit is that of Chitralekha Builders; wherein appellants are claiming their interest, final adjudication whereof would be a subject-matter to be adjudicated in the suit. In order to effectually and completely adjudicate upon the issue as to whether the suit property belongs or belonged to partnership firm or its partners or it remains the property of proprietress of the proprietary firm M/s. Chitralekha Builders, the presence of the appellants before the Court would be necessary. This issue by no stretch of imagination could be decided in absence of the appellants. The single Judge was in error in dismissing the Chamber Summons of the appellants seeking impleadment to be a party to the suit on narrow consideration. This is case; wherein single Judge ought to have exercised discretion to implead the appellants as defendants, if there was serious objection of the plaintiff to add them as co-plaintiffs. Appellants are claiming interest in the suit property. Plaintiff G.I.C. Society has given no objection for impleadment of the appellants as party defendants. Proprietress could not demonstrate any prejudice to her interest, if chamber summons of the appellants is allowed. Thus, considering the scope of sub-rule (2) of Rule 10 of Order 1 of Civil Procedure Code, appellants deserve to be added as party defendants as they ought to have been joined as plaintiffs or, at any rate, as defendants in the suit. Even in the changed scenario, without their presence the issues involved in the suit cannot be completely and effectually adjudicated upon. The interest of the appellants, if any, is bound to be affected in the event they are not allowed to be party to the suit. The appellants are entitled to defend suit. As a matter of fact this is a fit case for exercise of discretion by the Court under Order 1, Rule 10(2) of Civil Procedure Code. However, in view of amendment to the chamber summons and invocation of powers of this Court under Order 1, Rule 10(2), it is not necessary to exercise that power because the same purpose is being served by allowing it in exercise of that powers. AIR 1963 SC 786 and 2005(3) Mh LJ 330 - Relied on.

Judgment

V. C. DAGA, J.

( 2 ) HEARD finally by consent of parties at the stage of admission, dispensing with the record and proceedings since the parties agreed that all the relevant documents for deciding appeal are available on record.

( 3 ) THIS appeal is directed against the order dated 26th October, 2004 passed by learned single Judge to the extent it rejects Chamber Summons No. 1334/2004 in Suit No. 1335/1988.

( 4 ) THE chamber summons was moved by the appellants to become co- plaintiffs in the suit filed by respondent No. 1 and respondent No. 55 against respondent Nos. 2 to 54 (original defendant Nos. 1 to 53 ). According to the appellants, they were and are interested in the suit property. Without their presence all the questions involved in the suit cannot be effectually and completely decided. Outline Chronology :

( 5 ) THE outline chronology leading to the present appeal is as under :

( 6 ) THE property in question bears Survey No. 281, C. T. S. No. 727; admeasuring 5082 sq. yrds. or thereabout equivalent to 4249. 29 sq. mts. situated at village- Mulund, Taluka-Kurla, Mumbai- 400 080; more particularly described in exh. B forming part and parcel of the plaint ("the suit property" for short ).

( 7 ) THE parties to the appeal are hereinafter referred to in their original capacity i. e. as described in the suit for the sake of clarity.

( 8 ) THE suit was filed for specific performance of an agreement dated 28th april, 1980 entered into between plaintiff No. 2 - Mrs. Kusum Gorule @ geetanjali Sohani ("mrs. Kusum" for short) and defendant Nos. 1 to 52 in the suit/respondent Nos. 2 to 53 herein, the original owners of the suit property ("vaity family" ). According to the plaintiffs, an agreement dated 28th April, 1980 was for the benefit of plaintiff No. I/respondent No. 1 - G. I. C. Employees sonal Vihar Co-operative Housing Society Ltd. ("g. I. C. Society" for short) with whom Mrs. Kusum under an agreement dated 9th May, 1980 agreed to provide constructed area after developing the suit property.

( 9 ) THE suit filed was registered as Suit No. 1335 of 1988 on the original side of this Court. During the pendency of the suit, disputes and differences arose between plaintiffs inter se and they found it difficult to prosecute suit as co- plaintiffs. Consequently, Chamber Summons No. 1324/2003 was taken out by plaintiff No. 1 (G. I. C. Society) for transposition of plaintiff No. 2 (Mrs. Kusum) as defendant, along with another Chamber Summons No. 1325/2003 for amendment to implead the present appellants, applicants in Chamber Summons no. 1324/2003 so as to make them parties to the suit as defendants along with plaintiff No. 2. As a counter blast, Chamber Summons No. 276/2004 was taken out by plaintiff No. 2 - Mrs. Kusum to transpose plaintiff No. 1 as defendant.

( 10 ) THE present appellants had also taken out Chamber Summons No. 1334/2004 to become co-plaintiffs in the suit contending that plaintiff No. 2 Mrs. Kusum had transferred her interest in the agreement dated 28th April, 1980 in favour of the partnership firm M/s Chitralekha Builders of which appellant No. 2 is one of the partners with Mrs. Kusum and two others.

( 11 ) THE chamber summons was opposed by the plaintiffs contending that the appellants herein could not be the co-plaintiffs in absence of their consent since the plaintiffs are 'dominus litis'. The learned single Judge, simultaneously, heard all the chamber summonses and chose to dispose them of by a common order dated 26th October, 2004, the details of which are given hereinafter.

( 12 ) CHAMBER Summons No. 1325/2003 taken out by plaintiff No. 1 (G. I. C. Society) came to be rejected, whereas Chamber Summons Nos. 1324/2003 and 276 of 2004 came to be allowed in terms of the following order : (i) Plaintiff No. 1 is transposed as defendant No. 54. (ii) Plaintiff No. 2 shall not settle compromise or withdraw the suit without giving at least four weeks written notice of her intention to do so to plaintiff No. 1 and

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday

2005 Supreme(Bom) 1081

IN THE HIGH COURT OF BOMBAYCHITRALEKHA BUILDERS VersusG. I. C. EMPLOYEES SONAL VIHAR CO-OPERATIVE housing SOCIETY LTDDecided Date: 19/08/05

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
CHITRALEKHA BUILDERS
Versus
G. I. C. EMPLOYEES SONAL VIHAR CO-OPERATIVE housing SOCIETY LTD
Decided Date: 19/08/05