Allowed

Shivkumar Mody v. Jayantilal P.Raval and Maruti Assoc.

Bombay HC29 Mar 2005CHS/101/2004

Case brief

AI extract

What is this about?

The court granted a chamber summons to amend the plaint and add a third party respondent as a defendant in a property suit, holding that prior court permission for the creation of third party rights does not preclude the plaintiff from seeking final adjudication against the new party.

What did the court decide?

The Chamber Summons was granted for amendment of the plaint to add M/s. Maruti Associates as a party defendant.

Shivkumar Mody Vs Jayantilal P.Raval and Maruti Assoc. — Property and Title | Bombay HC (2005)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORIDNARY ORIGINAL CIVIL JURISIDICTION

¶2

 CHAMBER SUMMONS NO.101 OF 2004
 IN
 SUIT NO.1803 OF 1989

¶3

 Shivkumar Mody .. Plaintiff
 Vs.

¶4

 Jayantilal Prabhashankar Rawal .. Defendant
 And

¶5

 M/s.Maruti Associates .. Respondents

¶6

 Mr.A.Rathod & Co. for the plaintiff in support of
 Chamber Summons

¶7

 Mr.P.Seksharia with Ms.V.Advani i/b Law
 Charter for respondent to show cause.

¶8

CORAM: S.U. KAMDAR, J.

¶9

DATE : 29TH MARCH, 2005

¶10

P.C. :

¶11

 1. The present Chamber Summons is taken out for

¶12

 amendment of the plaint on the ground that during the
 pendency of the suit the third party rights of
 development in the said property has been created of by
 the defendant in favour of one Maruti Associates having
 their address at Maruti Chamber, Plot Nos.49 & 50 near
 Veera Desai Road, Balaji Telefilm Road, Andheri (West),

¶13

 Mumbai 400 049. The said defendant is sought to be
 added as party defendants to the suit and various
 averments are sought to be added questioning the said
 transfer of the said rights in favour of the
 defendants.

¶14

 2. The learned counsel for the defendants has
 opposed the Chamber Summons and has drawn my attention
 to the order passed by the learned Single Judge of this
 Court in Notice of Motion No.1117 of 2003 on 8.8.2003.
 It is his contention that under the said orders this
 court has expressly relieved the defendant from
 undertaking which was given in clause 1 (iii) of the
 Order dated 10th July 1991 passed in Appeal No.588 of
 1991. The said undertaking interalia provided that the
 defendant should give notice of the intended sale
 and/or creation of third party rights and obtain
 necessary prior permission from this court for the
 same. According to the learned counsel for the
 defendant by an order dt.8.8.2003 the court has
 permitted the defendant no.1 to create third party
 rights in the said property in favour of proposed
 defendant no.2. The learned counsel for the proposed
 defendant no.2 contents that in view of the order

¶15

 dt.8.8.2003 the present Chamber Summons is not

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 maintainable and the same is liable to be dismissed.

¶17

 3. The aforesaid contention has no merits Even if
 the defendant no.1 has created third party rights in
 the property in favour of defendant no.2 with
 permission of this court still it cannot be said that
 the defendant no.2 cannot be added as party defendant
 to the present proceedings and that the plaintiff is
 not entitled to seek any relief against defendant no.2.
 To my mind such a course is not permissible because it
 would amount to dismissal of the suit without any
 trial. The additional contention of the proposed
 defendant no.2 that the rights of the plaintiffs are
 protected by reserving certain area in proposed
 construction of the building also cannot be accepted
 because it is well settled that interim arrangements
 made in any suit are always subject to the final
 outcome of the suit. The rights of the parties to the
 suit of final adjudication cannot be defeated in this
 manner. Whether the plaintiff succeeds or not in
 challenging the creation of the said rights in favour
 of defendant no.2 is the issue which is required to be
 determined at the final hearing of the suit and not at

¶18

 the stage of present Chamber Summons. In view thereto,
 Chamber Summons is made absolute in terms of prayer
 clause (a). Chamber Summons is granted accordingly.

Shivkumar Mody v. Jayantilal P.Raval and Maruti Assoc.

Case brief

What is this about?

What did the court decide?

Shivkumar Mody v. Jayantilal P.Raval and Maruti Assoc.

Case brief

What is this about?

What did the court decide?

What the court decided

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