Partly allowed

Hiralal Sankatha Thakur and Ors. v. Kamaladevi W/O Manekchand Bhacha and Ors.

Bombay HC4 Feb 2008CHS/194/2007

Case brief

AI extract

What is this about?

The court allowed transposition of deceased plaintiff's heirs as defendants to protect their rights while preventing the original plaintiff from settling without court leave. The prayer to amend pleadings against these heirs was dismissed, directing the original plaintiff to file separate proceedings.

What did the court decide?

Chamber Summons No.1613 allowed for transposition of heirs as defendants. Chamber Summons No.194 dismissed as regards prayer for amendments.

Hiralal Sankatha Thakur and Ors. Vs Kamaladevi W/O… — Property and Title | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO.194 OF 2007
IN
SUIT NO.3353 OF 2005

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WITH

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CHAMBER SUMMONS NO.1613 OF 2005

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IN
SUIT NO.3353 OF 2005

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Hiralal S. Thakur & Ors.....Plaintiffs
V/s.

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Kamladevi M.Bacha & Ors.....Defendants

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Ms.Gauri Godse for the Applicant.
Mr.R.O. Pathak for the Plaintiff Nos.2-A to 2-F.
Mr.Suneel Mogre for Defendant Nos.1 to 3.
Mr.Pradip Kadam for Defendant No.5.

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CORAM : S.J. VAZIFDAR, J.
DATED : 4TH FEBRUARY, 2008.

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P.C. :

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1.It will be convenient to dispose of both the
Chamber Summons by a common order.

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2.In Chamber Summons No.1613 of 2005, Plaintiff
No.1 has sought an order transposing Plaintiff Nos.2-A
to 2-F as Defendant Nos.6 to 12 in the above suit. In
Chamber Summons No.194 of 2007, Plaintiff No.1 has
sought the same order namely for transposition and for
amendments to the suit. The amendments are directed

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against the heirs of Plaintiff No.2.

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3.Plaintiff No.1 and his brother original
Plaintiff No.2 had filed a declaratory suit No.641 of
1959 regarding their tenancy rights in respect of the
suit premises. The suit was decreed. The decree was
confirmed by this Court as well by the Supreme Court.

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4.Thereafter, based on and in view of the said
decree, Plaintiff No.1 and original Plaintiff No.2
filed the suit in the Bombay City Civil Court being
S.C. Suit No.5197 of 1996 against Defendant Nos.1 to
5 for possession. The suit was based on the ground
that Defendant Nos.1 to 5 were trespassers in the said
premises. During the pendency of this suit, Plaintiff
no.2 expired and Defendant Nos.2-A to 2-F were brought
on record as his heirs.

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.Thereafter Defendant Nos.1 to 5 took an
objection on the grounds of jurisdiction which was
upheld by an order dated 30.4.2005 and the plaint was
returned to Plaintiff No.1 for being filed in this
Court.

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5.Disputes had arisen between Plaintiff No.1
and the heirs of Plaintiff No.2 even before the suit

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was filed in this Court. The heirs of Plaintiff No.2
engaged another set of advocate. It is not
permissible for the Plaintiffs to be represented by
different advocates under the procedure followed by
this Court.

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6.As stated above, the reliefs claimed fall

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under two categories namely for transposing the heirs
of Plaintiff No.2 as Defendant Nos.6 to 12 and for
amendments.

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7.By the proposed amendments, Plaintiff No.1
seeks reliefs also against the heirs of Plaintiff No.2
upon their being transposed. It was submitted that
the heirs of Plaintiff No.2 had filed RAD No.542 of
2002 in the Small Causes Court inter-alia for a
declaration that they had tenancy rights in the suit
property. The suit was dismissed. However, an appeal
against the order is pending before the Appeal bench
of the Small Causes Court.

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8.I am inclined to allow Chamber Summons
No.1613 of 2005 for transposition. The order dated
28.8.2006 passed in Chamber Summons No.1613 of 2005
need not detain me as the learned Judge merely granted
liberty to Plaintiff No.1 to take out a fresh Chamber

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Summons. The contentions were not decided by the
learned Judge. It is pursuant to this order that
Plaintiff No.1 has taken out Chamber Summons No.194 of
2007 which, for the reasons I shall shortly state, I
am not inclined to allow.

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9.It is obvious that in view of the disputes
between the Plaintiffs inter-se, it is not possible to
prosecute this suit by them as co-plaintiffs. The
question is which of the Plaintiffs ought to be
transposed.

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10.In my view so long as the rights and
contentions of Plaintiff Nos.2-A to 2-F are protected,
in the facts and circumstances of this case, it is
appropriate that they be transposed as the Defendants
and not Plaintiff No.1.

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11.Firstly, as I have observed earlier, I intend
protecting the rights of Plaintiff Nos.2-A to 2-F in
the event of any decree being passed in the present
suit as well as their right to prosecute this
litigation. This is done by making it clear that
merely by virtue of their being transposed as the
Defendants they will not be denied the right to
contend that Defendant Nos.1 to 5 are trespassers and

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to support a decree being passed against them.
Further in the event of the Plaintiffs settling this
suit with Defendant Nos.1 to 5 or any one or more of
them, they shall not do so without the leave of this
Court. In the event of the Plaintiffs withdrawing the
suit or abandoning the same in any manner, Plaintiff
Nos.2-A to 2-F shall be transposed once again as the
Plaintiffs in the suit.

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.Secondly, the decree passed in Declaratory
Suit No.641 of 1959 was in favour of Plaintiff No.1
and his brother original Plaintiff No.2. It is
appropriate therefore that Plaintiff No.1 remains as
the Plaintiff in this suit which is based
on/consequent to the said decree. Thirdly, RAD suit
filed by Plaintiff Nos.2-A to 2-F has been dismissed
by the Small Causes Court.

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12.In the circumstances, Chamber Summons No.1613
of 2005 is made absolute in terms of prayer (a) with
the above clarification/qualification.

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13.This brings me to Chamber Summons No.194 of
2007.

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.It is not necessary to consider prayer (a)

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thereof which is also for transposition of Plaintiff
Nos.2-A to 2-F as Defendant Nos.6 to 12 in view of my
having allowed Chamber Summons No.1613 of 2005.

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14.I am however not inclined to allow the
amendments. These amendments as stated above, are
directed against the newly added Defendant Nos.6 to
12. The cause of action against them and the evidence
to be adduced against them is different from the cause
of action and evidence in respect of defendant Nos.1
to 5. Defendant Nos.1 to 5 ought not to be burdened
with the litigation which involves the disputes
between Plaintiff No.1 and Defendant Nos.6 to 12.

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.Further in the event of Defendant Nos.6 to 12
succeeding in RAD suit No.542 of 2002 filed by them
ultimately it will lead to confusion regarding the
nature of the reliefs to be granted in the present
suit.

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15.In the circumstances, it is desirable that
Plaintiff no.1 files separate proceedings against
Defendant Nos.6 to 12 in respect of their alleged
rights against them. They are always at liberty to do
so.

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16.With the aforesaid liberty, Chamber Summons
No.194 of 2007 is dismissed as regards the prayer for
amendment.

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17.Both the Chamber Summons are accordingly
disposed of.

Hiralal Sankatha Thakur and Ors. v. Kamaladevi W/O Manekchand Bhacha and Ors.

Case brief

What is this about?

What did the court decide?

Hiralal Sankatha Thakur and Ors. v. Kamaladevi W/O Manekchand Bhacha and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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