Allowed

Satvik Rajiv Samani and Another v. Smt. Shardaben Prabhudas Samani and Another

Bombay HC7 Jul 2014APP/271/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a trial judge's order striking off a party from the plaint. The Court held that based on averments of the plaintiff regarding the defendant's intermeddling with a deceased's estate, the defendant was a proper party, though no opinion was expressed on the merits.

What did the court decide?

The order dated 26 March 2014 striking off the name of defendant No.2 is set aside and the notice of motion is dismissed.

Satvik Rajiv Samani and Another Vs Smt. Shardaben Prabhudas Samani… — Partition | Bombay HC (2014)

APP-271-14

Uday P. Kambli

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.271 OF 2014

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NOTICE OF MOTION (L) NO.128 OF 2014 IN SUIT (L) NO.947 OF 2013 Satvik Rajiv Samani and another ...Appellants v/s. Shardha Prabhudas Samani and another ...Respondents …

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Dr.Birendra Saraf, Sr.Advocate with Mr.Tushar Gujjar, Mr.Amit Mehta i/b Solicis Lex for appellants.

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Mr.Vishal Kanade i/b Kurdukar Associates for respondent No.2. Mr.Dhrmesh Pandya i/b Pandya Gandhi & Co. for respondent No.1.

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Mr.Bharatkumar M.Jain i/b M/s.Manilal Kher Ambalal & Co. for Ms.Dhyaana Panchal.

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CORAM: MOHIT S. SHAH, C.J. & M.S.SONAK, J. DATE : 7 JULY 2014

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P.C.:

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This appeal is directed against the order dated 26 March 2014 of the learned Trial Judge of this Court, by which the notice of motion taken out by defendant No.2-Smt.Heena Mihir Mehta was allowed and the applicant/plaintiff was directed to strike off the name of the said defendant No.2 from the plaint and all other interlocutory proceedings.

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Defendant No.2 had moved the above notice of motion purportedly under Order 1 Rule X of the Civil Procedure Code contending that there was no relief claimed against defendant No.2 and therefore defendant No.2 was not a necessary or proper party.

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APP-271-14

Uday P. Kambli

Learned counsel for the appellant/plaintiff invited our attention to the averments in the plaint and submitted that averments clearly indicate that as per the plaintiff's case, defendant No.2 is inter-meddling with the estate of the deceased. Learned counsel further submitted that in parallel proceeding, defendant No.2 had filed Misc.Petition No.1 of 2014 for grant of heirship certificate by contending that derendants Nos. 1 & 2 in the present suit are the sole legal heirs of the deceased to the exclusion of the appellant/plaintiff. Learned counsel, therefore, submitted that in this state of affairs, defendant No.2 was a necessary party and atleast a proper party.

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Learned counsel further states that in any view of the matter the appellant has already moved Chamber Summons No.566 of 2014 before the learned Trial Judge for amendment of the plaint and the appellant is going to move the learned Trial Judge for amendment of the said chamber summons to make further detailed averments against defendant No.2 and also to seek specific relief against defendant No.2. Learned counsel, therefore, submits that no useful purpose would be served by proceeding on the basis of the original plaint, which already contained the averment to the effect that defendant No.2 was inter-meddling with the estate of the deceased.

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Uday P. Kambli 3 APP-271-14

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Learned counsel for defendant No.2 supported the order of the learned Trial Judge and submitted that if the plaint is going to be amended, after amendment of the plaint the appellant/plaintiff may move for joining defendant No.2 as partydefendant in the suit and the interlocutory proceedings.

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Having heard the learned counsel for parties, we are of the view that in view of averments in the plaint that defendant No.2 was inter-meddling with the estate of the deceased, defendant No.2 is certainly a proper party and therefore we are inclined to set aside the order under appeal.

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In the result, the appeal is allowed. The order dated 26 March 2014 of the learned Trial Judge in Notice of Motion (L) No.128 of 2014 is set aside with a clarification that we may not be treated to have expressed any opinion on merits of the controversy between parties including defendant No.2. Notice of Motion (L) No.128 of 2014 stands dismissed.

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Appeal accordingly stands disposed of. Ad-interim stay granted earlier in this appeal stands vacated.

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CHIEF JUSTICE

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(M.S.SONAK, J.)

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Satvik Rajiv Samani and Another v. Smt. Shardaben Prabhudas Samani and Another

Case brief

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Satvik Rajiv Samani and Another v. Smt. Shardaben Prabhudas Samani and Another

Case brief

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What did the court decide?

What the court decided

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