Plaintiff challenged rejection of his Chamber Summons seeking amendment of a suit for injunction over a demolished structure, to implead his sister-in-law and add a declaratory prayer. The High Court held refusal unsustainable as it avoided multiplicity, quashed the order and allowed amendment.
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14.wp.16113.23.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16113 OF 2023
Mr. Keshavram Santram Jaiswal..Petitioner
Versus
Mumbai Metropolitan Regional Development
Authority and Ors.
..Respondents
Mr. Induprakash Tripathi a/w. Mr. Virendra Tripathi, Advocates for Petitioner.CORAM:MILIND N. JADHAV, J.
DATE:JANUARY 02, 2024.
P.C.:
1. Heard Mr. Tripathi, learned Advocate for Petitioner who is
the original Plaintiff in Suit No.2613 of 2019 filed in the Bombay City
Civil Court at Mumbai.
2. Mr. Tripathi would contend that the impugned order dated
05.09.2023 has been passed in Chamber Summons No.55 of 2023 by
the learned Trial Court. Chamber Summons was filed by the Plaintiff
seeking an amendment to the plaint. Amendment was two fold;
namely impleadment of Smt. Geeta Shobharam Jaiswal as Defendant
No.4 in the Suit and including a declaratory prayer in respect of the
suit structure/room.
3. Originally, the Suit was filed only against the Defendant Nos.1 to 3 (Government Bodies) for injunction and grant of alternate
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accommodation in view of the suit structure being taken over and
demolished by Defendant Nos.1 to 3. I have perused the prayer
clauses in the plaint which are in paragraph No.28 thereof on page
Nos.51 and 52 of the Writ Petition.
4. Mr. Tripathi in all fairness would point out that between the Petitioner and the proposed Defendant No.4 who is the Petitioner’s sister-in-law, Suit No.1577 of 2018 was filed earlier by the Petitioner in the Bombay City Civil Court which is still pending. That Suit was for simplicitor injunction since the sister-in-law had staked her claim and right to the suit structure/room belonging to Petitioner. He would submit that on 05.07.2018 in that particular Suit, ad-interim relief was granted by the Court after recording the statement of the proposed Defendant No.4 herself that possession of the suit room/structure was with the Plaintiff i.e. Petitioner before me and it was so admitted by her. I have seen the order dated 05.07.2018 which is appended to the Petition.
5. Mr. Tripathi would submit that subsequent thereto MMRDA took over possession of the suit structure/room and demolished the same all together. He would fairly submit that in the meanwhile the proposed Defendant No.4 approached the MMRDA and once again staked a claim to the suit structure/room. On merits he would submit that the Petitioner and his elder brother (who is since deceased) had
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two separate rooms and during the lifetime of the elder brother, he
had sold his room and shifted to Kandivali alongwith his wife
Defendant No.4 and thereafter expired in the interregnum. Despite
these strong facts, Defendant No.4 has falsely staked a claim to the
structure/room belonging to the Petitioner. Ideally, I would have asked
the Petitioner to file a separate Suit for declaration also, but that would
result in further multiplicity of litigation and proceedings. In order to
avoid multifarious proceedings between the same parties, it would be
trite to direct that the proposed Defendant No.4 be impleaded in the
Suit alongwith the necessary amendment for declaratory relief sought
for by the Plaintiff.
6. Mr. Tripathi has drawn my attention to Schedule-A which is the proposed amendment in S.C. Suit No.2613 of 2019 which is at page Nos.32 to 34 to the Writ Petition. There is a specific relief seeking declaration of right, title and entitlement on occupation of the suit room/structure as also entitlement for permanent alternative accommodation from MMRDA.
7. Hence, in the interest of justice, the impugned order is therefore not sustainable. Chamber Summons for impleadment and including the declaratory relief ought to have been allowed by the Trial Court. The impugned order dated 05.09.2023 thus stands quashed and set aside.
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8. Chamber Summons No.55 of 2023 stands allowed in terms of the amendment at Schedule-A on page Nos.32 to 33. Amendment will be permitted to be carried out by the Plaintiff within a period of three weeks from today by the Trial Court. Once the amendment is carried out, appropriate Court fees shall be paid which the Petitioner has undertaken to pay after the proposed amendment as per ScheduleA is carried out and thereafter the Suit shall be proceeded with strictly in accordance with law.
9. With the above directions, Writ Petition stands allowed and disposed.
[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed by AJAYTRAMBAK AJAY TRAMBAKUGALMUGALE UGALMUGALE Date: 2024.01.05 10:59:49 +0530
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1 issue framed by the court
Whether the Trial Court erred in rejecting the Plaintiff's Chamber Summons for impleading Defendant No.4 and adding a declaratory prayer to the plaint?
Keshavram Santram Jaiswal
Mumbai Metropolitan Regional Development Authority
Geeta Shobharam Jaiswal
Milind N. Jadhav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court