AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.295 OF 2008 IN CHAMBER SUMMONS NO.383 OF 2008 IN SUIT NO.712 OF 2003 Shri Viren Pravin Choksey .... Appellant Vs. Mrs. Neelaben Dahyabhai Patel & Ors. .... Respondents Mr. Bhavesh Parmar for the appellant. Ms. Nutan Moily for respondent 1. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATED : 1ST OCTOBER, 2008. P.C. :- 1. By impugned order dated 18/6/2008, learned Single Judge dismissed the chamber summons taken out by the appellant praying that he may be joined as party defendant. Respondent 1 has filed the instant suit against respondents 2 to 8, inter alia, for a AJN 2 declaration that the Consent Terms dated 13/2/2001 arrived at between the defendants interse are bad, illegal, against the provisions of law and not binding upon her. 2. Learned counsel for the appellant pointed out that the suit is filed on 28/10/2002. It was dismissed on 29/1/2003. The defendants entered into a Development Agreement with the appellant in respect of the suit property on 15/4/2005. The suit was restored on 14/2/2006. The appellant, therefore, took out the instant chamber summons for joining himself as party defendant in the suit. Learned counsel pointed out that learned Single Judge dismissed the chamber summons observing that the Development Agreement has been entered into during the pendency of the suit and under section 52 of the Transfer of Property Act, the property could not have been transferred by any party to the suit without the leave of the court. Learned counsel contended that if the above dates are taken into consideration, it is evident that the observation made by learned Single Judge is factually incorrect. AJN 3 3. Learned counsel further contended that a public notice was issued by the appellant on 6/4/2005. However, respondent 1 did not respond to it. She did not lodge any complaint. He submitted that the interpretation put on clause 22 of the Development Agreement by learned Single Judge is not correct and the appellant's case is covered by the last sentence of clause 22 of the Development Agreement and, therefore, the impugned order be set aside. 4. Learned counsel for respondent 1, on the other hand, submitted that respondent 1 had filed an application for restoration of the suit on 6/10/2003 and in that application a reply was filed by the defendants on 25/11/2003. The defendants were, therefore, aware that an application for restoration of the suit was filed and yet they entered into the Development Agreement. She submitted that the appellant is not a necessary party. Learned counsel further submitted that reliance placed on clause 22 of the Development Agreement is apt. She submitted that, therefore, learned Single Judge was right in dismissing the chamber AJN 4 summons. 5. We are informed by learned counsel for the appellant that respondents 2 to 8 have been served by advocates' notice. However, they have chosen not to remain present. 6. Inasmuch as the Development Agreement is entered into after the dismissal of the suit and before the suit was restored, in our opinion, learned Single Judge's observation that it is hit by section 52 of the Transfer of Property Act cannot be sustained. Prima facie, it appears to us that the defendants have kept the appellant in dark about the present litigation. It is also reasonable to argue that the appellant is covered by the last sentence of clause 22 of the Development Agreement. Clause 22 of the said Development Agreement reads thus : “22. If any relatives of the Owners or any one through MR. LEO FLORENCE PEREIRA or GEORGE JULIUS PEREIRA makes any claim to the said property or any part thereof and files any suit or starts any litigation, the Owners shall remain responsible to defend the same at their cost and if the Developer has to spend any money for the same, the Owners hereby agree to indemnify and keep indemnified the Developer. If any third party AJN 5 creates any litigation, the Developer shall remain responsible for the consequences.” However, on this aspect, we do not want to express any final opinion. In the circumstances of the case, we are of the opinion that to prevent multiplicity of proceedings, it is necessary to allow the appellant to be joined as party defendant in the suit. Hence, the impugned order dated 18/6/2008 is set aside. The chamber summons is made absolute in terms of prayer clauses (a) and (b). We make it clear that we have not expressed any final opinion on any of the issues involved in the suit. All contentions of both sides are kept open. Appeal is disposed of in the aforestated terms. [SMT. RANJANA DESAI, J.] [K.K. TATED, J.]