kbp 1 5580-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5580 OF 2009 Kannaiyalal Purshottamdas Shah and ors. ..Petitioners Vs. Mukesh P.Ajmera and ors. ..Respondents ......... Mr.Satyan Vaishnav with Mr.Anil Chauhan i/b.M/s.N.N.Vaishnawa and co., for petitioners. Mr.D.D.Madon i/b.M/s.Thakore Jariwala and Associates, for respondent no.1. ....... CORAM : A.S.OKA, J.. DATE : 1 st OCTOBER, 2009. P.C. : 1] By this writ petition under Article 227 of the Constitution of India, the petitioners who are third parties to the suit filed by the first and second respondents, have taken an exception to the judgment and order dated 13 th May, 2009 passed by the learned Judge of the City Civil Court, Mumbai. By the said judgment and order, the chamber summons taken out by the applicants praying for impleading them as party defendants to the suit has been rejected. On 20th July, 2009 notice for final disposal was issued. There is an affidavit of service of notice to the 2nd to 9th respondent filed on record. None appears for them. 2] The first and second respondents herein filed a suit against the 3rd to 9th kbp 2 5580-09.sxw respondents herein. The substantive prayer in the suit is to allow the first and second respondents to carry out repair work to their twelve hutments in Laxman Jiva Chawl situated at I.B. Patel Road, Bombay, 400063. It is alleged in the plaint that the said chawl is situated on land bearing survey no.120 (part) survey no.118 (part) CTS Nos.442-A/3,357, 358. The case of the first and second respondents is that they have purchased 12 hutments from earlier occupants. It is contended that the first and second respondents are the bona fide purchaser of the said 12 hutments. The suit proceeds on the allegation that the third to seventh respondents who are first to fifth defendants have been creating nuisance and have tried to obstruct the entry of first and second respondents. It is alleged that the third and fourth respondents filed false and bogus complaints. Reliance has been faced on a letter annexed to the plaint as exhibit “B” written by the first petitioner by which he has recorded his no objection the first respondent carrying out repairs to the hutments. The second prayer in the suit is for injunction restraining the defendants from obstructing the path of first and second respondents and from creating nuisance. There are consequential reliefs claimed in the suit. 3] In the chamber summons taken out by the petitioners, an affidavit in support was filed by the first petitioner. The first petitioner claimed that the petitioners are owners of the suit property, and therefore, they are necessary and proper parties to the suit. The chamber summons was contested by the first and kbp 3 5580-09.sxw second respondents by filing affidavit of a Director of the second respondent. The contention raised by the first and second respondents in the affidavit-in-reply is that the said Director Mr.M.P.Doshi of the second respondent was the Director of five limited companies along with first petitioner. It was contended that the first petitioner is the co-owner of the property on which suit hutments are situated. It was contended that the first petitioner and other co-owners were already plaintiffs in the said suits in as much as the second respondent (second plaintiff) was a Private Limited company of which the first petitioner was a Director. 4] The chamber summons has been dismissed by the impugned order. The learned Judge observed that from the minutes of the meeting of the Board of Directors of the second respondent it is seen that the first petitioner is one of the Directors of the second plaintiff company. The learned Judge observed that It can be said that the first petitioner was already a plaintiff in the suit filed by the first and second respondents. The learned Judge held that the first petitioner cannot contest the suit in two capacities, firstly, as the Director of the second plaintiff Company and secondly in his individual capacity. 5] The learned counsel for the petitioners submitted that they are admittedly co-owner of the properties on which the suit hutments are situated. It is submitted that considering prayer clause “a” of the plaint, the petitioners are certainly necessary as well as proper parties to the suit. 6] Learned Senior Counsel for the first respondent (original first plaintiffs) kbp 4 5580-09.sxw submitted that the suit does not relate to the property of which the petitioners are claiming to be co-owners. He submitted that the suit relates only to 12 hutments purchased by first and second respondents which are situated on the said property. He submitted that no relief is being claimed in respect of the land below hutments. He placed reliance on a decision of the Apex Court in the case of Kasturi Vs. Iyyamperumal & ors. [AIR 2005 SC 2813]. He submitted that no interference is called for. 7] I have carefully considered the submissions. The first substantive relief claimed in the suit is that the court be pleased to allow the first and second respondents to carry out repair works to the 12 hutments. The petitioners are claiming to be the co-owners of the land on which the suit hutments are situated. In fact, in the plaint, the first and second respondents have accepted the first petitioner as a co-owner and, in fact, reliance has been placed on a letter allegedly written by the first petitioner by which the first petitioner purportedly permitted the first respondent to carry out the repairs. 8] It is necessary to consider the additional reply filed by Mr.M.P.Doshi, a Director of the second respondent. In paragraph 2 of the said reply, it is stated thus:- "2. I say that I am the director of (1) Vivid Realtors Pvt. Ltd. (2) Blue Sea Realtors Pvt. Ltd., (3) Kshama Realtors Pvt. Ltd. (4) Shirbha Realtors Pvt. Ltd. (5) Ocean Link Realtors Pvt. Ltd., along kbp 5 5580-09.sxw with Mr.K.P.Shah, who is the director, shareholder, co-owner of the property situated at Goregaon (East), Mumbai. hereto annexed and marked Exhibit-"1" (colly.) are the copies of the Board Meeting held between the parties. I further say that the rights of applicants are already protected by Blue Sea Realtors Pvt. Ltd., it has already filed a suit against the Defendants. In paragraph 7 of the reply it is alleged that the first petitioner and other co- owners are already plaintiffs in the suit in the form of second respondent company. The said contention seems to have been accepted by the trial Court. In the impugned order it is observed thus: ".................. Plaintiff no.2 is Blue Sea Realtors pvt. Ltd. Co. Thus, applicant K. Shah being one of the Director of plaintiff no.2 company can be said to be a party plaintiff in the present suit. He cannot fight the suit in two capacities, first being Director of the company a plaintiff and second in individual capacity as a defendant." 9] This is the only ground on which the chamber summons has been rejected. Obviously, the said ground fallacious. While deciding chamber summons, the learned Judge was required to consider the frame of the suit, kbp 6 5580-09.sxw and thereafter, to decide whether the petitioners were either necessary or proper parties to the suit. The learned trial Judge has completely misdirected himself and has passed the impugned order only on the aforesaid ground. The impugned order shows complete non-application of the mind and only on the said ground, the impugned order deserves to be quashed and set aside. As the learned trial Judge has not considered the relevant aspects of the matter, the chamber summons deserves to be remanded to the trial Court for fresh disposal. Hence, I pass the following order:- (a) The impugned order dated 13 th May, 2009 is quashed and set aside. (b) The Chamber Summons No.186 of 2008 is restored. (c) The trial court shall decide the Chamber Summons afresh in the light of the observations made in this order. (d) The Chamber shall be decided as expeditiously as possible and preferably by the end of year 2009. (e) Writ petition is partly allowed in the above terms. ( A.S.OKA, J. )