- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.1220 OF 2007 SUMMONS NO.1220 OF 2007 SUMMONS NO.1220 OF 2007 IN IN IN SUIT SUIT SUIT NO.1207 OF 2006. NO.1207 OF 2006. NO.1207 OF 2006. Pravin Devichand Mutha. ..Plaintiff. v/s. Rukhmanidevi Bhagwandas Talival. ..Defendant. .... Mr. Nandu Pawar, for the Plaintiff. Mr.Dilip Rai, i/b. Ajay Rao, for the Defendant. Ms.Seema Gupta, i/b. A.M. Sarogi, for the Applicant. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 25th NOVEMBER, 2008 : 25th NOVEMBER, 2008 : 25th NOVEMBER, 2008. P.C.: P.C.: P.C.: 1. The present suit is filed by the plaintiff against the defendant seeking specific performance of an agreement for sale dated 10th June 2005 executed between the plaintiff and the defendant in respect of Flat No.3, admeasuring 520 sq.ft. carpet area on first floor of 31-B, Bhagwati Bhawan, Next to Russian Cultural Centre, Peddar Road, Mumbai-400 026. The plaintiff has in the suit also taken out a notice of motion being No.1430 of 2006 seeking interim reliefs. 2. The parties to the above suit have arrived at an amicable settlement which is incorporated in the consent terms executed between them. The said notice of motion appears on today’s cause list under the caption "For filing consent - 2 - terms". 3. In the morning session when the said notice of motion appearing under the caption "For filing consent terms" was called out, advocate Ms.Seema Gupta instructed by Mr.A.M. Sarogi submitted that her client, Dinesh Bhagwandas Talival, son of the defendant, has taken out the above chamber summons No.1220 of 2007 for being joined as party defendant to the suit, which chamber summons was earlier appearing on the cause list alongwith notice of motion No.1430 of 2006, but the same is not appearing on board today. The learned advocate submitted that she has no objection if the chamber summons is heard at 3.00 p.m. Therefore, with the consent of all the parties, appearing before me, the above chamber summons was taken up for hearing at 3.00 p.m. and taking of consent terms on file in notice of motion No.1430 of 2006 was deferred till then. 4. The learned advocate for the applicant in the chamber summons, submitted that the applicant Dhanesh Bhagwandas Talival is the son of the defendant. It was also submitted that according to the applicant, the suit flat belongs to his father and that he has already filed an administrative suit seeking administration of the estate of his deceased father being suit no.3888/1999. It was submitted that the applicant - 3 - is, therefore, desirous of being added as a party defendant to the present suit. It was submitted that under the circumstances, the parties to the suit should not be allowed to settle the dispute arising in suit no.1207/2006. 5. The learned advocate appearing for the defendant who is the mother of the applicant, produced before this Court an order dated 22nd March 2006 passed by this Court (Coram : D.K.Deshmukh, J.) in notice of motion no.393/2005 in suit no.3888/1999 filed by the applicant against his mother, the defendant in the present suit, wherein he has sought restraint orders in relation to the suit flat. From the said order dated 22nd March 2006, it is clear that the applicant’s (plaintiff therein) interim application was rejected by this Court in the following terms :- "Interim reliefs in relation to that flat have been claimed because according to the plaintiff the flat was partly owned by deceased Bhagwandas Talival. But admittedly share certificate of the flat even during the lifetime of the deceased was in the name of the defendant No.1. Share certificate issued by a co-operative Society has a presumptive value and therefore, at the prima facie stage it is not possible for this court to make any interim order which runs contrary to the share certificate. Notice of Motion is, - 4 - therefore, disposed of." Though the above order was passed more than one and half years back, admittedly, no appeal is preferred therefrom by the applicant. This Court is also informed by the advocate for the defendant that even the administrative suit filed by the applicant interalia against his mother, the defendant herein, is dismissed on 5th May 2006 for failure to comply with the orders pertaining to service of the writ of summons. 6. Even in the affidavit in support of the chamber summons, the applicant except for alleging that the said flat belongs to his father has not produced any material in support of his contention. Admittedly, the share certificate of the flat has throughout stood and continues to stand in favour of the defendant mother. Except for the applicant, none of the children of the defendant have come forward to claim the suit flat as that of their father. The applicant has, therefore, not made out any case for him being joined as a party defendant to the suit. The applicant is not a necessary party to the suit as claimed by him. 7. Under the circumstances, the applicant’s chamber summons is dismissed with costs. [S.J.KATHAWALLA,J.]