CHS1474-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1474 OF 2009 IN SUIT NO.2010 OF 2009 M/s.Grace United Property Development Pvt.Ltd. .. Plaintiffs Versus M.N.Rajendrakumar & Ors. .. Defendants and M/s.Kazi & Kazi .. Applicants Ms.Amin Wandrewala i/b. Vinod Mistry & Co. for applicant Mr.Arif Bookwala, Senior Advocate i/b. Kunduru & Kunduru for plaintiffs Mr.Clive D’Souza i/b. RKM Legal Services for defendant No.6 Mr.J.G.Reddy for defendant No.5 Mr.G.C.Singh for defendant Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. DATE : 29th November 2010. P.C.: 1] This chamber summons is for joining the applicant as party defendant to the suit. CHS1474-09 2 2] In the affidavit in support of the summons, the applicant has stated that the applicant is a partnership firm carrying on business, inter alia as builder and developer. 3] It is stated that the suit property is identical to the one covered by the suit No.1621 of 2006. Suit No.1621 of 2006 is a suit filed by the applicant and which is stated to be pending in this Court. The applicant, by Suit No.1621 of 2006 has inter alia claimed specific performance and that suit is filed on 3rd May 2006. 4] It is stated that the applicant has moved an application for amendment of plaint in Suit No.1621 of 2006 being Chamber Summons No.1543 of 2007 and that chamber summons is allowed. Therefore, the plaintiff in this suit has been impleaded by the applicant in its Suit as defendant No.11. 5] It is stated that very same property is claimed by the present plaintiff and being aware of the fact that the applicant's suit is prior in CHS1474-09 3 point of time, it is pending and the applicant has already impleaded plaintiff as party defendant No.11, the plaintiffs could not have filed a suit without impleading applicant as party defendant to their suit. It is stated that the applicant challenges a conveyance of the property and that conveyance is stated to be between defendant No.1 and defendant No.2. It is stated that in such circumstances, when identical property is involved in both the suits and when the plaintiff in this suit is already a party to the applicant's suit, this Court must exercise its discretion and implead the applicant as party defendant. Reliance is placed upon a decision of the Supreme Court in A.I.R. 2005 S.C. 2813 (Kasturi Vs. Iyyamperumal and Ors.) and the observations particularly in para 6 thereof. 6] Further, reliance is also placed upon a decision of the Division Bench (Smt.Aruna Vimalkumar Garg & Anr. Vs. Dani Sadan Cooperative Housing Society and Ors. Appeal No.126 of 2010) of this Court dated 27th September 2010 and particularly the observations with regard to the interest in the property, which would CHS1474-09 4 be affected and the tests in that behalf. 7] Mr.Bookwalla, learned Senior Counsel appearing for original plaintiff opposing this chamber summons has invited my attention to the affidavit filed in reply to the chamber summons and has contended that when the applicant has filed independent suit and that suit is pending and when the applicant has stated that the applicant took steps to consolidate both suits, then, all the more, this chamber summons is not maintainable. Further, plaintiffs have stated that they have become owners of the property on the basis of a registered conveyance some time in 2006. In such circumstances, parties to the documents alone being necessary parties, this Court must proceed to dismiss the chamber summons. 8] Some of the defendants to this suit are supporting plaintiffs in opposing the joinder of applicant. 9] After hearing both sides at some length and in facts peculiar to CHS1474-09 5 this case, I am of the opinion that the chamber summons deserves to be granted. 10] Chamber summons taken out by the applicant for impleading it as defendant is on the strength of the averments, statements in the affidavit in support. It is undisputed that both suits involve the same immovable property. It is further prima facie undisputed that both parties viz., plaintiffs and applicant state to be claiming through certain persons who have stated that one Joseph D'Souza, husband of Jennete D'Souza owned several immovable properties and the said immovable properties are owned by him. In such circumstances, I am of the view that merely because some steps have been tken to consolidate both suits that by itself is no ground to refuse joinder of applicant. The apprehension of the applicant is that the plaintiffs may proceed until such consolidation is granted and in any event despite such consolidation, take steps to have the claim settled so also seek approvals and permissions from the authorities, without knowledge and behind back of the plaintiffs. To my mind, the plaintiffs were CHS1474-09 6 aware of the fact that the applicant's prior suit is pending and involving the same property. Both sides are claiming interest in the same property. In such circumstances, without entering into any larger controversy and in facts peculiar to this case so as to avoid conflicting orders and judgements, it would be proper to implead the applicant as party to the suit. 11] Chamber summons is, therefore, made absolute in terms of prayer clauses (a) and (b). (S.C.DHARMADHIKARI, J)