1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3969 OF 2009 IN SUIT NO.941 OF 2007 Noorjahan Saeed Dawood through her C.A. ) Rafik Abubaker Memon )..Plaintiff Vs. Sajid Yakub Kantharia & Ors. )..Defendants And Court Receiver, High Court, Bombay )..Respondents And Abdul Samad Haji Adam Kantharia )..Applicant. ---- Mr.Vishal Kanade i/by Nigandhi Shah & Himayatullan for the applicant/third party applicant. Mr.Jitendra Ranawat i/by Banatwala & Co. for plaintiffs. ---- Coram : R.S.MOHITE,J Date : 16th June, 2010 PC 1 I have heard the parties at length and perused the record. I find that prayer clause-(d) in the plaint seeks partition of the suit property as described in Exhibit-C by metes and bound. The said prayer is in the following terms :- 2 “ That this Hon’ble Court be pleased to direct the Defendant No1 to partition and/or divide the suit properties and the joint family business mentioned in the Exhibit C to the Plaint by metes and bound and render the last 3 years true, correct and faithful account in respect of the joint family business and income from the suit properties and hand over the share of the Plaintiff.” 2 On perusing Exhibit-C, I find that item 2 in Exhibit-C is a property which is described as follows :- “All the piece and parcel of the land alongwith the structures standing thereon, property bearing Survey No.18, Hissa No.2 (part), admeasuring 6209 sq. yards, CTS No.2, 2/1 to 2.25 and Survey No.18, Hissa No.2(part) admeasuring 1627 sq. yards and also admeasuring 3200 sq. yards and property bearing Survey No. 18, Hissa No.2 (part), admeasuring 968 sq. yards, C.T.S.No.2 (part) situated at village-Kurla, Taluka-Kurla, Kurla Andheri Road, Jarimari, BSD, Bandra Mumbai.” I also find from the record that on an application made on behalf of the plaintiff, this Court has appointed a Court Receiver on properties as described in Exhibit-G to the plaint. Item B(1) of Exhibit-G is a property described as under :- “(B) (1) One third undivided share in the properties bearing Survey No.18, Hissa No.2 and C.T.S.No.2, 2/1 to 2/25 admeasuring 11,189 sq. mtrs which is partly open and partly constructed shed for buffalos stable and dairy business situated at Jari Mari, Kurla Village, Taluka-Kurla, M.S.D.” 3 It is a common ground that in so far as present applicant is concerned, he has a share in property described at item-2 in Exhibit-C. In my view, once 3 the plaintiff seeks partition by metes and bound in respect of any property the co-owner of the property is the necessary party to the suit. The applicant admittedly being a co-owner in respect of the property described in item-2 of Exhibit-C, in my view, he is a necessary party as the prayer of the plaintiff cannot be granted, in his absence. 4 It is contended that the very same applicant had preferred a Chamber summons for being added as a defendant. That Chamber summons was disposed off by the order of this Court on 30.9.2009. From the order passed in that Chamber summons, it is seen that the plaintiff contended that the applicant was not a necessary party. Counsel appearing on his behalf stated that the plaintiff will not contend that any order passed in the suit, interim or final, would affect the rights, if any, of the applicant in the suit property. He further stated that the plaintiff would not contend before any other authority as against the applicant based only on such orders. These statements were accepted and in view of the acceptance of such statements, Court concluded that it was not necessary to implead the applicant as a defendant. It appears that it was not pointed out to the Court that one of the property was of the joint ownership of the applicant. The question as to whether the applicant would be a necessary party to the plaintiff’s suit in view of the prayer of partition by metes and bound was not considered by the Court since it appears 4 that this aspect was not specifically pointed out. In such circumstances, not- with-standing the order passed in the Chamber summons in exercise of powers under Order-1 Rule 10(2), I am inclined to direct the plaintiff to add the present applicant as a party defendant to the suit. Amendment in this regard will be carried out within a period of four weeks from today. 5 Advocate for the applicant states that in view of the fact that he has been directed to be added as a party in the suit, he will not press the Notice of Motion. Notice of Motion is dismissed as not pressed. The applicant will be at liberty to take out motion for such other reliefs if he so desires. SUIT NO.941 OF 2007 1 In view of the reasoned order passed by me in Notice of Motion No. 3969/2009 the plaintiff is directed to add the applicant as a defendant no.6 in the suit. Amendment to be carried out within a period of four weeks. On being added, defendant no.6 to file his written statement within 8 weeks. Place the suit for direction after 8 weeks. Certified copy expedited. (R.S.MOHITE,J) 5 6