: 1 : chs-1348-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1348 OF 2010 IN SUIT NO. 1058 OF 2004 Luke Gomes & Ors. .. Plaintiffs v/s. Mr. Rehmatullah Nasibdar Kazi & Ors. .. Defendants and M/s. Indrajit Properties Pvt. Ltd. .. Respondent ......... None for the plaintiffs Mr. Jayesh Bhatt for applicant / defendant no.4 Mr. Shailesh Shah i/b Maravoor Wamorkar & Co. for defendant nos. 2 and 3. ......... CORAM : R.Y.GANOO, J. DATE : 25th JANUARY, 2011 P.C. : 1. Heard learned Counsel on both sides. The plaintiffs have filed this suit for declaration that plaintiffs and defendant no.4 are the owners of the land and for consequential reliefs. This chamber summons has been taken out by defendant no.4 with a prayer that the present respondent M/s. Indrajit Property Pvt. Ltd. be joined as defendant no.5 and consequential amendments may be made for the purposes of challenging agreement dated 3rd March, 1993 executed by defendant no.2 in favour of defendant no.3 and another agreement dated 22nd : 2 : chs-1348-10=.sxw January, 1996 between defendant no.2 and alleged conveyance dated 21st July, 2004 executed by defendant no.3 in favour of the respondents. 2. At the outset, it is required to be mentioned that this chamber summons is taken out by defendant no.4. Learned Counsel for the defendant no.4 submitted that provisions of Order I Rule 10 of C.P.C. confer wide power on the Court to join a particular party though such an application is not made by the plaintiffs. He had also relied upon judgments in the case of (i) Amit Kumar Shaw and Anr. Vs. Farida Khatoon and Anr., AIR 2005, SC 2209 and (ii) Kundalik Hindurao Patil Vs. Gunda Hari Khot, since deceased by L.Rs & Ors. 2009(3) Bom. C.R. 494. 3. Learned Counsel for defendant no.4 submitted that plaintiffs have not taken out proceeding to challenge the transaction between defendant no.3 and respondents. According to him interest of defendant no.4 is vitally affected as suit is filed to claim reliefs for the benefit of plaintiffs and defendant no.4. Learned Counsel for defendant no.4 submitted that the transfer in favour of the present respondents is fraudulent and, therefore, the same is required to be challenged and that defendant no.4 has taken out this chamber summons. 4. Learned Counsel for the defendant nos. 2 and 3 and the : 3 : chs-1348-10=.sxw respondents opposed the chamber summons on the ground that the same is not maintainable. He also submitted that provisions of Order I Rule 10 of CPC cannot be used in this case. He also submitted that cause of action viz. Challenging validity of transaction between defendant no.3 and respondent has now become time barred and hence it should not be granted as it would cause prejudice to defendant nos. 2 and 3 and respondents. 5. After having considered the rival contentions and the judgments cited across the bar, I am inclined to dismiss the chamber summons. Even if it is accepted for a moment that provisions of Order I Rule 10 permit the Court to pass an order directing that a particular person be joined as defendant, in so far as this case is concerned mere joining of the present respondent as a party defendants would not be sufficient because the defendant no.4 has submitted that transaction between defendant no.3 and respondents is illegal and needs to be challenged. To challenge said transaction there ought to be appropriate averments in the plaint. Appropriate prayers will have to be added to seek relief against respondents. Surely, this type of situation is not contemplated in Order I Rule 10 of CPC. As to what averments should be found in the plaint is to be determined by the plaintiffs and it is a prerogative of the plaintiffs. The Court cannot thrust upon the plaintiffs certain things. It : 4 : chs-1348-10=.sxw is not as if that the transaction of sale by defendant no.3 in favour of respondent no.4 is not known to plaintiffs. If the plaintiffs do not wish to challenge the agreement between the defendant no.3 and the respondents, the Court cannot compel them to do so. 6. It is pertinent to note that plaintiffs have not filed any affidavit opposing the chamber summons. Learned Counsel for defendant no.4 contended that non filing of such affidavit opposing the chamber summons should be treated as a consent. This contention cannot be accepted in the facts and circumstances of this case. Merely because this chamber summons is not opposed by plaintiffs, it cannot be granted. The Court is obliged to consider the merits of chamber summons. This chamber summons cannot be granted for the reasons mentioned above. 7. If at all defendant no.4 feels that his rights are required to be protected, it will be open for defendant no.4 to adopt appropriate proceedings to protect his rights. 8. For the reasons mentioned aforesaid, the chamber summons is required to be dismissed. Hence, following order is passed to dispose of the chamber summons. : 5 : chs-1348-10=.sxw ORDER (i) Chamber summons is dismissed. There shall be no order as to costs. (ii) It is clarified that the Court has not expressed any views about the transaction between defendant no.3 and respondents. (R.Y.GANOO, J.)