1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.711 OF 2010 IN SUIT NO.95 OF 2009 Murtuza Shaikh Kayamali Pardawala and Ors. .. Plaintiffs Vs. Esufali Gulamhusein Bandukwala Wakf and Ors.. .. Defendants Mr.R.S.Desai i/b Mr.Kunal Bhanage for the plaintiffs Mr.M.S.Bhandari i/b Mr.N.M.Shah for Mahanagar Construction Pvt.Ltd. - (Prop. defendant no.5) Mr.H.Rahman i/b M/s.D.H.Law Associates for the defendant CORAM : S.C.Dharmadhikari, J. DATE : August 30, 2010 P.C. : 1. This Chamber Summons is taken out by the plaintiffs seeking amendment to the plaint. 2. There is no affidavit in reply filed by the original defendants but the proposed defendant no.5 i.e. Mahanagar Construction P.Ltd. have opposed this Chamber Summons. 3. The suit is filed by the plaintiffs for specific performance of an agreement for sale of an immovable property. They are stating that the 2 agreement for sale executed in their favour on 26.7.06 by the original defendants nos.1 to 4 is in respect of the properties at Sankli Street and Bhendi Bazar bearing Cadastral Survey No.3/1764 of Byculla Division and 2nd property bearing Cadastral Survey No.4310 and 4311 of Bhuleshwar Division. 4. It is stated that during the pendency of the suit, the plaintiffs became aware of an agreement for sale dt.6.9.08 whereunder the defendant nos.1 to 4 sold one of the properties covered by the suit to defendant no.5. It is in such circumstances that for bringing this subsequent development on record and for an effective, adjudication of the controversy and a proper decree that they desire to implead defendant no.5 and bring on record the agreement between defendant nos. 1 to 4 and 5 with all details. The Chamber Summons is not opposed by defendant nos.1 to 4 though they are duly served. Defendant nos.1 to 4 have not filed any affidavit in reply. They orally opposed his Chamber Summons. 5. The case of the defendant no.5 is that the agreement dt.26.7.06 (suit agreement) describes properties as C.S.No.3/1064 of Byculla Division and C.S.No4310 and 4311 of Bhuleshwar Division and C.S.No.3/1764 is not the property belonging to the defendant and on the basis of the description of C.S.No.3/1764 in the agreement dt.26.7.06 that the plaintiffs are claiming reliefs. 3 6. In other words, the agreement between defendant no.1 to 4 and defendant no.5 relates to a distinct property and it is the plaintiffs who are erroneously claiming the benefits of the description and the recitals in the agreement. For all these reasons and when the proposed defendant is a stranger to the plaintiff and defendant nos.1 to 4, their joinder is not required in law either as a necessary or proper party. 7. I have perused the Chamber Summons and the affidavit in support, so also the reply. I have perused the annexures thereof. As far as the suit agreement goes therein, the plaintiffs are stated to have executed an agreement for sale with defendant nos.1 to 4 who are described as vendors and it is stated that the vendors shall sell, transfer, assign and convey and the plaintiffs as purchaser shall purchase property situated at Sankli Street bearing C.S.No.3/1764 of Byculla Division and C.S.Nos. 4310 and 4311 of Bhuleshwar Division. The recitals at page 30 are on identical lines. Further, there is a description of the property in the first schedule. 8. The case now set up by the respondent is that the agreement is purportedly with regartd to C.S.No.3/1764 and no reliefs can be claimed in respect of C.S.N.3/1764. All the statements in the affidavit in reply essentially projects the case of the proposed defendant having rights in a distinct property. If there is no affidavit in reply filed on behalf of defendant nos.1 to 4 who are the common vendors then, at this stage, it 4 cannot be presumed that the properties under the two agreements are not the same. The Divisions are described and they appear to be common. Whether there is an error in the survey numbers or not is an issue, to be decided at the trial. Both the plaintiffs and proposed defendant claim through these common vendors. 9. Defendant nos.1 to 4 are not disowning the recitals in the agreement dated 26.7.06, which is a prior agreement. In such circumstances, and when the court is of the view that there should be a complete and effective decree, so also for properly resolving the controversy, the presence of defendant no.4, at least as proper party would be of assistance, then, this Chamber Summons can be made absolute reserving all rights and contentions of the parties. Further, the joiner obviates multiple trials and proceedings, which is also one of the objects of allowing amendment to pleadings. By the joinder, the court has not pronounced upon the correctness of the recitals in either of these agreement nor has disbelieved the version of both the plaintiff and defendants. In such circumstances, keeping open all pleas in that behalf Chamber Summons is made absolute in terms of prayer clause (a). 10. Liberty to apply for interim reliefs after amendment. ( S.C.Dharmadhikari, J. )