1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 370 OF 2008 IN SUIT NO.2043 OF 2005. Aruna A Dholakia : Plaintiff. Versus Darshak Hari Prasad Dholakia & ors. : Defendants. And Avni Co-op. Housing Society Ltd. : Applicant. Mr.Birendra Saraf with Mr.Prakash Shah i/by Prakash & Co. for the Plaintiff. Mr.P.G.Vora i/by P.G.Vora & Co. for the Applicant. CORAM : R.M.SAVANT, J DATED : DECEMBER 16, 2008 P.C. 1. By the above Chamber Summons the Applicant – Avni Co- operative Housing Society seeks the following relief :- (a) That the Plaintiff be directed to amend 2 the Plaint and incorporate the name of the Applicant above named as part Defendant No.5 to the Plaint as mentioned in schedule and proceedings and the Plaintiff be further directed to serve the papers and proceedings in the above Plaint upon the Applicant, subsequent to her being joined as party Defendant No.5 to the Suit. 2. The above Suit has been filed by the Plaintiff inter alia for a declaration that the Plaintiff is the owner of the suit premises described in Exhibit A to the Plaint and, that it be declared that the Agreement for Sale dated 10th March 2004 between the Plaintiff and Defendant No.4 has been validly avoided/terminated by the Plaintiff. 3. The Agreement for Sale dated 10th March 2004, of which the declaration is sought, is in respect of Flat No.403, B-Wing, in the building of the Applicant-Society. In the above Suit, by an order dated 28th March 2007, a Receiver of this Court was appointed as Receiver of the suit flat by consent of the parties to the Suit. The Defendant No.4 was in possession when the order appointing the Court Receiver came to be passed. Thereafter by a further order dated 25th July 3 2007, the Court Receiver was directed to take possession of the flat in question and the Court Receiver was further directed to appoint an agent to occupy the said flat on the usual terms and conditions. Liberty was granted to the Defendants and the third party to bid for the agency. 4. Pursuant to the said order dated 25th July 2007, the Court Receiver, by issuing an advertisement in the local newspapers, invited bids for appointed as an agent of the Court Receiver. In the said advertisement it was mentioned that the bids were invited for the flat and the terrace. It is on seeing the said advertisement that the Applicant has filed the instant Chamber Summons contending that the terrace, being a common amenity, the Plaintiff could not lay claim over the terrace and, therefore, the Court Receiver, whilst inviting the bids for appointing an agent, could not include the terrace. 5. On behalf of the Applicant, reliance is sought to be placed on the order passed by Justice D.K.Deshmukh dated 28th March 4 2007 and on the order passed by Justice S.J.Vazifdar dated 25th July 2007. Relying on the said orders it is contended that what is covered by the said orders is the flat and not the terrace. It is further sought to be contended on behalf of the Applicant that the Agreement, entered into by the Plaintiff with the builder for purchase of the said flat, does not mention the terrace. It is, therefore, contended that since Plaintiff is wrongly claiming a right over the terrace which actually belongs to the Applicant-Society, and, therefore, the Applicant is a necessary party to the suit and is required to be impleaded. 6. On behalf of the Plaintiff, the above Chamber Summons is opposed by contending that what was conveyed by the Agreement dated 1st August 1996 entered into with the builder, was both the flat and the terrace. The Plaintiff relies upon the plan annexed to the Agreement which is signed by the builder. It is the case of the Plaintiff that the Plaintiff has paid both for the flat and the terrace and since the year 1996 the Plaintiff is in possession of both the flat and the terrace. It is further contended on behalf of the Plaintiff that in so far as the reliefs claimed in the Suit are concerned, the Applicant has no 5 locus standi as any finding recorded in the said Suit could not bind the Applicant. It is further contended that the Applicant can agitate its grievance as regards its alleged rights over the terrace by filing separate proceedings under Section 91 of the Maharashtra Co- operative Societies Act or by filing an independent suit claiming title to the terrace. 7. On behalf of the Applicant, reliance is sought to be placed on the following Judgments. 1] In the matter of Razia Begum v. Sahebzadi Anwar Begum and ors (AIR 1958 SC 886); 2] In the matter of Narayan Rao Swami Rao Kulkarni and anr. v. Bheema Rao Swami Rao Kulkarni and anr. (AIR 1979 Karnataka 33); 3] In the matter of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and ors. [ (1992) 2 SCC 524]; 6 4] In the matter of Raj Singh v. Ram Nivas and anr. (AIR 1977 Allahabad 104); 5] In the matter of Sampatbai w/o Ambaram and anr. v. Madhusingh Gambhirji (AIR 1960 Madhya Pradesh 84). It has been laid down in the above Judgments that a person seeking his addition as a party should have a direct interest as distinguished from a commercial interest, in the subject matter of the litigation. It has been further laid down that by adding that party, the Court would be in a better position to effectually and completely adjudicate upon the controversy. 8. It is contended that since the Applicant has a direct interest in the terrace in question, this Court should exercise its discretion in favour of the Applicant and allow it to be impleaded or issue direction for impleading it as a party to the proceedings. 9. The Judgements cited (supra) lay down a well settled proposition of law, in the matter of impleadment of a party. The question is, whether the Applicant is a proper or a necessary party in 7 the context of the reliefs claimed in the suit. As mentioned earlier in this Order, the Plaintiff is seeking a declaration as regards the title to the suit flat and also as regards the termination of the agreement. The Applicant, as indicated earlier, seeks its impleadment, as according to it, the Plaintiff does not have a right over the terrace and, in fact, the terrace belongs to the society. Therefore there are competing claims as regards the terrace. In my view, the reliefs sought by the Applicant as regards its right over the terrace cannot be agitated by the Applicant in the suit filed by the Plaintiff in respect of a lis between the Plaintiff and the Defendant No.4. The Applicant, if it has to assert its right as regards the terrace, has to either invoke the machinery provided by the Maharashtra Co-operative Societies Act by filing a dispute or to file an independent suit claiming title to the terrace in question. 10. As laid down in the Judgments cited (Supra), the test for impleading a party is, whether the presence of a party is necessary for effectual and complete adjudication of the controversy involved. Considering the reliefs sought in the Plaint, in my view, the Applicant 8 is neither a proper party nor a necessary party whose presence is required for adjudication of the Suit. In the event, the Applicant is impleaded, it would, in my view, unnecessarily enlarge the scope of the dispute in the Suit as the Applicant is laying a claim to the terrace in the suit filed by the Plaintiff. In that view of the matter, no relief can be granted in the above Chamber Summons. The Chamber Summons is accordingly rejected. However, it would be open for the Applicant to adopt such proceedings as are permissible in law to assert its rights, if any, to the terrace in question. [R.M.SAVANT, J]