Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No.06/2019 in
L.C. Suit No. 334/2018
MHCC010000522019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 06 OF 2019.
IN
L.C. SUIT NO. 334 OF 2018.
Ankur Maternity and Surgical Nursing Home....... … PLAINTIFF.
V/s.
M.C.G.M……………………………………….….....
…
DEFENDANT
.
Shree Vijay Kunj Co-op. Housing Society Ltd........ … APPLICANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 04th April, 2022.
APPEARANCES :
Mr. Jitendra Tiwari, Ld. Advocate for the Plaintiff.
Mr. C.P. Deogirikar, Ld. Advocate for the Applicant.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant.
*****
01. The applicant Shree Vijay Kunj Co-op. Housing Society Ltd.
has taken out this Chamber Summons (for short ‘Ch/s.’), for his joining
as 'defendant' to this suit. Perused the Ch/s., accompanying affidavit of
Mr. Rajaram T. Ghandade, Member of the Managing Committee of this
applicant, and say of the plaintiff. Heard both the sides.
02. Considering the record, the points for determination, along-
with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether presence the applicant Society
is necessary in order to enable this
Court effectually and completely to
adjudicate upon and settle all the
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.2. CH/S No.06/2019 in
L.C. Suit No. 334/2018
questions involved in the suit ?……...... … No.
(ii). What Order ? .............…....................... …. As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO. 1 :
03. By filing this Ch/s., the applicant’s only worry is to bring on
record that initially, in view of L.C. Suit No.1434/2006, the decree was
passed on 24.12.2011 and Execution Application No. 869/2013, arising
therefrom is pending before the concerned Court. Further, in view of the
said decree, this plaintiff was directed to remove encroachment carried
and structural alterations made by him in the suit premises. Moreover,
the M.C.G.M. was entrusted with the work to remove the encroachment
and structural alteration carried by the plaintiff. However, by filing this
suit, the plaintiff is trying to avoid execution of the said decree. Hence,
the applicant is required to be added as party defendant in this suit. The
applicant further submitted that once the decree has been passed in the
above referred suit, there is no question of regularization in the M.R.T.P.
Act. There cannot be afresh adjudication of encroachment as well as the
unauthorized structure carried by the plaintiff. The plaintiff denied this
Ch/s. and objected for the applicant's addition as a proper or necessary
party to the suit. He submitted that considering the restricted scope of
this suit, the applicant is not required to be joined as a party defendant.
To support his submissions, he relied upon the cases Uttam R. Gite Vrs.
M.C.G.M. and Another, W.P. No.6122/2013 dtd.17.07.2013, and Sulbha
Devendra Kokate Vrs. Surekha Kokate and the Ors., W.P. No. 1587/2020
dtd. 30.03.2021.
04. Having considered the rival stands, at the outset, it is worth
notable that by filing this suit, the plaintiff’s anxiety is to get the notice
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.3. CH/S No.06/2019 in
L.C. Suit No. 334/2018
dtd. 15.06.2017, issued by the defendant U/s. 53(1) of the M.R.T.P. Act,
and the Order dtd. 27.11.2017, declared as null and void. Moreover, in
para 16 of the plaint, he referred the filing L.C. Suit No.1434/2006 and
passing of the decree therein on 24.12.2011. He further submitted that
in view of this decree, the present defendant was directed to verify the
alleged encroachment as well as structural changes and directed to take
action, if necessary, as per law. However, now, the defendant issued the
suit notice, without following the law and going through its record. The
said notice and the consequential Order are, therefore, bad in law. As
per the plaintiff, without verifying the record and the factual position of
the suit premises, the defendant passed the said Order dtd. 27.11.2017.
He further denied to have done anything without permission as needed
by the said Act. This is the only issue before this Court.
05. At this juncture, it is worth to mention that the copy of the
judgment, passed in L.C. No. 1434/2006 is placed on record. Perusal of
the Operative part thereof, shows that in view of Clause (4), defendant
No. 3 M.C.G.M. therein was directed to verify the alleged encroachment
as well as structural changes and directed to take action, if necessary, as
per law. Meaning thereby, before removing the alleged encroachment
duty was cast upon the M.C.G.M. to verify the same and to take action,
if necessary, as per law. On this background, now, it appears that this
defendant M.C.G.M. issued the notice to the plaintiff on 15.06.2017 and
passed the final Order dtd. 27.11.2017, in compliance with the above -
referred directions of the Court, which is assailed in the suit. Now, by
filing this Ch/s., the only worry of the applicant is to bring on record
that in the judgment, there was directions to remove the encroachment
and the plaintiff is avoiding the same. Simultaneously, by filing this suit,
he is avoiding execution of this decree. However, considering the above
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.4. CH/S No.06/2019 in
L.C. Suit No. 334/2018
position of record, there seems no substance in such contentions of the
applicant. Obviously, in this suit, the plaintiff is not denying the legality
or otherwise of the said decree passed in the L.C. Suit No. 1434/2006.
In the circumstances, I am of the opinion that taking into account the
limited scope of this suit, presence of the applicant is not required for
the effectual adjudication of the suit issues. He is neither necessary nor
proper party to this suit and the suit can be decided even in his absence.
If said differently, in my considered opinion, to decide this suit, the only
necessary and proper party required is the defendant MCGM, who had
issued the suit notice. It is the settled principle of law that the plaintiff
being a '
dominus-litis' of the suit can't be forced to add any person as
party to his suit, unless it is held keeping in view the pleadings and the
relief claimed therein that the person sought to be added as party is the
necessary party and without his presence neither the suit can proceed
and nor the relief can be granted. It is only then such person can be
allowed to become party, else the suit will have to be dismissed for non-
impleadment of such necessary party. However, this is not the position
in this matter. I have gone through the ratios laid by Hon’ble High Court
in the cases relied upon by the plaintiff. I am in respectful agreement
with the same. Therefore, I answered point No.1 in the negative and in
answer to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 06/2019 stands dismissed.
(ii). Chamber Summons No. 06/2019, accordingly,
stands disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 04.04.2022. City Civil Court, Mumbai.
Dictated on : 04.04.2022.
Transcribed on : 05.04.2022.
Signed on : 06.04.2022.
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.5. CH/S No.06/2019 in
L.C. Suit No. 334/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On 06.04.2022 at 1.30 p.m. Mrs. S.R.Mejari
UPLOADED DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.) H.H.J. A.G. Santani
C.R. No.11
Date of Pronouncement of
Judgment/Order
04.04.2022.
Judgment /Order signed by P.O. on 06.04.2022.
Judgment/Order uploaded on 06.04.2022.
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