Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch/Sum. 21/18 in L.C. Suit No.1499/16
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.21 OF 2018
IN
L.C. SUIT NO.1499 OF 2016
1. M/s Narmadadevi Shivpujan Vishwakarma
Aged 45 years, Occ. Business,
2. Mr. Shivpujan Jibod Vishwakarma
Aged 57 years, Occ. Business,
Both having address as Shop No.17,
Vajid Ali Compound, 90 Feet Road,
Tilak Nagar, Sakinaka,
Mumbai – 400 072. Plaintiffs.
V/s.
1. Municipal Corporation of Greater Mumbai,
(through its Municipal Commissioner)
Having office address
MCGM Head office, Mumbai CST,
Mumbai.
2. The Asst. Commissioner, L Ward,
MCGM, Laxmanrao Yadav Market,
S.G. Barve Marg, Kurla (West),
Mumbai – 400 070. Defendants.
And
Alamgir Vajidali Chowdhari
Aged about 40 years, adult, Indian
Inhabitant of Mumbai,
Having address at 19, Vajid Ali
Compound, 90 Feet Road,
Tilak Nagar, Sakinaka,
Mumbai – 400 072. Applicant.
Advocate Mr. Bipin Joshi for Applicant.
Advocate Mr. Rohit Pandey h/f Adv. V.T. Dubey for Plaintiff.
Advocate Mr. Khandagale for Defts./BMC.
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:2: Ch/Sum. 21/18 in L.C. Suit No.1499/16
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 05th JULY, 2018
ORAL ORDER
The applicant has filed present chamber summons for
impleading him as a party. Applicant submits that the plaintiff has filed
the suit challenging the notice under Section 351 of MMC Act issued by
BMC on 22.03.2016 and Order dated 21.06.2016.
2. Applicant submits that he is the owner and landlord of the
suit property and also occupant of adjacent premises. He is affected by
the unauthorized addition, alteration and extension made by the
plaintiff in the suit premises. Earlier plaintiff filed suit against the
defendant bearing Suit No.3562/13, in which the application to
implead as a party of applicant, was rejected, therefore, applicant filed
Writ Petition no.3141/16 before Hon'ble High Court. On 06.04.2016
Hon'ble High Court disposed of the writ petition with terms that
(i) The Corporation will take decision on the
notice issued under Section 351 of the Act on 22.03.2016
and will pass a speaking order and communicate its
decision to the respondent nos. 1 and 2 (i.e. plaintiffs
herein) within four weeks from the date of the order.
(ii) Liberty is reserved with respondent nos. 1 and
2 to challenge the order if it is adverse to them. In the
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:3: Ch/Sum. 21/18 in L.C. Suit No.1499/16
meantime, the Corporation and respondent nos. 1 and 2
shall maintain status quo as regards the suit property.
(iii) In the said writ petition, liberty is reserved to
the present applicant to consider filing an application for
intervention if so advised. All contentions on merits are
expressly kept open.
3. In view of the order in the Writ Petition and being the
owner of the suit premises and plaintiff made allegations in the plaint
against him to rebut the said allegations, applicant prayed that he
pleased be implead as a party/defendant.
4. Notice of the present chamber summons issued to plaintiff.
Plaintiff filed their reply, thereby strongly objected present chamber
summons on the ground that the applicant is not the owner of the suit
premises. The property card / 7 X 12 Extract are enclosed with the
reply, from which it clears that the applicant is not the owner but one
Mr. Mehta is the owner and landlord of the suit premises. Previously
also applicant has filed chamber summons no.2884/13 for joining him
as a defendant, however, the same has been dismissed by judgment and
order dated 27.03.2015 by the City Civil Court, which applicant
challenged before Hon'ble High Court, in which the Hon'ble High Court
only granted liberty to the applicant. Therefore, plaintiff prayed to
reject the chamber summons.
5. Advocate Joshi for the applicant submits that he has
enclosed the Rent Receipt in the name of plaintiff as a tenant and even
in the notice dated 21.06.2016 issued to him as a owner alongwith the
plaintiff, the defendant had issued said notice on the complaint filed by
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:4: Ch/Sum. 21/18 in L.C. Suit No.1499/16
the plaintiff.
6. Per contra the advocate for the plaintiff argued that he is
challenging the notice of demolition issued by BMC, for which presence
of applicant is not required. No relief is sought against the applicant. In
support of their argument, plaintiff relied on the citation of Hon'ble
Apex Court reported in 2017 (6) ALL MR 420 (S.C.) in the case of
Mohammed Hussain Gulam Ali Shariffi V/s Municipal Corporation
of Greater Bombay and Ors, in which it has held that
Necessary Party – Suit filed only against
Municipal Corporation – Applicants claiming to have
purchased suit property from plaintiff, sought to be
added as defendants – Held, for deciding legality of
demolition notice, presence of applicants is not
required – Rights between plaintiff and applicants
regarding suit property can be decided in separate
suit – In instant suit, applicants are neither necessary
nor proper parties.
7. After perusal of chamber summons, reply and documents
enclosed with chamber summons it seems that in the Revenue Record
there is entry in the name of Harilal Bhagwanji Mehta and one Doshi. It
is admitted fact that the notice issued on the complaint of applicant.
The BMC also issued impugned notice to the applicant as a owner. The
applicant enclosed xerox copy of the Rent Receipt. Merely, one rent
receipt of year 2016 is enclosed with Chamber summons and in the
impugned order the name of the applicant is mentioned as a owner, it
doesn't prove the title of the applicant in the suit premises.
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8. After perusal of order of Hon'ble High Court dated
06.04.2016 in Writ Petn. No.3141/16 the Hon'ble High Court has only
granted liberty to the petitioner to consider filing an application for
intervention. In the said order Hon'ble High Court has not decided that
the applicant is the necessary party in that suit. Merely granting the
liberty to file an application of intervention doesn't mean that the
Hon'ble High Court decided that the applicant is the landlord of the said
property. The plaintiff has rightly relied on the above citation of the
Apex Court. In the present case, the plaintiff has not claimed any relief
against the applicant. Even the applicant is failed to file document i.e.
Property Card / 7 X 12 Extract, Agreement or Tax assessment bill of the
suit property on record, to show that he is the landlord of the suit
property. Applicant is failed to show how he is necessary and proper
party as per the Order I, Rule 10 of CPC. Hence, I pass following order :
ORDER
Ch/Sum No. 21/18 stands rejected and accordingly disposed of.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 05/07/2018.
Dictated on : 05/07/2018
Transcribed on : 06/07/2018
Signed on : 07/07/2018
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:6: Ch/Sum. 21/18 in L.C. Suit No.1499/16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09/07/2018 At 1.05 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
05/07/2018
Judgment/Order signed by P.O. on 07/07/2018
Judgment/Order uploaded on 09/07/2018
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