Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summons No.34 of 2019
CNR: MHCC010002572019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.34 OF 2019
IN
L.C.SUIT NO.187 OF 2019
Sohrab Turab Khan .. Plaintiff
V/s.
1. Municipal Corporation of Greater
Mumbai & Anr. .. Defendant
And
M/s. Chaudhary Infra Real Estate &
Developers Pvt. Ltd. .. Intervener
Appearance:
Adv. Asad Bukhari @ Adv. Bhatia for plaintiff.
Adv. Smt. Vidya Vyavahare for MCGM/Defendants.
Adv Shishir Joshi I/b Adv. Choksi for applicant/intervener.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 06/10/2022
ORDER
1 The applicant/ intervener has taken out this chamber
summons in this suit for directing the plaintiff to implead it as
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party defendant and for not protecting unauthorised construction
made by plaintiff as reflected in show cause notice dt.13/10/2018
and order dt.21/12/2018 passed by the defendant. The chamber
summons is strongly opposed by the plaintiff by filing reply.
2 Perused the chamber summons, affidavit in support of
the same, the documents produced alongwith the chamber
summons, the reply filed by plaintiff alongwith documents and the
authorities cited by the respective advocates for applicant and
plaintiff.
3 Heard learned advocate for applicant, learned advocate
for plaintiff and defendant respectively.
4 It is pertinent to note that prayer clause(b) of this
Chamber Summons relates to the relief regarding protection of
unauthorised construction which is the subject matter of notice of
motion No.309 of 2019. Therefore, said issue regarding grant or
refusal to grant said protection has not been decided in this
Chamber Summons.
5 As it transpires from the Chamber Summons, it is the
contention of applicant that applicant is a company duly registered
under the Indian Companies Act 1956 and is lessee/owner of plot
and building thereon in question under registered Deed of
Assignment dt.5/8/2013. The applicant is acquiring
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leasehold/ownership rights of plot and building thereon in view of
said registered Deed of Assignment and also got direct and
substantive interest in the same. They are affected by any
unauthorised or illegal construction and therefore, they have filed
complaint with the defendant/corporation i.e. planning authority
to curb out the unauthorised legal construction over the
leasehold/ownership portion of themselves. The plot and building
having notice structure in dispute in the present matter is owned
as per the leasehold rights by the present applicant and therefore,
pursuant to his complaint, the impugned show cause notice
dt.13/10/2018 was issued to the plaintiff by the defendant. The
impugned order dt.21/12/2018 is based on said impugned notice.
The plaintiff while making disputed construction has neither
obtained consent from them nor obtained valid approval/
permission of planning authority. They have not only enclosed the
common passage on the 2nd floor of the building but has also put
up unauthorised loft of iron bars in Room No.41 illegally and has
also closed window of Room No.51 opening in the common
passage of the 2nd Floor. The plaintiff has illegally put up a kitchen
in the common passage of 2nd Floor by enclosing the same and
made a window by removing certain part of Mangalore tile roof
without consent or approval from plot owner as well as planning
authority. The plaintiff is duty bound to produce the documents
showing/disclosing the legitimacy of structure. However, the
same has not been done by them. The construction is illegal and
unauthorised. The applicant is in a position to disclose everything
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about the notice structure. the plaintiff has made false and
misleading averments in the suit plaint in order to secure
protection to the unauthorised construction and come with
unclean hands. The applicant holds interest in the suit premises
and notice structure. Their rights will be affected badly, if they are
not allowed to participate in the suit proceedings. Being the owner
having interest in the suit premises, they are necessary and proper
party to the present suit. Hence, the applicant prayed for their
impleadment in the suit by making Chamber Summons absolute.
6 While supporting own submission, the Advocate for
applicant placed reliance on the authority in the case of Nimesh J.
Patel V/s. Municipal Corporation of Gr. Mumbai, 2021 DGLS
(Bom.)2268 in which Hon'ble Bombay High Court distinguishing
the ratio and features as well as findings in the case of Mohamed
Hussain Gulam Ali Shariffi v/s. Municipal Corporation of Gr.
Bombay and Ors. 2017(1) DGLS(SC)1396, has held that the
impleadment of owner of the house having interest in the notice
structure is justified.
7 Similarly, the Advocate for applicant placed reliance on
the authority in the case of M/s. Dunhill Doma Coop Hsg So.
Ltd. V/s. Manuel Mergulhao and Others in W.P(Stamp) No.
93200 of 2020. In this authority it is held that the society owning
the premises in which unauthorized construction was made for
which a notice under section 351 of MMC Act was issued, was
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vitally affected and ought to be joined. Therefore, on the basis of
said findings the applicant in said matter was allowed to be
impleaded in said suit distinguishing the findings in Mohamed
Hussain Gulam Ali Shariffi V/s. Municipal Corporation of Gr.
Bombay and others . It is further held in the said authority that in
the case of Mohd. Hussain the impleadment was sought simply on
the basis that the suit property was subject matter of agreement
for sale in between an existing party to the suit and the intervenor,
specific performance of which was sought separately by the third
party intervenor. Therefore, the impleadment was not allowed. But
in the case in hand the petitioner society is the owner of the whole
structure including the stilt portion, which is claimed to have been
unauthorized by enclosed by the plaintiff. The applicant is vitally
interested in protecting its property. Therefore, the applicant is
necessary to be joined as a party defendant to the suit.
8 The advocate for applicant has further placed reliance
on the authority in the case of Arun R. Singh & Anr. V/s.
Municipal Corporation of Gr. Mumbai and Ors., 2018
DGLS(Bom.)2132 in which again the authority in the case of
Mohamed Hussain Gulam Ali Shariffi has been relied
upon/referred and distinguished from the facts and circumstances
of said case. It has been held therein that the applicant is the
owner of the building having notice structure and in the event of
building being demolished, the right, title and interest of the
landlord would directly be affected, the landlord would be a
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proper party though no relief has been sought for against the
landlord.
9 Relying upon said authorities the advocate for the
applicant made submissions that for the reasons stated in the
above authorities, the ratio in the case of Mohamed Hussain
Gulam Ali Shariffi’s case cannot be made applicable to the
present case . Being owner having leasehold ownership rights of
the suit premises, applicant is vitally interested in protecting the
property, hence, they may be added as party defendant to the suit.
10 It is pertinent to note that against the order refusing
adinterim protection to the notice structure, the plaintiff preferred
appeal before Hon'ble High Court vide Appeal from Order No.603
of 2022 and in said appeal the present applicant moved Civil
Application No.79 of 2022 for their impleadment in said appeal.
Hon'ble High Court had directed the present plaintiff/appellant to
add them in the appeal by way of amending the appeal. Relying
upon the same, the advocate for applicant argued that said appeal
is the continuation of present suit and therefore, the applicant are
entitled to be added in the present suit as party defendant in view
of their impleadment in the above appeal. It is pertinent to note
that in the above appeal, the Hon'ble High Court has directed this
Court to hear and decide the notice of motion of appellant
alongwith the present application/Chamber Summons for
impleadment as expeditiously as possible and preferably within a
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period of 12 weeks from the receipt hereof. Hence, in view of said
directions, the Chamber Summons has been heard and now going
to be decided on merit.
11 The plaintiff has filed reply to the present chamber
summons and it is categorically submitted that the applicant is
neither necessary nor proper party to the suit and the presence of
the applicant before this court is not necessary in any manner to
decide the issues involved in the present suit. Denying the contents
of Chamber Summons and alleged ownership of applicant, it has
been stated by the plaintiff that the applicant have got no right,
title or interest in the suit property in order to interfere in the
present suit. They have got independent remedy for challenging
the rights regarding ownership. It is specifically stated that the
deed of assignment cannot be treated as deed of conveyance.
Their ownership is not accepted or made known to the plaintiff.
Letter of attornment is also not filed by the applicant. The
ownership rights of present applicant is a subject matter pending
before the Small Causes Court and at present juncture, the
applicant do not hold any right or interest in the suit property.
The defendant in the present matter is very well competent to
defend its own case. Therefore, the applicant is neither necessary
nor proper party to the present suit as prescribed under Order I
Rule 10 of Civil Procedure Code. Their presence in the present
proceedings is totally unwarranted. The plaintiff has not made
any unauthorised construction and they are having sufficient proof
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to establish this fact. The necessary party regarding unauthorised
construction is the planning authority i.e. present defendant and
they are already incorporated as defendant in the present suit. It
is pointed out that the plaintiff has challenged notice under section
351 of MMC Act issued by the defendant MCGM stating that the
same is issued illegally in high handed manner and without any
proper cause. The notice action is challenged by the plaintiff. So
the scope of suit is the illegal nature of notice. Therefore, looking
to the prayer sought in the plaint, the presence of applicant is not
at all necessary before this court for adjudication of the suit. It is
specifically said that they denied that applicant is the landlord and
owner of the suit premises. It is further contended that even, if it is
assumed that the applicant is the landlord of the suit premises,
then also they cannot be held as necessary or proper party to the
suit. Hence, the plaintiff prayed for dismissal of chamber
summons.
12 The learned advocate for plaintiff prayed that the
applicant is not the necessary party to the present suit, hence
chamber summons is liable to be dismissed. In order to
substantiate its submission, the plaintiff has placed reliance on the
following citations and legal provisions:
1 Extract of Section 105A and 105B of Mumbai
Municipal Corporation Act 1888,
2) Mrs. Sulbha Devendra Kokate V/s. Mrs. Surekha
Kokate and Ors. 2021(6)AIR Bom. R 297.
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3) Mr. Ashok Bansidhar Agrawal V/s. The State of
Maharashtra to be served through Govt. Pleader, High
Court, Mumbai and Ors., 2019(5)AIR, Bom. R 332,
4) Mohamed Hussain Gulam Ali Shariffi V/s. Municipal
Corporation and Gr. Bombay and Others, MANU/
SC/1710/2016.
13 Relying upon the ratio cited in all above authorities,
the advocate for plaintiff has prayed for dismissal of the chamber
summons.
14 I have gone through all the authorities cited by
respective parties. In the case of Mohamed Hussain Gulam Ali
Shariffi as cited supra, it is held that the basic question which is
required to be decided in the suit, is whether notice issued under
section 351 of the Act by the respondent Corporation is legally
valid or not. To decide this question, the only necessary and
proper party to the suit is the Mumbai Municipal Corporation, Gr.
Mumbai, who has issued such notice and for deciding this
question either way, the presence of respondent nos. 2 and 3 is not
at all required. In other words, the suit can be decided even in the
absence of respondent nos. 2 and 3 .
15 In the above matter, the respondent nos. 2 and 3 filed
chamber summons seeking permission to implead them as
defendant in the suit. It was alleged that the respondent nos. 2 and
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3 had an interest in the suit house in as much as they claimed to
have ownership rights in the suit house and suit seeking specific
performance of the agreement was pending before the court. In
those circumstances, it was prayed that for proper adjudication for
rights of the parties in relation to the suit house, their
impleadment is necessary. In those circumstances, the court held
that the question to be decided in the disputed suit is the legality
and validity of notice under section 351 of the MMC Act for which
rights of parties need not be adjudicated by the court. With said
findings, the impleadment prayer was rejected.
16 The advocate for applicant has submitted that in the
case of M/s. Dunhill Dome Coop Hsg. Soc. Ltd . as cited supra,
the Hon’ble High Court has distinguished said fact from the facts in
Mohd. Hussain’s Case and arrived at the conclusion that the party
interested in the suit property is the necessary party.
17 I have gone through the contents of the suit plaint and
notice of motion taken out by the plaintiff. It transpires that the
plaintiff has challenged the notice issued by the defendant no.1
MCGM under section 351 of MMC Act with the prayer that the
defendant and their representative and/or any person claiming
through the defendant be restrained by an order of injunction of
this court from in any manner demolishing and pulling down
and/or interfering with and/or initiating any action in respect of
suit premises pursuant to the notice under section 351 of MMC Act
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and also pursuant to the speaking order passed by the defendants.
18 Thus, prayer clause shows that the scope of the suit is
limited as to the validity and legality of notice action proposed by
the defendant MCGM for demolishing the suit structure. The relief
is only against the notice. The same relief do not have direct nexus
with the rights of parties. The advocate for the applicant submitted
that in the case of Mohd. Hussain the rights of parties regarding
suit premises Wakf was subjudice and were not determined.
However, in the present suit applicant's status as landlord is not
under challenge. He is vitally interested in the suit premises. In
said circumstances, in their absence, the matter cannot be
adjudicated upon and effective decree cannot be passed. Further
more it is said that the tenant has no right to enter into his
litigation.
19 As I have stated above, the scope of the suit is the
determination of notice action proposed by the defendant MCGM
against the notice structure allegedly constructed by the plaintiff.
Said nature of the suit is totally different from the nature of the
suit dealing with rights of parties to the suit structure. The court
has to decide whether, the structure is constructed without
following the sanction plan or without permission of defendant.
For said purpose the ownership of party cannot be a vital question.
Furthermore, in the present suit also, the plaintiff has challenged
the ownership of the present applicant over the suit premises and
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12 Chamber Summons No.34 of 2019
the applicant also placed various documents on record showing
and justifying their ownership title over the suit premises. Said
documents includes the copy of index II showing the name of
applicant as the executant of deed/agreement to assignment.
Undoubtedly, said document is based on registered agreement of
assignment. However, I have also gone through the pleadings of
the plaintiff made in the Civil Application before Hon'ble High
Court while opposing the impleadment of applicant in the appeal.
In said submission, the plaintiff has disclosed that the question of
ownership of the applicant is still a question to be adjudicated
before Small Causes Court in RAE Suit No.773 of 2019 filed by the
third party against the appellant and therefore, until and unless
the status of intervener/applicant is determined, they are not
entitled to become party in the proceedings. I have also gone
through the order of Hon'ble High Court dt.29/7/2022 in Appeal
from Order No.603 of 2022 for speaking to the minutes of order
dt.26/7/2022. In said order also while adding that the C.A. No.79
of 2022 is allowed and appeal is amended Hon'ble High Court has
directed this Court while disposing the appeal to hear and decide
the notice of motion alongwith the Chamber Summons No.34 of
2019 for impleadment as expeditiously as possible and preferably
within the period of 12 weeks from the receipt hereof. It is very
well evident that Hon'ble High Court has directed this Court to
decide the Chamber Summons on merit and therefore, the
contents of the reply to the Civil Application and the reply to the
present Chamber Summons of plaintiff are considered. It
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transpires that the ownership of present applicant is sub judice
before the Small causes Court in RAE Suit No.773 of 2019. As
such, it is very evident that the ownership of present applicant
and its right, title and interest in the notice structure is yet to be
decided on merit by the appropriate/competent Court. The
ownership rights and interest of the applicant as well as the
plaintiff in the suit premises or notice structure is and cannot be
the subject matter of the present suit. Unless the interest of
applicant is decided by the competent Court, this Court cannot
directly hold or presume that by not adding the applicant as party
defendant in the suit, their right and interest in the notice
structure would be badly affected.
20 Above all it transpires from the contents of chamber
summons that the applicant also alleged about the additions and
alterations allegedly made by the plaintiff in the suit premises
justifying the issuance of notice under section 351 of MMC Act
against the plaintiff. Obviously the defendant/MCGM, who has
issued notice, also come up with the same contentions. In the said
circumstances, I hold that it is only the MCGM which can be a
necessary and proper party to the present suit, who can prove the
unauthorized construction if any. Even, if it the applicant is not
added in the suit to justify the notice action, it is for the plaintiff to
prove that alleged construction is legal and made as per the rules
and regulations framed for the purpose of constructions of the
premises i.e with the permission of Competent Authority.
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21 The plaintiff has challenged the impugned notice
issued by the Municipal Corporation. The plaintiff is the tenant of
the notice structure. The plaintiff has not sought any relief against
the present applicant. Therefore, in view of the observations of
Hon’ble Apex Court in the case of Mohamed Hussain Gulam Ali
Shariffi cited supra and facts of the present case, it appears that in
the present matter, the question for determination is whether the
notice issued by the defendant under section 351 of MMC Act is
legally valid or not.
22 It is settled principle of law that the plaintiff being a
dominus litis cannot be forced to add any person as party to his
suit unless it is held keeping view the pleadings and the reliefs
claimed therein that a person sought to be added as a party is
necessary party and without his presence neither the suit can
proceed nor the relief can be granted. It is only when such person
can be allowed to become party, else the suit will have to be
dismissed for non impleadment of such necessary party.
23 As like in the case of Mohamed Hussain Gulam Ali
Shariffi as cited supra, the rights and interest of the present
applicant are yet to be decided and crystallized in another
proceedings. In the above matter, the specific performance of the
agreement for sale was to be adjudicated upon and in the present
matter, the proceedings before the Small Causes Court is pending
and the present plaintiff has not accepted the relationship of
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landlord and tenant in between him and present applicant.
Obviously, letter of attornment is not necessary in all cases
showing change of ownership title of landlord to the tenant, but it
reflects here that there is dispute between parties regarding title of
applicant. Admittedly, this Court is not called upon to adjudicate
the rights between plaintiff and applicant in relation to the suit
property or notice structure. The same has to be decided by
different appropriate forum. Once the interest in the property is in
issue, the person proposing or pleading said right need not be
added in the present suit for defending against the claim of
plaintiff. Moreso, it is not the case that the defendant Corporation
is not in a position to defend the suit against the plaintiff regarding
unauthorised construction. Therefore, looking to said aspect, I
hold that that there are no distinguishing features in the present
suit as like in the case of M/s. Dunhill Dome Coop Hsg. Soc.
Ltd. and Nimesh J. Patel V/s. Municipal Corporation of Gr.
Mumbai, 2021 DGLS (Bom.)2268 as cited supra from the facts
and circumstances so narrated in the case of Mohd. Hussain Gulam
Ali Sharifi as cited supra. Therefore, I hold that the authorities
cited by the advocate for the applicant are not applicable to the
present case. Whereas the authority in the case of Mohamed
Hussain Gulam Ali Shariffi as cited supra is squarely applicable
here.
24 Considering the nature of the suit and the relief
claimed in the present matter, it transpires that non impleadment
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of applicant as a party defendant is not likely to adversely affect
the rights and interest of the applicant. Hence, considering the
said circumstance, I hold that the presence of the applicant before
the court is not necessary in order to enable the court to effectively
and completely to adjudicate upon and decide all questions
involved in the suit.
25 Hence, I hold that in the present matter impleadment
of the applicant as defendant is not necessary and the plaintiff is
not liable to get the directions for such impleadment and
amendment in the suit plaint. As such, the chamber summons is
liable to be rejected with the aforesaid findings. Hence , following
order is passed:
ORDER
1 Chamber Summons No.34 of 2019 stands dismissed.
2 Chamber Summons is disposed off.
Date: 06/10/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :06/10/2022.
Typed on :10/10/2022.
Signed on :10/10/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
10/10/2022 3.25 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
06/10/2022.
JUDGMENT/ORDER signed by
P.O.on
10/10/2022.
JUDGMENT/ORDER uploaded on 10/10/2022.
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