Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO : MHCC010003772018. .1. CH/S No. 70/2018 in
L.C. Suit No. 2275/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 70 OF 2018.
IN
L.C. SUIT NO. 2275 OF 2017.
Arvind Laxmidas Joysar+1. ……......……………… … PLAINTIFFS.
V/s.
MCGM. ……….…..............................................…. … DEFENDANT.
Ahmed Khan (Baba) Khwaja Moinuddin Khan. …. … APPLICANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 16th November, 2024.
APPEARANCES :
Mr. V.T. Dubey, Ld. Advocate for the Plaintiffs.
Mr. Arvind Rathod, Ld. Advocate for the Defendant/MCGM.
Mr. Ravindra Singh, Ld. Advocate for the Applicant.
01. The applicant has taken out this Chamber Summons i.e. the
Ch/s., for his addition as party defendant to this suit. Perused the Ch/s.,
his supporting affidavit and additional affidavit, the plaintiffs’ reply, the
applicant's reply rejoinder and the documents relied. Heard.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether presence of the applicant is
required to effectively adjudicate upon
the suit issues? …..…..….................…….....No.
(2). What Order? …............….......................…. As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By filing this Ch/s., the applicant came with a specific case
that he is owner of the suit property and even suit No.1698/2017 is also
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CNR NO : MHCC010003772018. .2. CH/S No. 70/2018 in
L.C. Suit No. 2275/2017.
pending before this Court. However, intentionally, the plaintiffs avoided
to join him as party to this suit. Being aggrieved by the Order passed in
Notice of Motion (the NM) in the above said suit, he preferred A.O. (St.)
No.3315/2017, which is pending before the Hon’ble High Court. As the
owner of suit property, his vital rights are involved therein and hence, it
is necessary to add him as party to this suit. Else, he would suffer great
loss. Whereas, no prejudice would be caused even to the plaintiffs, if the
Ch/s. is allowed. Supporting his contentions, he filed copies of plaint of
the said suit and the documents placed therein viz. 7 X 12 extracts, the
Tenancy Agreements, the N.A. Order, sketch plan, letter dtd. 05.07.2017
issued to the defendant/MCGM, etc.. Resisting this Ch/s., the plaintiffs
contended that the same is not legally maintainable and the applicant is
not the necessary or proper party to this suit. Moreover, in the said suit,
the applicant filed NM No. 2736/2017 for grant of interim relief and the
same was dismissed on 12.10.2017. Even, the A.O., preferred by him, is
dismissed on 21.03.2018. To support their claims, they filed the copies
of the said Orders of dtd.12.10.2017 and 21.03.2018. In reply rejoinder,
the applicant denied all adverse contentions of the plaintiffs.
04. Considering the rival submissions, at the outset, it is worth
notable that by this suit, the plaintiff prayed for the relief of declaration
that the notice dtd. 14.09.2017, issued U/s. 354-A of the MMC Act, and
the Order dtd. 25.10.2017 are bad in law, along-with the other ancillary
reliefs. Since inception, the plaintiffs justified the notice structure on the
counts that it was old and existed prior to 1962. They were in peaceful
possession of the same and carried only tenantable repairs to it. On this
backdrop, it can safely be arrived at that scope of this suit is restricted,
requiring presence of the defendant/MCGM to decide the suit finally. By
filing this Ch/s, now, the applicant posed himself as 'owner' of this suit
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CNR NO : MHCC010003772018. .3. CH/S No. 70/2018 in
L.C. Suit No. 2275/2017.
property and contended pendency of suit No. 1698/2017. He also filed
copy of its plaint. On its perusal, it appears that the applicant filed the
said suit for a declaration that the defendants (plaintiff No.1 in this suit
and one another) had no rights or interest on the property, described in
that suit. Admittedly, NM No. 2736/2017, filed by this applicant in that
suit to restrain the defendants to encroach upon the said property and
to carry further construction, stood dismissed and even the A.O. came to
be disposed of as withdrawn. Moreover, while dismissing NM, the Court
observed that this applicant (the plaintiff therein) couldn’t manifest that
the said property belonged to him. Simultaneously, here also, except his
assertions, there is nothing on record to infer his alleged 'ownership' on
the suit property. Be that as it may, the fact remains that as the said suit
is still pending before the concerned Court, the reciprocal contentions of
the parties may be taken care of in that suit only. If it is put differently,
this Court is not going to record any finding, in this suit, on the alleged
ownership rights/ title of the parties. To sum-up, considering the limited
scope of this suit, I am of the view that the applicant's presence is not
required for its just decision and it can be decided even in his absence.
If said differently, in my considered view, to decide this matter, the only
necessary and proper party required is the defendant/MCGM, who had
issued the impugned notice. More so, as per the settled principle of law,
the plaintiff, being the dominus-litis of the suit, can't be forced to add
any person as a party to his suit, unless it is held, keeping in view the
pleadings and the relief claimed, that person sought to be added as the
party is a necessary party and without his presence neither the suit can
proceed and nor the relief can be granted. It is only then such a person
can be allowed to become party, else the suit will have to be dismissed
for the non-impleadment of such necessary party. However, this is not
the position in this matter. Hence, I answered point No.1 in the negative
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CNR NO : MHCC010003772018. .4. CH/S No. 70/2018 in
L.C. Suit No. 2275/2017.
and in the answer to point No. 2, I pass the following Order:
-: O R D E R :-
(i). Chamber Summons No. 70/2018 stands dismissed.
(ii). Chamber Summons No. 70/2018 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 16.11.2024. City Civil Court, Mumbai.
Dictated on : 16.11.2024.
Transcribed on : 29.11.2024.
Checked and Signed on : 02.12.2024.
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CNR NO : MHCC010003772018. .5. CH/S No. 70/2018 in
L.C. Suit No. 2275/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
02.12.2024.at 1.28 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 16.11.2024.
Judgment/Order signed by P.O. on 02.12.2024.
Judgment/Order uploaded on 02.12.2024.
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