Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010005702020
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO.72 OF 2020
IN
NOTICE OF MOTION NO.3856 OF 2019
IN
SHORT CAUSE SUIT NO.2568 OF 2019
Mr.Ismail Abdul Bapuni ... Plaintiff
V/s.
M.C.G.M … Defendant
AND
Mr. Anthony Selvin Michael ... Proposed
Defendant.
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 13/12/2021
Adv Ms. Priyanka Chawla for the plaintiff.
Adv.Ms. Shashikala Mahamuni for the applicant.
Adv. Ms. Deepali Patil for the defendants/BMC.
ORAL ORDER
1. This Chamber Summons is taken out by the Applicant to
add him as a party defendant to the suit.
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2 Ch/s. 72/2020
2. The plaintiff has filed reply to the Chamber Summons and
contested the Chamber Summons.
3. Perused the Chamber Summons and reply of the plaintiff
and defendant corporation. Heard advocates for the parties at the
length.
4. It is contended by the Applicant that he has made
complaints with the Mumbai Municipal Corporation regarding illegal
construction carried out by the plaintiff and therefore, on his complaints
the Mumbai Municipal Corporation has initiated the action against the
said illegal construction. Therefore, according to the applicant he
should be joined as a party defendant to the suit for proper adjudication
of the same.
5. Order I Rule 3 of the Code of Civil Procedure reads as
under:
'Who may be joined as defendants. All persons may be
joined in one suit as defendants where
(a) any right to relief in respect of, or arising out of the
same act or transaction or series of acts or transactions is
alleged to exist against such persons, whether jointly,
severally or in the alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise.'
6. The plaintiff has challenged the notice issued by Mumbai
Municipal Corporation dated 29.08.2019 and order passed in pursuance
of the same on 23.09.2019 in the present suit. The subject matter of the
suit is the said notice and order. Therefore, the dispute is only between
the plaintiff and defendant corporation. The cause of action to the
present suit is only against defendant corporation. Undisputedly, the
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3 Ch/s. 72/2020
applicant is not claiming any right and title in respect of the suit
premises. Therefore, though he has made complaint regarding alleged
illegal construction against the plaintiff, he cannot be said to be
necessary party or proper party in whose absence no order or judgment
can be passed effectively in this suit. The applicant is not a party whose
presence is necessary for complete and final adjudication of the suit.
Therefore, it is held that applicant is not necessary or proper party to
the suit as per Order I Rule 3 of the CPC. The plaintiff being a Dominus
Litis cannot be forced to add the applicant as a party defendant to the
suit who do not have any right in the suit property or who is not
necessary or proper party to the present suit.
7. In this background, it is held that applicant cannot be
added as party defendant in the suit. Thereafter, this chamber summons
is liable to be rejected. Hence, I pass following order.
ORDER
1. The Chamber Summons No.72/2020 is rejected
2. The Chamber Summons No.72/2020 is disposed off.
(S.G.Shaikh)
Judge,
Date : 13/12/2021 City Civil Court, Gr.Mumbai.
Dictated on : 13/12/2021
Typed on : 13/12/2021
Signed on :
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4 Ch/s. 72/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/12/2021 05.30 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
13/12/2021
JUDGMENT/ORDER signed by
P.O.on
13/12/2021
JUDGMENT/ORDER uploaded on 13/12/2021
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