Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.107/2019 ..1.. Suit No.1986/2016
CNR No.MHCC010006512019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.107 OF 2019
IN
SUIT NO.1986 OF 2016
Mumtaz Manzil Seva Cooperative Society Limited .. Applicant
In the Matter between
Mrs. Sushma Johnson and another .. Plaintiffs
Versus
Dilawar Hussein Mahadkar and others .. Defendants
Mr. Prashant Chauhan, advocate for plaintiffs
Mrs. Darshana P. Solanki, advocate for applicant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 08th August, 2019
ORAL ORDER
Chamber summons is taken out by the applicant Mumtaz Manzil
Seva CoOperative Society Limited to give directions to plaintiffs to
implead them as party to present suit.
2. It is the contention of applicant that 32 tenants in Mumtaz
Manzil situated on Plot No. RR1379, Wode House Road, Colaba,
Mumbai have formed society viz. Mumtaz Manzil Seva CoOperative
Society Limited, applicant herein. It is registered before the Registrar of
Societies under the Maharashtra CoOperative Societies Act, 1963 on
16.01.2009. Plaintiffs are tenants of Room Nos.9 and 10 which are part
of said building having ground plus three additional floors. Since the
formation of applicant society, all tenants are paying rent as well as
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maintenance charges to the applicant society. The applicant society is
looking after the day to day affairs of the said building and is also
paying lease rent as payable by original Lessee to the Mumbai Port
Trust as per the Lease Agreement. The open terrace above the rooms of
Plaintiffs as referred above is in possession, occupation and use of
applicant as it is common amenity which can be used by all the
members of the applicant society. The access to open terrace is from
first floor of suit building which is not in exclusive possession of
applicant, of which all the tenants are members. It is contended that the
tenants/members of the said society have signed common letter dated
10.09.2016 thereby confirming the fact that common terrace on the first
floor belongs to applicant society and is available for use of all tenants
since beginning. The Plaintiffs have no exclusive right with respect to
the common terrace, which is merely located above the Plaintiffs room.
The terrace has always been maintained by the Landlords and
thereafter by the applicant society and no other tenant or Plaintiffs in
the suit building have exclusive right towards the same. Since 2013
Plaintiffs are claiming the exclusive right over open terrace. The
Plaintiffs have deliberately not made applicant society as party to this
suit in order to grab open terrace. If the applicant society is not made
party to the suit, then grave loss, prejudice and harm will be caused to
all members/tenants of said building. The applicant society is most
affected party in the suit. Therefore, it is just and necessary in the
interest of justice to direct Plaintiffs to join the applicant as party
defendant in the suit. Accordingly, applicant has made prayer in above
terms.
3. Plaintiffs opposed chamber summons by filing affidavit in reply.
They contended that the applicant is neither the owner of said building
nor in possession thereof. The applicant society has been formed for
limited purpose for repairing the structure of building. They do not have
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any conveyance in their name to assert any right in land and in
structure standing thereon. The society came to be formed in the year
2009 as and by way of association of persons for benefit of all its
members for the repairs of structure and to defend the rights of its
members who are tenants in the said building. Present suit has been
filed against defendant, his agents, representatives and staff from not
entering the terrace as the structure being old and without any repair
may collapse and cause threat to the life of son of Plaintiff who lives
alone during the daytime. The defendant and applicant being operating
a recruitment business and medical shop respectively have number of
visitors during the day who are all outsiders and not members of
society. Hence, any relief granted in the present suit would not cause
any prejudice to the rights of applicant. There is no resolution produced
by the applicant society nor did they provide any document to show
that society has right in the said building as the entire building is a
tenanted building. In light of these contentions, plaintiffs prayed for
dismissal of chamber summons.
4. Applicant filed rejoinder to the reply of plaintiffs and reiterated
contentions raised in chamber summons. It is contended that applicant
society has passed resolution whereby it was agreed and declared by all
the members of the society that all the open spaces within the society
compound shall be deemed to common spaces for the use of all the
tenants of said society and the same are not in exclusive possession of
any individual and prayed to allow chamber summons.
5. Read chamber summons, affidavit in support of it, reply of
plaintiffs, rejoinder, plaint and documents. Heard respective counsel for
applicant and plaintiffs. They advanced their arguments as per
respective contention of applicant and plaintiffs. Advocate for plaintiffs
has also filed written notes of arguments. I also perused the same.
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6. Before dealing with present chamber summons it is appropriate
to mention who is necessary and proper party. It is settled law that
necessary party is a person who ought to have been joined as a party
and in his absence no effective decree can be passed at all by the court
while proper party is a party who though not a necessary party, is
person whose presence can enable the court to completely, effectively
and finally adjudicate upon all matters in dispute in the suit though he
need not be a person in favour or against whom decree is to be made.
7. On perusal of plaint it is clear that plaintiffs have sought relief
only against the defendant. They have not sought any relief against the
applicant society. It is pertinent to note that applicant society has been
registered in the year 2009 and it is formed by tenants of Mumtaz
Manzil. Nothing is placed on record to show prima facie that Mumtaz
Manzil and the plot on which said building stands belong to applicant
society. Admittedly, Bombay Port Trust is landlord of the said building
and after passing of decree in relation to said building in favour of
landlord; tenants of said building have formed applicant society. No
doubt, an arrangement has been agreed to between members of said
society that repairs of said building would be carried out by said society
at the expenses of members of said society but that does not mean that
society has acquired rights in said building. Whether plaintiffs have
exclusive right over the terrace of Room Nos.9 and 10 of said building is
concerned; same can be adjudicated without presence of applicant
society. In my view, presence of applicant society is not necessary for
complete, effectual and final decision of question involved in present
suit. In case of infringement of any right of any of the occupants of said
building, they are at liberty to take appropriate proceedings. In light of
discussion made above impleadment of applicant society as party
defendant is neither necessary nor proper and chamber summons
deserves to be dismissed. Hence, pass following order.
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ORDER
Chamber Summons No.107 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 08.08.2019 Gr. Bombay
Typed on : 08.08.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.08.2019. 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
08.08.2019
JUDGMENT/ORDER signed by P.O.
on
13.08.2019
JUDGMENT/ORDER uploaded on 13.08.2019
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