Final Order 1

Order Details: Chamber summons
Pdf Text: CH/S No.109/2019 ..1.. L.C. Suit No.2493/2019
(CNR NO. MHCC01-000666-2019)
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 109 OF 2019
IN
L.C. SUIT NO. 2493 OF 2018
Tanuja Jayantilal Bhagat )
An adult, Occupation : Business )
R/O 2nd Floor, Jayant Arcade, Above )
Waman Hari Pethe Jewellers, M.R. Road, )
Rajawadi, Ghatkopar (East), )
Mumbai – 400 077 )...Plaintiff
V/s.
1. The Municipal Corporation )
Opp C.S.T. Railway Station, Mumbai )
2. Designated Officer, )
Assistant Engineer (Building & Factory) )
Muncipal Corporation ‘G’ South Ward, )
Municipal Office, Dhanmill Naka, N.M. )
Joshi Marg, Lower Parel, Mumbai– 400 013)
...Defendants
APPEARANCE:-
Ld. Adv. Mr. A.R. Pandey for plaintiff.
Ld. Adv. Mr. Sutar for defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 14th MARCH, 2020.
ORDER
This Chamber summons is moved by applicant/intervener
to implead him in this suit.
2. It is averred in affidavit filed in support of chamber
summons that he (applicant) is running the Hotel business styled as
“Hotel Cafe Aram’ since lifetime of his father. The landlord Suresh
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Bhagat at had filed four separate suits with respect to gala No.1,2,8 & 9
and a garage, in Vinod Mahal, Worli Naka, Mumbai having total area
admeasuring 1600 sq feet. The aforesaid four suits were exparte
decreed & decision in these suits were confirmed upto Hon’ble Apex
Court. The applicant has challenged the said decree on the ground of
fraud for reasons as stated in affidavit. The aforesaid building is
attached by Income Tax Department. Therefore, rent is paid to Income
Tax Department. The Income Tax Department is custodian of suit
premises. Income Tax Department is also necessary party. The alleged
landlord is not concerned with suit premises. As he is tenant in suit
premises & suit premises is under attachment of Income Tax
Department, he is necessary party in this suit. Therefore, he has moved
this chamber summons.
3. Plaintiff has resisted the chamber summons by filing reply.
According to him, applicant is not necessary party in this suit. This suit
is filed by him challenging the notice u/sec.351 of BMC Act. Therefore,
only BMC has to satisfy the validity of notice u/sec.351 of BMC Act.
Further, applicant is now no more tenant in suit premises. The eviction
suits filed by landlord Suresh Bhagat against the tenant i.e. present
applicant are decreed by the Small Causes Court, Mumbai on
27.02.2003. The decree passed in the aforesaid eviction suits are
further confirmed in 4 appeals filed before appellate bench of Small
Causes Court on 30.10.2020. The decision of appellate court was
further assailed before Hon’ble High Court in W.P. No.1014/11 to
1017/11 which are dismissed on 22.09.2016. The SLP No.3357/17,
3447/17, 3507/17 & 3688/17 before Hon’ble Supreme Court are
further dismissed on 17.02.2017. The possession of suit premises was
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CH/S No.109/2019 ..3.. L.C. Suit No.2493/2019
already given on 22.03.2004 by bailiff of court to landlord Suresh
Bhagat by following due process of law. The decree in eviction suit is
therefore final till Hon’ble Apex Court. The applicant is therefore, now
not tenant in suit premises. He has no right in suit premises. The
applicant had further filed RAD in Small Causes Court which is also
dismissed under order 7 Rule 11 of CPC. Plaintiff in this suit is not
claiming any relief against applicant. Therefore, applicant by any
stretch cannot be necessary party in this suit. For aforesaid reasons, he
has prayed for dismissal of chamber summons.
4. Heard both the learned advocates. Perused the
proceeding. Ld. Advocate for applicant in his written notes of
arguments argued in lines of pleadings in affidavit filed in support of
chamber summons. Ld. Advocate for plaintiff also argued in lines of
reply filed by him. He further relied upon observations in
1)
Mohammed Hussain Gulam Ali Shariffi V/s. MCGM in Civil Appeal
No.12273/2016 decided on 09/12/2016, 2)Shrimankishor s/o
Chandrakant Urane V/s. City of Nagpur Corporation in W.P.
No.937/2017 decided on 04/04/2018, 3) Dejusomaya Salian V/s.
MCGM & Ors in W.P. No.7123/2018 decided on 24/09/2018,
4)Sandeep Hiralal Bafna V/s. MCGM in W.P. No.5525/2018 decided on
18/01/2019, 5) Santosh S/o Hanumant Salunkhe V/s. The Municipal
Commissioner Ahmednagar Municipal Corporation in W.P No.
3398/2018 & Anr decided on 04/05/2018.
5. In all these ciatations, the observation in Mohammed
Hussain Gulam Ali Shariffi is followed. In para No.13 & 14, it is
observed as under -
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“13. To decide this question, in our considered opinion,
the only necessary and proper party to the suit is the Mumbai
Municipal Corporation, Greater Mumbai, i.e. respondent
No.1,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.
14. It is settled principle of law, which does not need any
authority to support the principle, that the plaintiff being a
dominus litis cannot be forced to add any person as party to
his suit unless it is held keeping in view the pleadings and the
relief claimed therein that a person sought to be added as
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 person can be allowed to become party, else
the suit will have to be dismissed for non-impleadment of
such necessary party.”
6. The applicant has admitted in his affidavit in support of
chamber summons that decision in eviction suit filed by landlord
Suresh is confirmed upto Hon’ble Apex Court. The facts that the
eviction suits filed by landlord Suresh Bhagat against the tenant i.e.
present applicant are decreed by the Small Causes Court, Mumbai on
27.02.2003, the decree passed in the aforesaid eviction suits is further
confirmed in 4 appeals filed before Appellate bench of Small Causes
Court on 30.10.2020, the decision of appellate court was further
assailed before Hon’ble High Court in W.P. No.1014/11 to 1017/11
which are dismissed on 22.09.2016, the SLP Nos.3357/17, 3447/17,
3507/17 & 3688/17 filed before Hon’ble Supreme Court are further
dismissed on 17.02.2017, the possession of suit premises was already
given on 22.03.2004 by bailiff of court to landlord Suresh Bhagat by
following due process of law, the decree in eviction suit is therefore
final till Hon’ble Apex Court, are further supported by the documents
tendered on record by plaintiff. Therefore, the tenancy of applicant in
suit premises is determined. He cannot claim any right, title, interest in
suit premises. It is also important to note that the RAD suit No.1249 of
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2017 filed by applicant for declaring him as tenant as decree is
obtained in eviction suit by fraud is also dismissed on 08.11.2019
under order 7 Rule 11 of CPC in Small Causes Court, Mumbai. The
copy of judgment is placed on record. It was orally stated by applicant
that he has preferred appeal against the order dated 08.11.2019. There
is no copy of appeal filed nor any stay orders is produced. Therefore,
applicant as on today has no voice.
7. It is further settled legal position that in suit filed by
present plaintiff challenging the notice u/sec.351 of BMC Act, limited
scope of jurisdition is vested in this court on account of Sec.515 A of
BMC Act. Whether the notice u/sec.351 of BMC Act is legal & valid or
not is the only question to be decided in this suit. Whether
applicant/landlord Suresh Bhagat or Income Tax Department has right
in suit premises in eviction suit filed or whether the decree in eviction
suit is obtained by fraud cannot be scope of the enquiry in this suit.
Defendant BMC has issued notice u/sec.351 of the BMC Act to plaintiff.
Therefore, it is matter between plaintiff & BMC. How applicant will be
having concern in this suit. As discussed above, applicant has no voice
as on today much less in this suit. The observations in all the citations
relied upon by plaintiff are squarely applicable in present case. Plaintiff
is dominus litis of his suit. He cannot be forced to join third party
especially when applicant is not concerned with the crux dispute in this
suit. By any stretch, applicant cannot be necessary or proper party in
this suit. I therefore, accede with arguments of Ld. Advocate for
plaintiff as against arguments of Ld. Advocate for applicant.
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CH/S No.109/2019 ..6.. L.C. Suit No.2493/2019
8. For all aforesaid discussion, the chamber summons of
applicant deserves to be dismissed. Therefore, I proceed to pass
following order -
ORDER
1. Chamber Summons No.109/2019 is hereby dismissed with costs.
2. Chamber Summons No.109/2019 is disposed of accordingly.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 14.03.2020 City Civil Court, Gr. Bombay
Dictated on :14.03.2020.
Typed on :10.06.2020 & 17.06.2020 & 09.07.2020
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.07.2020, 04.00 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
14.03.2020
JUDGMENT/ORDER signed by P.O.
on
16.07.2020
JUDGMENT/ORDER uploaded on 16.07.2020
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