Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch.S. 115-2019 in Suit no. 482-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS No. 115 OF 2019
IN
L.C. SUIT NO. 482 OF 2019
Rafique Haroon Ghaniwala ]...Plaintiff
Versus
The Municipal Corporation of ]
Greater Mumbai ]...Defendants
AND
Mr. Umer (Omar) Haji Abdul Gafoor Koor ]..Applicants
Coram : Shri Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 03rd April, 2019.
Appearance:
Ld. Adv. Akbar Ali Mirza for plaintiff.
Ld. Adv. Rawade for defendant/MCGM.
Ld. Adv. S.H. Patel for applicant.
ORDER
1. By this Chamber Summons, the applicant i.e. lessee seeks to be
added as party defendant in the suit.
It is the case of the applicant that he is owner of the property
involved in the present suit. It is contended by the applicant i.e. lessee
the he can show that the plaintiff had carried out unauthorized
CNR No.MHCC010006702019
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structure in the suit premises. It is pleaded that he can justify the notice
issued is just and proper. It is submitted that the various judgments of
the Hon'ble Supreme Court and Hon'ble High Court that the lessee is
necessary party. It is stated that in the interest of the justice and equity
that the applicant/lessee needs to be permitted to intervene in the suit
and be added as party defendant.
2. Heard Learned Advocate for the proposed defendant i.e. lessee
and the Learned Advocate for the plaintiff.
It is settled law that the plaintiff is dominus litis and had not
bound to sue every possible adverse claimant in the same suit and he
can choose to implead only those persons against whom he wishes to
proceed but the Court may at any stage of the suit direct addition of
parties. A party can be joined as defendant even though the plaintiff
does not think that he has any cause of action against him. The
question of impleadment of a party has to be decided on the touchstone
of Order 1 Rule 10 which provides that only a necessary and proper
party may be added.
Rule 10(2) gives a wide discretion to meet every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the
necessary party on record. A necessary party is one without whom no
order can be made effectively. A proper party is one in whose absence
an effective order can be made but whose presence is necessary for a
complete and final decision on the question involved in the proceeding.
The judicial discretion in addition of parties has to be exercised in view
of all the facts and circumstances of a particular case. The Court is
empowered to join a person whose presence is necessary for the
prescribed purpose and cannot under the rule direct the addition of a
person whose presence is not necessary for that purpose. If the
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intervener has a cause of action against the plaintiff relating to the
subject matter of the exist cause of action, the Court has power to join
the intervener so as to give effect to the primary object of the order
which is to avoid multiplicity of actions.
3. The Hon'ble High Court in case of Aliji Momonji & Co V/s Lalji
Mavji & Ors. (1996) 5 Supreme Court Cases 379, stated that in view
of the findings that in the event of the building being demolished, the
right, title and interest of the lessee would directly be affected, the
lessee would be a proper party, though no relief had been sought for
against the lessee.
The Hon'ble Supreme Court has categorically observed that his
title and interest of the lessee would be directly affected for the building
of the structure being demolished.
4. The Learned Advocate for the plaintiff relied upon the judgment
reported in in case of Mohamed Hussain Gulam Ali Shariffi V/s MMC
& Ors. 2017 (6) ALL MR 420 (S.C.) The Hon'ble Supreme Court
observed paragraph no. 13 to 18 as under:
13) In our considered opinion, having regard to the nature of the
controversy, which is the subject matter of the suit respondent nos. 2
and 3 are neither necessary nor proper parties. As would be clear from
mere perusal of the plaint, the basic question, which is required to be
decided in the suit, is whether notice issued under Section 351 of the
Act by respondent no. 1 (Corporation) to the appellant is legally valid
or not (see prayer (a) in the plaint page 251 of Volume II of S.L.P.
Paper Book).
14) To decide this question, in our considered opinion, the only
necessary and proper party to the suit is the Mumbai Municipal
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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 & 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) It is a 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 nonimpleadment of such necessary party.
Such does not appear to be a case here.
16) We do not find that the presence of respondent nos. 2 and 3 in
the facts of this case is required for deciding the legality of notice
impugned in the suit on merits because the dispute centers around the
question of legality and validity of the notice which, as mentioned
above, arises between respondent no. 1, who has issued the notice, and
the person to whom it is given i.e. appellant.
17) In the suit in question, the Court is not called upon to adjudicate
the rights between the appellant and respondents nos. 2 and 3 in
relation to the suit house, Any such dispute, if arises, the same can be
decided in the separate suit, which is pending between the parties or
may be field, if required, by the parties against each other but such
dispute cannot be tried on the cause of action pleaded in the present
suit by the appellant where the lis is essentially between the appellant
(plaintiff) and respondent no. 1. Merely because th suit house is the
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subject matter between all the parties is no ground to get the dispute
arising between the parties settled in one suit regardless of the nature of
cause of action on which the suit is founded.
18) We cannot, therefore, agree with the reasoning of the two Courts
that since respondent nos. 2 and 3 are proper parties (though not
necessary) to the suit and, therefore, they should be arrayed as party
defendants.
It was observed by the Hon'ble Court that plaintiff cannot be
forced to add any person as party to his suit unless it is held keeping in
view of pleadings that person sought to be added as a party is a
necessary party and without presence neither the suit can proceed 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. It is observed that in order to
decide the legality of the notice, the presence of the lessee is not
necessary. It is observed that the Court is not called upon to adjudicate
the rights between the proposed respondents. It was further held that
merely because the suit house is the subject matter between all the
parties is no ground to get the dispute arising settled in one suit
regardless of the nature of cause of action on which the suit is founded.
5. The Hon'ble Bombay High Court relying upon the judgment in
Civil Appellate Jurisdiction in Writ Petition No. 7123/2018 in case
of Deju Somaya Salain V/s MMC & Ors, observed that the Court is
bound by the later judgment of the Hon'ble Supreme Court i.e.
Mohamed Hussain Gulam Ali Shariffi V/s MMC & Ors., 2017(6) ALL
M.R. 420 (S.C.) The order of the Trial Court adding the lessee as party
was in the set aside.
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6. Admittedly in the present suit, the notice under Section 351 of
the BMC Act is challenged. In the light of the judgment in case of
Mohamed Hussain Gulam Ali Shariffi V/s MMC & Ors. The lessee
cannot said to the necessary party.
The legality of the impugned notice in the suit is to be decided on
merits. The dispute centers arrive the question of lessee and the
validity of the notice arises between the plaintiff and defendant
corporation.
7. So also the Hon'ble High Court in case of Deju Somaya Salain
V/s MMC & Ors. had observed that it is bound the later judgment of
the Supreme Court in case of Mohamed Hussain Gulam Ali Shariffi
V/s MMC & Ors. which is later of the judgment in case of Aliji
Momonji & Co V/s Lalji Mavji & Ors. (1996) 5 Supreme Court Cases
379.
This Court is also bound by the later judgment of the Supreme
Court in case of Mohamed Hussain Gulam Ali Shariffi V/s MMC &
Ors. and the judgment of the Hon'ble High Court in case of Deju
Somaya Salain V/s MMC & Ors.
The application for adding the proposed defendant i.e. lessee
therefore cannot be entertained. In the result, following order is
passed.
ORDER
Chamber Summons No. 115 of 2019 is rejected.
(Sanjay N. Yadav)
Judge,
Date: 03.04.2019 City Civil Court, Mumbai.
Dictated on : 03.04.2019
Transcribed on : 09.04.2019
Signed by HHJ on : 09.04.2019
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7 Ch.S. 115-2019 in Suit no. 482-2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 10.04.19 at 5.34 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. S. N. Yadav
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
03.04.2019
JUDGMENT/ORDER signed by
P.O. on
09.04.2019
JUDGMENT/ORDER uploaded
on
10.04.2019
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