Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons No. 151/2019 ..1.. In Suit (ST) No. 15704/2018
CNR NO.MHCC010008432019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.151 OF 2019
IN
L.C. SUIT (ST) NO.15704 OF 2018
1. Mr. Abdul Rauf Abdul Salam,
Aged : 53 years, Occ. : Business,
Residing At : Room No. 17,
Mohd. Raique Rahim Bux Chawl,
(Mummu Chawl), Quresh Nagar,
Kurla (East), Mumbai 400 070.
2. Mohd. Salim Abdul Salam,
Aged : 63 years, Occ. : Business,
Residing At : Flat No. A/501,
Diamond Hill Building,
Near Bunter Bhaven, Quresh Nagar,
Kurla (East), Mumbai 400 070.
Both are Landlord of Akhtari Begum Salam Chawl,
(Sayed Master Chawl), Quresh Nagar Hill,
Near Taxi Stand, Quresh Nagar,
Kurla (East), Mumbai 400 070. ...Applicants.
IN THE MATTER BETWEEN
Mr. Mansoor Ali (Salim) Maqsood Ali,
Aged : 32 years,
Residing At : Maulana Building,
Near Taxi Stand, Kasaiwada,
Quresh Nagar, Kurla (East),
Mumbai 400 070. ...Plaintiff.
Versus
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Chamber Summons No. 151/2019 ..2.. In Suit (ST) No. 15704/2018
1. The Municipal Corporation of
Greater Mumbai,
Having their Head Office At :
Mahapalika Bhavan,
Mahapalika Marg, Mumbai 400 001.
2. Designated Officer / Assistant Engineer,
M.C.G.M. (Building & Factories)
'L' Ward, Municipal Market /
L. Y. Market Building, S. G. Barve Marg,
Kurla (West), Mumbai 400 001. ... Defendants.
Appearance :
Mr. Pratap Singh, Advocate for Plaintiff.
Mr. Giri, Advocate for Defendant/MCGM.
Mr. Moin Khan, Advocate for Applicants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE (C.R. No.11)
DATE : 18TH OCTOBER, 2019.
O R D E R
The applicants have taken out this Chamber Summons
to implied themselves as defendants No. 3 and 4 contending that
they are necessary and proper parties to the suit.
2. It is the applicants' case that, they are the landlords of
the plot of land on which the plaintiff is raising illegal construction.
Plaintiff's father had filed a suit for declaration of his ownership
vide Suit No.1636/1997 which was decided by these applicants.
Said suit is dismissed in the year 2008. On noticing plaintiff's illegal
activities, the applicants filed complaint with defendant Corporation
upon which the notice is issued by defendant under Section 354A.
The plaintiff has leveled allegations against "Somebody" i.e.
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Chamber Summons No. 151/2019 ..3.. In Suit (ST) No. 15704/2018
complainant and therefore, it is necessary that the applicants be
brought on record. Plaintiff and defendant are in collusion.
3. Chamber Summons is opposed by the plaintiff on the
ground that the grounds raised in support of Chamber Summons
are false. In the year 2001, the applicants and others had filed a suit
bearing S.C.No.6167/2001 against his late father which came to be
dismissed in the year 2003. The Appeal from Order also came to be
dismissed by the Hon'ble High Court in 2007. Applicant No.2 has
also filed R.A.E. Suit No.2165/2008 against Mr. Mohd. Rafique
Mohd. Yusuf which came to be withdrawn by him on 02.03.2016.
The applicants keep on filing such suits. They had also sought
appointment of receiver in another Suit bearing No.5310/2016 filed
against plaintiff's late father. However, such request was refused.
Applicants have no title, right or interest in the suit premises and
have filed false complaint. The Chamber Summons is not
maintainable.
4. Perused. Heard.
5. Advocate for applicants has submitted written notes of
argument on Exh.8. The applicants have, in their written notes of
arguments relied upon K. Ramadas Shenoy V/s. Chief Officer,
Town Municipal Council, Udipi, A.I.R. 1974 SC 2177, wherein the
Hon'ble Supreme Court has considered the role of Municipal
Authorities. They have also relied upon S. P. Gupta V/.s U.O.I.,
1981 Supp. SCC 87, wherein the Hon'ble Supreme Court allowed a
public interest litigation by relaxing the rules of locus standi. They
have also relied upon Friends Colony Development Committee
V/s. State of Orissa, 2004 (8) SCC 733, for same purpose. They
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Chamber Summons No. 151/2019 ..4.. In Suit (ST) No. 15704/2018
have also relied upon Comptroller and Auditor General of India
V/s. K. S. Jagannathan, AIR 19862679 SCC , wherein the Hon'ble
Supreme Court had observed that the Courts have power to issue a
writ of mandamus directing the Government or Public Authority to
exercise the discretion conferred upon them in a judicious manner.
6. On the other hand Advocate for plaintiff relied upon
Mohamed Hussain Gulam Ali Shariffi V/s. Municipal
Corporation of Greater Bombay and Ors., LEX (SC) 2016 12 62,
wherein the Hon'ble Supreme Court has held,
“In our considered opinion, having regard to the
nature of the controversy, which is the subject matte
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).
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.
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
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Chamber Summons No. 151/2019 ..5.. In Suit (ST) No. 15704/2018
party, else the suit will have to be dismissed for non
impleadment of such necessary party. Such does not
appear to be a case here.
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.”
7. In this case, applicants have not produced any
document along with affidavit in support of the Chamber Summons
to reveal their right, interest or title in the plot of land as claimed by
them in the Chamber Summons. In absence of any document to
establish that the applicants have right, title or interest in the plot of
land on which the construction is allegedly being carried out
illegally, the applicants can not seek their implement in present
case.
8. Considering the observations of the Hon'ble Supreme
Court in Mohd. Hussain Gulam Ali Sharif's case, I hold that the
applicants can not be impleaded as defendants in the suit in absence
of their interest in the plot of land as alleged. They also can not be
impleaded as there are no allegations in the plaint against them
which they are supposed to defend. Mere dismissal of suit filed by
plaintiff's father against the predecessor in title of the applicants or
against the applicants will not prove that the applicants are the
landlords of the plot of land. Thus, in present suit, while deciding
legality of impugned notice, only the defendant corporation may be
the necessary party. In the result, I hold that the Chamber Summons
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Chamber Summons No. 151/2019 ..6.. In Suit (ST) No. 15704/2018
is meritless. Hence, following order.
ORDER
1. Chamber Summons No.151 of 2019 is dismissed.
2. No order as to costs.
(A. N. MARE)
Judge,
Date : 18.10.2019 City Civil Court, Gr. Mumbai.
Dictated On : 18.10.2019
Transcribed on : 18.10.2019
HHJ Signed on : 22.10.2019
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Chamber Summons No. 151/2019 ..7.. In Suit (ST) No. 15704/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
22.10.2019 5.16 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 18.10.2019
Order signed by P.O. on 22.10.2019
Order uploaded on 22.10.2019
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