Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch-Sum. no.114 of 2018 in L. C. Suit no.2589-2017
CNR MHCC010008572018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.114 OF 2018
IN
L.C. SUIT NO.2589 OF 2017
Naina Ramesh Radia ]...Plaintiff.
Versus
Designated officer, D Ward ]
Municipal Corporation of ]
Greater Mumbai & Anr. ]... Defendants.
and
Dhirajlal M. Shah ]... Applicant.
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 19th April, 2018.
Ms. Indira Bhushan with Adv. P. D. Gandhi, advocate for plaintiff.
Ms. Patil, advocate for defendant.
Mr. Desai advocate for applicant.
ORDER
1. The applicant claims to be the resident of the building
where the notice structuregarage is located. He has taken out this
chamber summons seeking his impleadment as defendant no. 2 in the
suit on the ground that he is having important information relating to
the subject matter of the suit.
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2 Ch-Sum. no.114 of 2018 in L. C. Suit no.2589-2017
2. According to him, the notice under section 351 of M.M.C.
Act has been issued against unauthorised construction of garage raised
by the plaintiff in the common space of the building. The said notice
has been issued on the basis of complaint made by him. The said
garage causes inconvenience to the senior citizens for their ingress and
egress and also for parking the vehicles of the residents of the building.
According to him his presence will assist the Court for proper
determination of the matter in dispute.
3. The plaintiff opposed the application by contending that
the applicant is not necessary or proper party. Interests of the applicant
are not directly involved in the subject matter. The applicant wishes to
settle his personal grievances against the husband of the plaintiff as her
husband being an office bearer of the society has initiated action for
recovery of society charges against the applicant. Applicant is in habit
of filing false complaints. The present dispute is between the plaintiff
and a local authority. The chamber summons has only been filed to
harass the plaintiff.
4. The applicant filed affidavit in rejoinder by contending that
as per the consent terms executed before the Hon'ble High Court only
six garages were given. There was no question of seventh garage. The
plaintiff did not apply for lucky draw to get a garage out of six garages.
By circular dated 23.04.1977, the six garages were alloted. The plaintiff
has carried out unauthorised construction of garage and the same
should be on removed.
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3 Ch-Sum. no.114 of 2018 in L. C. Suit no.2589-2017
5. The learned advocate for applicant submitted that the
applicant being resident of the same building is grossly affected by
illegal construction of seventh garage carried out by the plaintiff, by
which the common passage & porch are blocked. She has relied on the
following authorities :
(A). (1995) 3 Supreme Court Cases 147
Anil Kumar vs. Shivnath Mishra
Ratio : By operation of Order I Rule 10(2) the court has power to
add name of a party on satisfaction that presence of such
party is necessary for effective and complete adjudication of
the matter in dispute.
(B). 1985 Mh. L. J 220
Kantaben vs. Parsi Dairy Farm
Ratio : In a suit for injunction filed by the tenant against
Municipal corporation on receipt of notice under Section
351, the owner is a proper party.
6. In reply, Adv. Bhushan submitted that the applicant has not
filed any documents in support of his contention. If he is impleaded, it
will increase scope of the litigation. He is not owner or landlord of the
said open space. On the contrary his wife is the member of the society.
She has relied on the following authorities :
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4 Ch-Sum. no.114 of 2018 in L. C. Suit no.2589-2017
A. (1992) 2 Supreme Court Cases 524
Ramesh vs. MCGM
B. W.P. No. 13175 of 2017
Chirag Jain vs. Rajesh Bhavsar & ors.
Ratio: Merely because respondent has made some
complaints against construction of petitioner and
on that basis, the Municipal corporation issued
notice against the petitioner, his presence cannot
be necessary either as proper or necessary party.
At the most he may be a witness.
7. Considering the submissions and the ratios under citation,
as held in the case of Ramesh (supra) 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 complete and final decision on question involved in the
proceeding. Only reason which makes it necessary to make a person a
party to an action is so that he should be bound by the result of action
and the question to be settled cannot be settled effectively and
completely unless he is party. The person must be directly and legally
interested party. The result of litigation would affect him legally by
curtailing his legal rights. A person whose object is to prosecute his
own cause of action cannot be so joined. The Supreme Court has laid
down a test, “ may the order for which the plaintiff is asking, directly
affect the intervener in enjoyment of his rights..” as held in the case of
Dollfus Mieget vs. Bank of England (1950) 2 All England reporter 605.
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5 Ch-Sum. no.114 of 2018 in L. C. Suit no.2589-2017
8. Here, though an action has been initiated against the suit
structure on the basis of the complaint filed by the applicant, the
applicant may seek redress of his grievance about obstruction to his
ingress and egress by filing an independent suit against the plaintiff. He
cannot be added as defendant no. 2. He may be a witness for
defendant corporation. Therefore, his presence as defendant is not
necessary or proper for complete and effective adjudication of matter in
dispute i.e. legality and vires of the construction of the garage and the
impugned notice and order. Therefore, the following order is passed :
ORDER
1. The Chamber summons no. 114 of 2018 is dismissed.
2. The parties to bear their respective costs.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dated: 19.04.2018
Directly typed on : 19/04/2018.
Signed by HHJ on : 20/04/2018.
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6 Ch-Sum. no.114 of 2018 in L. C. Suit no.2589-2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.04.2018 At 11.15 a.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
19.04.2018
JUDGMENT/ORDER signed by
P.O. on
20.04.2018
JUDGMENT/ORDER uploaded
on
20.04.2018
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