Final Order 1

Order Details: Chamber summons
Pdf Text: CS No. 107/2018 in suit no. 731/2015
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS No. 107 of 2018
(CNR NO. MHCC010008642018)
IN
LONG CAUSE SUIT NO.731 OF 2015
Mr. Prashant Sitaram More ... Plaintiff
V/s.
The Municipal Corporation of
Greater Mumbai ...Defendant
AND
Mr. Tulsidas Vishnu Kawlekar ...Applicant/
Prop. Defendant no.2
CORAM : HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.06)
DATE : 25/04/2023
Mr. Kantilal Kanojia, Learned advocate for applicant.
Mr. Mukesh Chheda, Learned advocate for plaintiff.
Ms. Deepali Patil, Learned advocate for the defendant/BMC.
ORAL ORDER
1. This Chamber Summons is taken by applicant for
impleading him as a necessary party to the suit. On the other hand,
plaintiff objected present application by filing detailed reply.
2. Read Chamber Summons and reply filed by plaintiff. Heard
both sides at length. Perused documents placed on record by both
parties.
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2 CS No. 107/2018 in suit no. 731/2015
3. This is a suit for declaration that action of defendant as per
notice under section 351 is illegal and bad in law along with permanent
injunction. Applicant emphasis to incorporate him as a necessary party
to proceeding on following grounds :
(a) Applicant is a partner of M/s Sadguru Autoworks and also
joint tenant and member of premises.
(b) Shiroda Panchakroshi Cooperative Society Limited is a new
landlord of the suit property. Applicant and his partner are
members of the society and paid rents.
(c) Applicant and his partner doing business of car repairing in
the name and style as M/s Sadguru Autoworks in which they
allowed plaintiff to keep material after completion of welding
works.
(d) In RAD suit no. 2603 of 1976 Honble Small Causes Court,
Mumbai declared father of plaintiff as a lawful subtenant of
suit premises.
(e) Plaintiff prepared false, fabricated documents for obtaining
electricity and other amenities.
4. On the contrary, it is the contention of plaintiff that in a
suit for declaration against a notice under section 351 of MMC Act of
demolition of unauthorised construction. Applicant is not necessary
party to the proceeding.
5. Before discussing the rival contentions it is just and
necessary to mention here that when the presence of party is necessary
for complete and effectual adjudication of dispute though no relief is
sought, is a proper party to the suit. The necessary party is one without
whose presence no effective and complete adjudication of a dispute
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3 CS No. 107/2018 in suit no. 731/2015
could be made and no relief granted. The controversy in the present suit
is in respect of notice issued by BMC/defendant to the
plaintiff/occupant.
6. At this juncture, Learned advocate for plaintiff submitted
before Court that dispute is in respect of legality of notice issued under
MMC Act. Therefore, only BMC is a necessary party to the proceeding.
The question of right, title and interest in the suit premises/property is
not in dispute in the present suit. Therefore, presence of applicant is not
necessary for complete effective adjudication of the suit.
7. On the other hand, learned advocate for applicant
submitted before Court that presence of owner is necessary for
adjudication of the suit. Applicant is the only person who can brought
the true and real facts on record in respect of forgery played by plaintiff.
Applicant placed reliance in the cases of :
1. M/s Chitralekha Builders V/s GIC reported in 2005 (4) All MR
584.
2. Kisan Ucchatar Madhyamik Vidyalay Samiti V/s Third Additional
District Judge reported in AIR 1989 Allahabad 168.
8. On going through rival submissions and on perusal of case
laws relied by applicant it appears that facts, circumstances and nature
of suit is different from the present facts and circumstances of the case.
In the present suit, the dispute is only in respect of legality of notice
issued by BMC. Therefore, Municipal Corporation is proper and
necessary party to the proceeding. The question of right title and
interest in suit property is not disputed by either of the parties. Under
such circumstances case laws relied by applicant hardly help to the case
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4 CS No. 107/2018 in suit no. 731/2015
of applicant. The question of alleged forgery, preparation of false
document can be questioned by applicant in proper proceeding before
competent forum. Hence, submissions raised on behalf of applicant
cannot be acceptable one.
9. In the present suit, the dispute is in respect of legality of
notice issued under BMC Act by Corporation. The contention raised on
behalf of applicant regarding throwing light on various aspect of the
suit premises cannot be acceptable because suit is instituted by
occupant and challenged validity, legality of notice issued by BMC. It is
settled law that in a suit under BMC Act challenging a notice issued
under MMC Act owner/other person is not a necessary party. The
effective and complete adjudication of dispute can be made in absence
of applicant. Hence, it is not just and necessary to implead applicant as
a necessary and proper party to the suit. Hence, from the above
discussion, I proceed to pass following order :
ORDER
1. The Chamber Summons No. 107 of 2018 is rejected.
2. Accordingly, the Chamber Summons no. 107 of 2018 stands
disposed off.
3. Both parties to take note of this order.
(R. B. Parvekar)
Date 25/04/2023 Adhoc Judge,City Civil Court,
Gr. Bombay .
Direct Dictated and typed on : 25/04/2023
checked and Signed on: 27/04/2023
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5 CS No. 107/2018 in suit no. 731/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/05/2023 &11.40 am ( Mr. Mohit M. Patange)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
25/04/2023
JUDGMENT/ORDER signed by
P.O.on
27/04/2023
JUDGMENT/ORDER uploaded on 02/05/2023
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