Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC01-000967- 2020 .1. CH/S No. 145/2020 in
L.C. Suit No. 673/2022.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 145 OF 2020.
IN
L.C. SUIT NO. 673 OF 2022.
Akshay Sunil Dhumal. …...........…...…............… …. PLAINTIFF.
V/s.
M.C.G.M.+1.……………………………….…….. …. DEFENDANTS.
And
Ranjita Ketan Divekar (Shivalkar) . ……………… ….. APPLICANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 22nd September, 2022.
APPEARANCES :
Mr. Yogesh Keni, Ld. Advocate for Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for Defendants/MCGM.
Ms. Ranjita Shivalkar, Ld. Advocate for the Applicant.
01. The applicant namely Mrs. Ranjita Divekar (Shivalkar) has
taken out this Chamber Summons (for short the Ch/s.), U/O. I Rule 10
of the Civil Procedure Code, 1908, for directing the plaintiff to join her
as defendant No.3 in this suit. Perused the Ch/s., supporting affidavit of
the applicant and reply of the plaintiff. Heard both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether presence of the applicant is
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle the questions involved in
-- 1 of 5 --
CNR NO. : MHCC01-000967- 2020 .2. CH/S No. 145/2020 in
L.C. Suit No. 673/2022.
the suit ?………………....….................... ...No.
(ii). What Order ? ..............…....................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By filing this Ch/s., the applicant came with a specific case
that the plaintiff started encroaching on open land, lying in front of the
applicant, on 05.12.2018, in an unlawful manner, without securing any
permission from the defendants. Hence, on 05.12.2018, she informed
about the same by filing complaint with the defendants and consequent
thereto, they issued the notice. Even, the plaintiff improperly described
this suit premises. On this backdrop, the applicant is affected party due
to illegal acts of the plaintiff and she needs to be added as 'defendant
No. 3' in the suit. To support her contentions, the applicant relied upon
the copies of complaint, lodged with the defendants, and a photograph.
Contrarily, the plaintiff contended that the applicant herself carried an
illegal construction. Whereas, he carried only 'tenantable repairs' to the
suit premises. The applicant is not related with the suit and hence, the
Ch/s. be dismissed.
04. Having considered the rival submissions, it is worth notable
that by this suit, the plaintiff assailed the notice dtd. 26.02.2019, issued
U/s. 351 of the MMC Act, and the consequential Order dtd. 15.05.2019
being bad in law. Since inception, the plaintiff came with a case that he
acquired his rights, in the suit premises, from - Mr. Mohanlal Mularam
Chauhan and one another, who were holding its tenancy rights. He is in
occupation thereof from 06 years. This Chawl is more than @ 150 years
old and presently, it is occupied by many persons, including the plaintiff
and this applicant. However, his neighbors lodged false reports, with the
-- 2 of 5 --
CNR NO. : MHCC01-000967- 2020 .3. CH/S No. 145/2020 in
L.C. Suit No. 673/2022.
defendants, that he carried illegal construction. Moreover, this applicant
along-with Mr. Shivkar lodged such reports and hence, the defendant
issued this notice. Considering these plaint averments, it can be inferred
safely that it has a restricted scope. Here, the issues would be revolving
around the defendants' propriety to issue the suit notice and to pass the
Order as regards the suit premises. In this way, nowhere, the applicant's
interest is at stake in this suit. True that on her complaint, the notice is
issued, however, only on that count, she is not required to be joined as
party to this suit. Even as per her stand, the plaintiff carried the alleged
unauthorized construction on the said open land.
05. Concluding my discussions, I am of the opinion that taking
into account the restricted scope of this suit, presence of the applicant is
not required to effectually adjudicate upon the suit issues. She is neither
necessary nor proper party to this suit and the suit can be decided even
in her absence. Rather, in my view, the only necessary and proper party
to adjudicate upon the suit issues would be the defendants/MCGM, who
issued the said notice and passed the consequential Order. The plaintiff,
being the '
dominus-litis' of the suit can't be forced to add any person as
party to his suit, unless it is held, keeping in view the pleadings and the
reliefs claimed therein, that the person sought to be added as party is a
necessary party and without his presence neither the suit can proceed
nor reliefs can be granted. It is only then such a person can be allowed
to be party, else the suit will have to be dismissed for non-impleadment
of a necessary party. However, this is not the position in this matter. On
this background, I answered point No.1 in the negative and in answer to
point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 145/2020 stands dismissed.
-- 3 of 5 --
CNR NO. : MHCC01-000967- 2020 .4. CH/S No. 145/2020 in
L.C. Suit No. 673/2022.
(ii). Chamber Summons No. 145/2020 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 22.09.2022. City Civil Court, Mumbai.
Dictated on : 22.09.2022.
Transcribed on : 23.09.2022.
Checked & Signed on : 26.09.2022.
-- 4 of 5 --
CNR NO. : MHCC01-000967- 2020 .5. CH/S No. 145/2020 in
L.C. Suit No. 673/2022.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29.09.2022 at 05.00 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 22.09.2022.
Judgment/Order signed by P.O. on 26.09.2022.
Judgment/Order uploaded on 29.09.2022.
-- 5 of 5 --