Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. : MHCC01-000969-2020. .1. CH/S No. 144/2020 in
L.C. Suit No. 672/2022.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 144 OF 2020.
IN
L.C. SUIT NO. 672 OF 2022.
Sunil Harishchandra 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
the suit ?………………....….................... ...No.
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(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 by constructing one
small hut (looking temporary). Gradually, he made it of pakka masonry
and expanded the same upon the BMC gutter. Further, on 10.01.2019,
he encroached upon the open land, lying in front of the applicant, in an
unlawful manner, without securing any permission from the defendants.
Hence, she informed about this unauthorized construction work, carried
by the plaintiff, by filing complaint with the defendants on 10.01.2019.
On her complaint, they issued the notice to the plaintiff and also passed
the Speaking Order. Even, on 02.01.2020, they demolished the partial
(balcony) of the suit premises. The plaintiff's NM came to be dismissed
on 06.11.2019 and the appeal, preferred against the said Order before
the Hon’ble High Court, also stood dismissed on 26.11.2019. Further,
the plaintiff improperly described this suit premises. On this backdrop,
the applicant is affected party due to the illegal acts of the plaintiff and
she needs to be added as 'defendant No. 3' in the suit. In support of her
contentions, the applicant relied upon the copies of complaints, lodged
with the defendants, and colored photographs. Contrarily, the plaintiff
contended that the applicant herself carried an illegal construction and
he filed separate suit against her and the defendants and it is pending in
the Court. Whereas, he didn’t carry any unauthorized constructions. 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. 05.02.2019, issued
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U/s. 351 of the MMC Act, and the consequential Order dtd. 13.03.2019
being bad in law. Since inception, the plaintiff came with a case that he
acquired his rights, in the suit preemies, from owner of the said Chawl -
Mr. Janadhan Mahadeo Patil. He is in its occupation from last 30 years.
The said Chawl is more than 150 years old and at present, it is occupied
by many persons, including the plaintiff and this applicant. However, his
neighbors lodged false reports, with the defendants, to have carried the
illegal construction. Further, this applicant along-with one Mr. Shivalkar
lodged such report against him and therefore, the defendant issued this
notice. Considering the plaint averments, it can safely be concluded that
it has the limited scope. Here, the issues would be revolving around the
propriety of the defendants to issue this 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 defendants issued
the notice, however, only on that count, she is not required to be joined
as party to this suit. That apart, even as per her own 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
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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. 144/2020 stands dismissed.
(ii). Chamber Summons No. 144/2020 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.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29.09.2022 at 05.05 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.
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L.C. Suit No. 672/2022.
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