Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order on C/S.217-19 in Su.No.422-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON CHAMBER SUMMONS NO.217 OF 2019
(CNR No. MHCC01-001163-2019)
IN
S.C. SUIT NO. 422 OF 2018
1.Mrs. Pratima Nandlal Thakkar & Anr ]...Plaintiffs
Versus
Municipal Corporation of Greater
Mumbai. ]...Defendants
And
1. Shri. Bhushan Harishchandra Pandit ]
2. Shri. Sanjay Harishchandra Pandit ]
3. Smt. Nutan Ravindra Joshi ]
4. Shri. Subodh Harishchandra Pandit ]...Applicants
============================================================
Appearances:-
Ld. Adv. Ms.Deepali Bosamia for the Applicants.
Ld. Adv. Mr. Suraj Kudalkar for the plaintiff.
Ld. Adv. Mr. Atif Shaikh for defendant/MCGM.
=====================================
CORAM : HIS HONOUR JUDGE
SHRI U.J. MORE
(Court Room no. 8)
DATED : 20th February, 2020
ORDER ON CHAMBER SUMMONS NO.217 OF 2019
1. This is Chamber Summons moved by the applicant with
request to join the applicants as party defendant No.2 to 5. In the Suit
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2 Order on C/S.217-19 in Su.No.422-18
as well as notice of motion and direct them to carry out amendment
and consequential amendment in the above plaint and proceedings.
2. Plaintiff filed reply, It is stated that, applicant is neither
necessary nor proper party to adjudicate impugned notice issued u/s
354 (A) of MMC Act falsely alleging that, the suit premises with
unauthorized structural repair work by demolishing the existing
structure with R.S.J. Member and ladi coba without permission from
the MCGM.
3. Heard, both sides and perused behalf the reply.
4. Ld. Advocate for the applicants submitted that, Mr.Bhusan
Pandit is a grandfather of applicant Mr.Anant Pandurang Pandit. His
predecessor let out property to
‘Shiva Developers’. On his complaint
corporation has issued notice to plaintiff have breach terms of leave
agreement by making unauthorized construction. Therefore, applicants
are necessary and proper parties.
5. Ld. Adv. Kudalkar for plaintiff submitted that, the plaintiff
is a licensee. On 25.10.2018 this Court was pleased to allowed ch/s
No.1932/2018 and accordingly plaintiff no.1 is deleted from the body
of plaint and now only plaintiff no.2 is contented plaintiff as a licensee
of suit premises. Therefore, applicants have no nexus with the suit in
hand.
6. He placed reliance on that the Hon'ble Apex Court has
already held in
Ramesh Hirachand Kundanmal Versus Municipal
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3 Order on C/S.217-19 in Su.No.422-18
Corporation of Greater Bombay and others in (1992) 2 SCC 524, that a
necessary party under order 1 Rule 10 of CPC, 1908 is one without
whom no effective order can be passed and a proper party is one in
whose absence through and effective order cannot be passed without
whose order is necessary for complete and final decision in the matter
as alleged or at all.
7. He also placed reliance on Hon'ble Apex Court has already
held in
Mohd. Hussain Gulam Ali Sharifi Versus Municipal Corporation
of Greater Bombay and others in (2017), 6 All MR 420 (SC).
“In our considered opinion, having regard to the
nature of controversy, which is the subject matter of
the suit, the respondent No.2 and 3 are neither
necessary party nor proper parties. As would be clear
from mere perusal of the plaint the basic question
which is required to decide in the suit, is whether the
notice u/s 351 of the Act by respondent No.1 to the
appellant legally valid or not. To decide this question
in our considered opinion the only necessary and
proper party to the suit is the Mumbai Municipal
Corporation that is the respondent No.1 who has
issued the notice. ”
8. In this particular Case the corporation has issued notice
dtd.24.11.2017 to the plaintiffs, immediately plaintiff reply on the same
date. The corporation was pleased to passed speaking order on
27.11.2017 against the plaintiff. Accordingly, plaintiff has challenge
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4 Order on C/S.217-19 in Su.No.422-18
notice u/s 354 (A) of MMC Act dtd.24.11.2017. It is claimed by the
defendants that they are the co-owners of the suit property. Lessee and
‘Shiva Developers’ have indicted some of the tenants in the suit
property.
9. There was no structure assign by the applicants Predecessor
to lessee or ‘
Shiva developers’ in the lease granted for the 98 years. As
the applicants are co-owners of the suit property they can through the
light while adjudicating the present suit. In short the plaintiff lease with
the
‘Shiva Developers’ and others is challenged by this applicant. It is
admitted fact that notice u/s 354 of MMC Act is controversial issue
which shall be decided on merit between two person one is the plaintiff
and other one is MCGM. Applicant have denied tenancy of plaintiff. It is
further stated that, plaintiff have challenged the notices issued u/sec.
354 (A) of MMC Act. He deny that MMC is alleging that, the suit
premises with unauthorized structural repair work by demolishing the
existing structure with R.S.J. member and ladi coba without permission
is nullity in the eyes of law.
10. The intention of application to show that, notice structure
i.e. unauthorized one but as notice issued by defendant corporation for
unauthorized work carried out by the plaintiff in suit premises and
nothing else. Therefore, it is not require to widen the scope of
adjudication to deal with inter-se dispute between the applicants and
plaintiff. If applicants are not added as a party in the shoe of defendant
plaintiff any order is passed certainly it will not be in-effective and
unexecutable in the light of facts of case
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11. Therefore, in the light of observation as made by the
Hon'ble Supreme Court in the Case of
“Mohd. Hussain Gulam Ali
Sharifi ” It is settled law that to decide the question of notice the
Mumbai Municipal Corporation is the only necessary and proper party.
The ratio is clinchingly applicable to the case in hand. Therefore,
considering fact and circumstances of this case applicants are not
entitled to implead as a party to a suit. Accordingly, I proceed passed
the following order:
O R D E R
Prayer in Chamber Summons (a)(b)(c) are rejected being
devoid of merits.
(U.J. More)
Judge,
Date : 20.02.2020 City Civil Court, Gr. Mumbai
Dictated on : 20.02.2020
Transcribed on : 20.02.2020
Signed by HHJ on : 03.03.2020
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6 Order on C/S.217-19 in Su.No.422-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.03.2020 at 10.30 a.m.
NAME OF TYPIST : Mrs. Amruta Rathod
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More.
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
20.02.2020
JUDGMENT/ORDER signed by
P.O. on
03.03.2020
JUDGMENT/ORDER uploaded
on
04.03.2020
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