Order 1

Order Details: Chamber summons
Pdf Text: - 1 -
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO. 155 OF 2018
IN
L.C. SUIT NO. 1500 OF 2017
(CNR NO.MHCC010012852018)
Mr. Javed Khan .. .. Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 16th October, 2018
Mr. Pratap Singh, learned advocate for plaintiff.
Mr. Holamangi, learned advocate for Applicant.
O R D E R
1. This Chamber summons is moved by intervener 3rd party
Mr. Javed Khan praying for permitting intervener to become defendant
in the suit for restraining plaintiff from inducting any 3rd party in the
unauthorized floors allegedly constructed by plaintiff. In support of
Chamber Summons intervener applicant has filed affidavit contending
that she is tenant in suit premises No.2, Ismail Tajuddin Chawl,
Hajikaramat Road, Qureshi Nagar, Kurla (East), Mumbai 400 070, in
all there are eight rooms in the said chawl and the structure of chawl is
consisting of only ground floor. It is alleged that plaintiff has filed false
suit with regard to suit property. Further plaintiff has falsely contended
that there are three upper floors in suit premises bearing CTS No.237,
237 1 to 16, Survey No.275, Hissa No.4, part with Assessment bearing
-- 1 of 7 --
- 2 -
No.L743 (SB) at 46/5LV of village and Taluka, Kurla, Qureshi Nagar,
Kurla (East), Mumbai.
2. It is contention of intervener that she is residing in the said
property since last several years and there was no upper floor as alleged
in the said property. It is alleged that certain unknown persons have
started threatening all the occupants/tenants of the chawl if those
occupants raise any objection, they will have to face dire consequences.
It is alleged that plaintiff has made false statement in plaint because no
upper floors were existing on the ground floor of the chawl. According
to the intervener she is necessary party to the suit to disprove the
plaintiff's claim, hence, intervener has prayed to allow the Chamber
Summons and further prayed for giving directions to plaintiff as
intervener to become as defendant in this suit.
3. Plaintiff has resisted the Chamber Summons by filing say of
Chamber Summons itself contending that third party applicant has no
locus standi to join the suit as party. It is alleged that third party
Applicant has filed this Chamber Summons with malafide contention
even though the applicant have no rights, interest or title in respect of
suit premises. It is contended that in view of various judgments and
Hon'ble High Court and Apex Court Chamber Summons is not tenable.
Hence, it should be dismissed.
4. Heard intervener Advocate Mr. Holsmagi and plaintiff's
advocate Mr. Pratap Singh. Today intervener has filed list of documents
and copies of documents like Aadhar Card, Pan Card, Election identity
card, Ration Card, Water bill, Rent receipt, light bill, N.C. report filed
with Chembur police station etc. On perusal of those documents it is
-- 2 of 7 --
- 3 -
noticed that address of applicant is shown as room No.2, Ismail
Tajuddin Chawl, Shamshan Road, Near Chistiya Masjid, Qureshi Nagar,
Kurla (East), Mumbai. Formats of rent receipts is in Gujarati language
and formats of rent receipt in Urdu language. Heard applicant's
advocate Mr. Holamagi and plaintiff's advocate Mr. Pratap Singh. It is
argued on behalf of the intervener applicant that intervener applicant is
tenant in suit premises therefore, she is necessary party to the suit.
5. Plaintiff's advocate Mr. Pratap Singh argued that all the
documents filed on record show that third party applicant is not tenant
but Mazahar Khan is the tenant of room from suit premises, hence
according to Pratap Singh intervener applicant can not be impleaded as
defendant in this suit. Advocate Mr. Pratap Singh placed reliance on
the case between Mohamed Hussain Gulam Ali Shariffi Versus
Municipal Corporation of Greater Bombay and Others reported in
LEX(SC)2016 1262 in which it is observed that:
"it is a settled principle of law, which does not
need any authority to support the principle, that the
plaintiff being a dominus litis cannot be forced to add
any person as party to his suit unless it is held keeping
in view the pleadings and the relief claimed therein
that a person sought to be added as party is a
necessary party and without his presence neither the
suit can proceed and nor the relief can be granted. It
is only then such person can be allowed to become
party, else the suit will have to be dismissed for non
impleadment of such necessary party. Such does not
appear to be a case here."
"We do not find that the presence of respondent
Nos.2 and 3 in the facts of this case is required for
deciding the legality of notice impugned in the suit on
merits because the dispute centers around the question
-- 3 of 7 --
- 4 -
of legality and validity of the notice which, as
mentioned above, arises between respondent No.1,
who has issued the notice, and the person to whom it
is given, i.e., appellant".
"In the suit in question, the Court is not called
upon to adjudicate the rights between the appellant
and respondents Nos.2 and 3 in relation to the suit
house. Any such dispute, if arises, the same can be
decided in the separate suit, which is pending between
the parties or may be filed, if required, by the parties
against each other but such dispute cannot be tried on
the cause of action pleaded in the present such by the
appellant where the lis is essentially between the
appellant (plaintiff) and respondent No.1. Merely
because the suit house is the subject matter between
all the parties is no ground to get the dispute arising
between the parties settled in one suit regardless of the
nature of cause of action on which the suit is
founded."
6. In reply Advocate Mr. Holamagi representing intervener
applicant submitted that intervener applicant is wife of Mazhar Khan, in
whose name the rent receipts, water bill and few light bills are received.
It is further alleged that Mazhar Khan is temporarily not residing with
intervener applicant but plaintiff is intending to demolish the chawl in
question thereby intervener applicant will be affected. Hence,
according to the intervener applicant she is necessary party. It is further
argued that the case law cited by plaintiff is not applicable to the facts
of present case. On perusal of the plaint it is noticed that plaintiff has
challenged the notice issued by the Defendant BMC under Section 351
of MMC Act and speaking order dated 19.5.2017 passed on the above
referred notice under Section 351 of MMC Act. I have given serious
consideration to the arguments advanced and all the documents filed on
record. In the light of observations of Hon'ble Apex Court in the case
-- 4 of 7 --
- 5 -
of Mohamed Hussain Gulam Ali Shariffi Versus Municipal
Corporation of Greater Bombay and Others reported in
LEX(SC)2016 1262 it becomes clear that disputed notice is issued by
BMC against the plaintiff and cause of action for filing this suit arose
after issuing said notice by defendant BMC. Intervener applicant is
contending that she is possessing one of the room from suit premises as
tenant. The rights between intervener applicant and her landlord who
is alleged to be plaintiff of this suit cannot be entertained and decided
this suit because Hon'ble Apex Court in the case cited supra has clearly
mentioned that determination of right is not necessary, of the parties
who are not necessary for decision of legality of notice issued by the
BMC: The facts of the case of Mohamed Hussain Gulam Ali Shariffi
Versus Municipal Corporation of Greater Bombay and Others are
squarely applicable to the facts of present case mainly because in this
suit notice issued by BMC 351 of MMC Act challenged by plaintiff and
intervener applicant has come with the stand that she is tenant in the
suit premises. In such circumstances, I find that intervener applicant
cannot be impleaded as defendant in this suit. Further as observed
about Hon'ble Apex Court she can file separate suit if required about her
rights related to suit property. She can file suit in Competent Court
about right in respect of suit property.
7. It is pertinent to note here that already one suit is filed with
Stamp No.1469 of 2018 by intervener applicant challenging the
demolition of suit premises praying that the construction made by Bilal
Tajuddin and Javed Khan plaintiff of this suit is unauthorized and for
directions to Municipal Corporation to demolish said unauthorized
construction. Thus, already intervener applicant has filed separate suit
for adjudication of her rights. On that count also she is not necessary
-- 5 of 7 --
- 6 -
party to this suit and she can get adjudicated her rights in respect of suit
property in the separate suit filed by her. Hence I proceed to pass
following order.
O R D E R
1. Chamber Summons No.155/2018 stands rejected, however no
order as to costs.
Sd/
(K.P.Nandedkar)
Judge,
City Civil Court,
16/10/2018 Gr.Bombay
Dictated on : 16.10.2018
Transcribed on: 17.10.2018
Signed by HHJ on: 19.10.2018
-- 6 of 7 --
- 7 -
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20.10.2018 03.40 PM V.U. Pawar (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 16/10/2018
Judgment/order signed by P.O on 19/10/2018
Judgment/order uploaded on 20/10/2018
-- 7 of 7 --