Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 215 OF 2018
CNRMHCC010015472018
IN
L.C.Suit (St. )No.11195 of 2017
L.C.SUIT NO. 526 OF 2018
CNRMHCC010132952017
Dr.Omprakash Jhumerial Tavri )...Plaintiff.
V/s.
1. The Commissioner Municipal Corporation
of Greater Mumbai & Ors. )...Defendants
A N D
Mrs. Ravi Radha Alias Ramadorai )...Applicant
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 24 /04/2018.
Ld. Adv.Pratap Singh for the plaintiff.
Ld. Adv. Mrs. Tadavi for the defendant /BMC
Ld.Adv. Mr. Sohani for the applicant
ORAL ORDER
This chamber summons is taken out by the applicant
Mrs.Ravi Radha alias Ramadorai Radha for directing the plaintiff to add
-- 1 of 7 --
2
her has party defendant no.3 in the suit. The chamber summons is
supported by an affidavit. The plaintiff has strongly opposed the
chamber summons. The defendants no.1 and 2 Municipal Corporation
of Greater Mumbai ( in short 'MCGM' ) has given no objection for
allowing the chamber summons.
2. Heard both the sides.
3. The main suit is preferred challenging the notice issued
under section 354 of the Mumbai Municipal Corporation Act ( in short
'MMC Act') as well as the Technical Advisory Committee Report with
regard to the building known as "Bala Bhavan" situated on plot
bearing no. 296A, Central Avenue Road, Opp. Diamond Garden,
Chembur, Mumbai71, being C.T.S. plot no. 296A, of S.S.III, C.T.S. No.
1611 ( hereinafter for the purpose of brevity, referred to as ' suit
building' ). It is the case of plaintiff that, he is in possession of first
floor, 296A, Central Avenue Road as a tenant and the area is
admeasuring about 550 sq.ft. carpet area.
4. As per the applicant, she is the owner of the premises
comprising of ground plus two floors and three independent garages
situated in the suit building. The MCGM by its notice dated 6th
October, 2013 had notified the applicant for carrying out structural
audit of the suit building. By the structural auditor report dated, 27th
October, 2016, the suit building is certified under C1 category . The
plaintiff alongwith other occupants with the help of engineer had
carried out structural audit and contrary report was given. Therefore,
the matter was referred to Technical Advisory Committee.
The MCGM has then issued the notice under section 354 of the MMC
-- 2 of 7 --
3
Act which is addressed to the applicant who is the owner of the suit
building. It is, therefore pleaded that applicant is the proper and
necessary party and therefore should be joined as party defendant to
the suit.
5. As against this, the learned advocate for the plaintiff
strenuously urged before me that, in view of the ratio laid down in the
recent ruling Mohamed Hussain Gulam Ali Shariffi Vs. Municipal
Corporation of Greater Mumbai; 2017 (6) ALL.M.R. 420 (S.C.) this
chamber summons needs to be dismissed. I have carefully gone
through the aforesaid ruling. It was held by the Hon'ble Supreme Court
that "Mumbai Municipal Corporation Act (1881), S.351 Civil
Procedure Code (1908), Order1 Rule10 Demolition notice
challenge Necessary party Suit filed only against Municipal
Corporation Applicants claiming to have purchased suit property
from plaintiff, sought to be added as defendants Held, for
deciding legality of demolition notice, presence of applicants is not
required Rights between plaintiff and applicants regarding suit
property can be decided in separate suit In instant suit, applicants
are neither necessary nor proper parties".
6. Considering the rival submissions at this stage, it would be
apposite to reproduce the provisions of Order I Rule 10(2) of the Civil
Procedure Code which reads as under:
(2) Court may strike out or add parties: The Court may
at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the
Court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that
-- 3 of 7 --
4
the name of any person who ought to have been joined, whether as
plaintiff or defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in the suit, be
added ".
In the ruling cited supra, it was observed by the Hon'ble
Supreme Court in paragraph no. 15 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 nonimpleadment of such necessary
party. Such does not appear to be a case here ' .
In the case cited supra, the notice under section 351 of the
MMC Act was challenged by the plaintiff, in that eventuality, the
Hon'ble Supreme Court has held that the main grievance of MCGM is
that the plaintiff has made some unauthorised construction in the
building and therefore it was observed in para no.16 that: dispute
centers around the question of legality and validity of the notice arises
only between the plaintiff and the MCGM. However in the case in
hand the notice issued by the MCGM is as per the provisions of section
354 of the MMC Act. The provisions of section 351 of the MMC Act and
the provisions of section 354 of the MMC Act are completely
independent and both cannot be invoked simultaneously. The
provisions of section 351 of the MMC Act states about unauthorised
construction whereas provisions of section 354 of the MMC Act is
-- 4 of 7 --
5
regarding dilapidated conditions of the building. The present suit is
filed by the plaintiff challenging the notice issued under sections 354 of
the MMC Act and which was infact address to the owner that is in name
of the applicant. As the notice under section 354 of the MMC Act is
addressed to the present applicant , therefore ruling of Hon'ble Apex
Court cannot be made applicable to the facts and circumstances of the
present case.
7. From the contentions of the plaint specifically in
paragraph no.6 , there are specific allegations against the applicant. In
the case cited supra, there were no allegations against the applicant.
Therefore also the aforesaid ruling is not applicable to the present case.
The pleadings specifically as per paragraphs no. 5 to 8 of the plaint are
sufficient to incorporate the applicant as a party defendant to the suit
and the presence of applicant as a party defendant is necessary and
proper for effective and final adjudication of the suit. As the applicant
is claiming to the the owner of premises, having right, title and interest
over the suit building i.e. notice structure, therefore, also the aforesaid
ruling is not applicable to the present case.
8. Considering the averments that there were contrary reports
and even the notices were addressed to the applicant , any decision in
the suit would be materially affecting the applicant's right, title and
interest in the suit property. There is no doubt about the fact that the
plaintiff is dominus litis of the suit. However, in the case in hand, and
also considering the guide lines as laid down in WPL No. 1135/14 ( of
the Hon'ble Bombay High Court) and further as the impugned notice
itself is addressed to the applicant , any orders in the suit will be
directly affecting right and interest of the applicant who is claiming to
-- 5 of 7 --
6
be the owner. Therefore in my considered opinion the applicant is
necessary and proper party and needs to be added as party defendant
as per the provisions of OrderI Rule10(2) of the Civil Procedure Code
to the suit. Accordingly, I pass the following order.
ORDER
1. Chamber summons no. 215/18 is allowed and
made absolute in terms of prayer clause (a) and
(b).
2. The plaintiff is directed to carry out the amendment
as per the schedule annexed to the chamber
summons within two weeks and shall serve the
copy of amended plaint upon the defendants within
two weeks thereafter.
3. Chamber Summons is disposed of accordingly.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
Date:24/04/2018. City Civil & Sessions Court,
Gr.Mumbai.
Dictated on :24/04/2018.
Transcribed on :24/04/2018.
Signed on :26/04/2018
-- 6 of 7 --
7
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
26.04.2018 Mrs. V.V.Mhatre
TIME:3.00 noon
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
24.04.2018
JUDGMENT/ORDER signed by
P.O. on
24.042018
JUDGEMENT/ORDER uploaded on 26.04.2018
-- 7 of 7 --