Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/summ.No.265 of 18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 265 OF 2018
CNRMHCC010019052018
IN
L.C.Suit No. 262 OF 2018
CNRMHCC010014492018
Mr. Vinod Kalyanji Bhagat )...Plaintiff
V/s.
1. The Commissioner Municipal Corporation
of Greater Mumbai & Ors. )...Defendants
A N D
Abhay Shah )...Applicant
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 02/05/2018.
Ld. Adv. A.R.Pandey for the plaintiff.
None for the defendants /BMC
Ld.Adv. Mr. Tapan Agrawal for the applicant
ORAL ORDER
This chamber summons is taken out by the applicant
Abhay Shah for adding him as party defendant to long cause suit no.
262 of 2018. The chamber summons is supported by an affidavit. The
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plaintiff has strongly opposed the chamber summons by filing reply on
affidavit. The defendants no.1 and 2 i.e. Municipal Corporation of
Greater Mumbai ( in short 'MCGM' ) has filed the say submitting to the
orders of the Court.
2. Heard both the sides.
3. In the main suit the plaintiff has sought a relief of
declaration that notice issued under section 351 of the Mumbai
Municipal Corporation Act ( in short 'MMC Act' 1888) in respect of his
tenanted premises being shop no. 22 on the ground floor in the building
known as Chowpatty View, situated at plot no. 539, S. V. Road,
opposite Sukh Sagar, Mumbai;( hereinafter for the purpose of brevity,
referred to as ' suit premises ' ) and unauthorised mezzanine floor of the
said tenanted premises and order passed therein (for the purpose of
brevity referred to notice structure by the MCGM ) as bad in law and
illegal.
4. The applicant's case is that, he along with the other tenants
have filed an Writ Petition(L) No. 3636/2017 with a prayer that the
MCGM should demolish the alleged illegal construction. According to
the applicant, the plaintiff has carried out illegal construction and
structural alteration to the suit premises. The applicant being one of
the resident in the said building is affected and fears that the illegal
construction and the structural alteration carried out by the plaintiff
especially the construction of loft/ mezzanine floor supported by
unauthorized flimsy pillars would damage the structural stability and
safety of the building which is more than eighty years old, resulting into
collapse of the same. According to the applicant, the illegal
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construction carried out by the plaintiff is thus seriously endangering
the life of the applicant, his family and other occupants of the building.
4. It is the matter of record that in the Writ petition which is
filed by the applicant and other occupants, the Hon'ble Bombay High
Court on 21st December, 2017 has passed the following order :
"..2. We direct the designated officer of the concerned
Municipal ward to immediately visit the building in question with a view
to ascertain whether illegal construction as alleged in the Petition is in
progress. If the designated officer finds that illegal construction is in
progress, he shall immediately initiate action in accordance with law for
stopping the illegal construction and for removing the illegal construction.
Needless to add that actual action of removal shall not be taken without
giving an opportunity of being heard to the persons affected thereby.
Compliance affidavit to be filed on or before the next date."
5. Accordingly, the MCGM had informed the Hon'ble Bombay
High Court that the notice under section 351 of the MMC Act was
issued by them to the plaintiff and speaking order was also passed by
the defendant no.2 pursuant to the notice under section 351 of the
MMC Act.
6. It is pertinent to note that, the plaintiff has then challenged
the said notice and order by filing the present suit which was initially
alloted to Court room no. 5 and certain orders were passed. Thereafter
the saide suit was transferred to this Court on 7/2/2018. The
applicant's case is that , he checked online portal of City Civil Court
and has preferred this chamber summons for adding him as party
defendant to the suit.
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7. Except the applicant, the other occupants / tenants who
has filed the Writ petition have not preferred any chamber summons for
the joining them as party defendant to the suit.
8. At the very outset , the applicant submitted that, the
plaintiff has suppressed the facts of filing of Writ petition before the
Hon'ble Bombay High Court. It is contended on behalf of the plaintiff
that the plaintiff in the plaint did put it on record that the tenants have
filed the Writ petition and there were certain directions given by the
Hon'ble Bombay High Court to the MCGM for inspecting the suit
premises and to give report with regard to alleged unauthorized
construction. So for as present chamber summons is concerned, it is for
adding of party defendant to suit.
9. Considering the aforesaid submissions, it is necessary to
looked into the provisions of Order I Rule 10 Sub rule (2) of the Code
of Civil Procedure ( in short CPC). It would be apposite to reproduced
the said proviso 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 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 view of the aforesaid proviso, this Court gets the
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jurisdiction to add any person as a party in the only under the
following circumstances.
i) That the person who ought to have been joined whether
the plaintiff or defendant was not joined as a plaintiff or defendant
being the necessary party or;
ii) Who's presence before the Court may be necessary in order
to unable the Court effectively and completely to adjudicate upon and
settle all the questions involved in the suit.
Thus , in view of the provisions of Order I Rule 10 Sub
Rule(2) of the CPC, unless the above two elements are present,no third
party other than necessary or proper party can be joined as a party
defendant to the suit.
10. In my considered opinion and having regard to the nature
of the suit and subject matter of the suit, the basic question or the issue
which is required to be decided is whether the notice issued under
section 351 of the MMC Act and the speaking order passed pursuance
thereto to the notice is legal, valid or not. For deciding this issue, only
necessary and proper parties to the suit is the MCGM. The presence of
applicant is not at all required and even in absence of the applicant, the
suit can be decided. On perusal of the affidavit in support of the
chamber summons, no ground is made out by the applicant to show
that his presence is necessary for, effectively and completely adjudicate
upon and settle all the questions involved in the suit .
11. It is trite law that the plaintiff is a dominus litus and he
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 the
person sought to be added as party is the necessary on proper party
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and without his presence neither the suit can proceed nor the relief can
be granted. it is only then such person can be allowed to become a
party. In the present case the notice and order passed by the MCGM is
challenged and there is no specific allegations against the applicant nor
any relief is claimed against the application. I therefore find no reason
to add the applicant as a party defendant to the suit. The legality of
the impugned notice and order passed by the MCGM can very well be
decided in absence of the applicant.
12. It is contended on behalf of the applicant that, as he was
one of the petitioner in Writ petition and in view of the direction in
Writ petition, the MCGM has issued notice and has passed the order,
therefore he should be added as party defendant to the suit to keep
track on the suit. On careful perusing of the provisions of Order I
Rule10 Sub rule(2) if any person who is petitioner that by itself is not
sufficient reasons to add him as party defendant to the suit. In my
opinion , the Writ petition was filed for seeking certain direction
against the MCGM. The applicant is neither landlord nor the owner of
the suit building. The another contentions of the applicant is that , the
condition of building is not stable. In the case in hand the MCGM has
issued notice under section 351 of the MMC Act and not under section
354A of the MMC Act. In my opinion, the applicant cannot be said to
be either necessary or proper party in view of provisions of Order1
Rule 10 of the CPC.
13. The learned advocate for the applicant vehemently argued
before me that the building is in possession of the Court Receiver of
Hon'ble Bombay High Court and the suit is filed without taking leave of
the Court who has appointed Receiver. These facts were not pleaded
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in the affidavit in support of the chamber summons. Even otherwise,
on perusal of the documents as relied by the applicant (ExhibitB), the
Court Receiver is appointed to collect the rent of the entire property
and to file the suit against the tenants in case the tenants commit the
default of paying the rent and also to take care that the that the
tenants should not create third party right in possession of the suit
premises. Even otherwise the MCGM had also not taken the permission
of the Court Receiver for issuing the impugned notice and order which
is challenged in the suit. At this stage, it is only to be seen whether the
applicant is a necessary or proper party to the present suit and the
other facts which are argued are outside the scope of this chamber
summons.
14. In support of the chamber summons, the learned advocate
for applicant placed reliance of the case Chandrakant Dharma
Bhonu Vs. Pandurang Ramchandra Dandekar and another....
[2004(2) Mh.L.J. 782; wherein it was held by the Hon'ble Bombay
High Court that : " having regard to the provisions of Order 1, Rule 10
of the Code of Civil Procedure, 1908 it cannot be said that the application
for impleadment that was moved on behalf of the petitioner was
misconceived. The petitioner is directly and substantially concerned with
and affected by the proceedings before the City civil Court for more than
one reason. The action of carrying out an allegedly unauthorizsed
construction and the alleged encroachment by the first respondent directly
affects the rights of the petitioner. Secondly, it is at the behest of the
petitioner and in view of the proceedings which were instituted before this
Court, that the Municipal corporation has almost grudgingly resorted to
its statutory powers under the Mumbai Municipal Corporation Act, 1888.
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In the circumstances, the order passed by the learned Trial Judge is
unsustainable and is accordingly quashed and set aside. The Chamber
Summons instituted by the petitioner (Chamber Summons 714 of 2003)
shall stand allowed. Rule is made accordingly absolute in terms of prayer
clauses (a) and (b). Amendment to be carried out within a period of one
week from today ".
15. On perusal of the said ruling, specifically para no.11, it
clearly reveals that in the case cited supra there was unauthorized
construction by the adjoining land owners between the structure of land
owners and the plaintiff in that suit. It was alleged by the petitioners in
the said Judgment that some unauthorized structure was made and
therefore encroachment therein has been affected. In the present case
the applicant is claiming to be the person who is having the premises
on first floor and except the bare words that it might affect the
structural stability of the building which is more than eighty years old,
there is absolutely nothing brought on record by the applicant. Even
otherwise the plaintiff has placed reliance on the recent case of the
Hon'ble Supreme Court i.e. Mohamed Hussain Gulam Ali Shariffi Vs.
Municipal Corporation of Greater Bombay & Ors. 2017(6) ALL MR
420 (S.C.) wherein it was held by the Hon'ble Supreme Court that "
Mumbai Municipal Corporation Act (1881), S.351 Civil P.C.(1908),
O.1 R.10 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
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parties". The said ruling laid downs the law of joining third person as
party in the suit. In view of the law laid down by the Hon'ble Supreme
Court in Mohamed Hussain Gulam Ali Shariffi Vs. Municipal
Corporation of Greater Bombay & Ors. case, ruling cited by the
applicant of the Hon'ble Bombay High Court is not applicable . In view
of the ruling of the Supreme Court , the applicant is neither necessary
nor a proper party to the suit which is between plaintiff and the MCGM
challenging the notice under section 351 of the MMC Act. The ruling of
the Hon'ble Apex Court is squarely applicable to the case in hand and in
view of the same, this chamber summons by the applicant needs to be
rejected. I, therefore pass the following order.
ORDER
1. Chamber summons no. 265/18 is rejected and
disposed of accordingly.
2. Costs in cause.
3. Case to proceed further.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
Date:02/05/2018. City Civil & Sessions Court,
Gr.Mumbai.
Dictated on :02/05/2018.
Transcribed on :03/05/2018.
Signed on :03/05/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
07.05.2018 Mrs. V.V.Mhatre
TIME:12.50. noon
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
02.05.2018
JUDGMENT/ORDER signed by
P.O. on
03.05.2018
JUDGEMENT/ORDER uploaded on 07.05.2018
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