Final Order 1

Order Details: Chamber summons
Pdf Text: 18/12/2021
SU.2574/16
CORAM : H.H.J. SHRI S.D. KULKARNI, (C.R.NO.08)
None for plaintiff.
Adv. Mrs. Tondwalkar for Defendant/MCGM is present.
Adv Kajal Chaurasiya for applicant present.
K.B.
L.O.
Adv. Mrs. Tondwalkar for Defendant/MCGM is present.
Adv Kajal Chaurasiya for applicant present.
ORDER ON CHAMBER SUMMONS NO.305 OF 2018
Perused Chamber Summons, affidavit in support thereof,
Heard both the advocates at length.
Applicant by filing this Chamber Summons prayed that the
plaintiff is directed to join the applicant as a party defendant in the
suit.
The advocate for the applicant submitted that the applicant is
residing adjacent to the suit property. The plaintiff has carried out
unauthorized construction and the same is pointed out to the
MCGM. If the unauthorized structure would be collapse the entire
building even structure of the applicant will also collapse therefore,
he is a necessary party to the suit. Applicant has made various
complaints to the defendant / MCGM but the plaintiff and the
defendant in collusion not representing the true and correct facts.
It is alleged by the advocate for the applicant that the
decision of the suit affects on the right of this applicant. The
outcome of the suit will directly affect the interest of the applicant
be adjacent, occupier and tenant of the plaintiff. In this respect the
plaintiff relied on the decision in the case of Arun R. Singh and
Anr. V/s. MCGM Writ petition 14207 of 2018.
The advocate for the plaintiff submitted that the applicant is
one of the tenant of the plaintiff and he is having habit of logging
the frivolous complaints. The dispute between the applicant and the
plaintiff is pending in this Court regarding the shop No.2. It was
decreed and its appeal is pending before the Hon'ble High Court.
Here in this case the notice issued u/s 488 of MMC Act, is
challenged by the present plaintiff therefore, it is a matter in
between the plaintiff and the defendant / MCGM therefore, plaintiff
is neither necessary party nor a proper party. In this respect the
advocate for the plaintiff relied on the decision in the case of Deju
Somaya Salian V/s MCGM in Writ Petition No.7123/2018.
The advocate for the plaintiff further relied on the decision
in the case of Mohamed Hussain Gulam Ali Shariffi V/s. MCGM
and Others in Civil Appeal No. of 2016 (Arising Out of SLP (c)
No.35321 of 2016.
Perused Chamber Summons, reply filed by the plaintiff.
Heard both the advocates at length.
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On going through the record, it reveals that the plaintiff is a
registered partnership firm known as Natraj Cinema. The plaintiff
filed on record the document which shows that the applicant made
various complaints against the plaintiff. The defendant/ MCGM
conducted hearing and passed the order and it is also filed on
record by the plaintiff. It shows that there is a serious dispute in
between the plaintiff and the defendant and because of it matter is
also pending in between them.
Here in this case the fact in issue that whether plaintiff has
constructed unauthorized structure, whether notice issued by the
defendant / MCGM is legal or not. It is come on record that plaintiff
is the owner of the suit premises. It is also admitted that the shop of
the applicant is adjacent to the suit premises. The contention of the
applicant that plaintiff and defendant / MCGM join hands with
each other did not demolish the unauthorized structure and if it is
collapse or fallen down, he will suffer the loss. So whether
construction is authorized or not, whether it is to be demolish or
not, is the authority of the Municipal Commissioner. Considering
the submission of the applicant in my opinion he is not a necessary
party to the suit. In his absence suit could be proceeded and finally
decided. Therefore, the reliance place on record by the applicant of
the orders of the Hon'ble Supreme Court is of no assistance to the
applicant. Necessary party is a person without his presence neither
the suit can be proceeded nor the relief can be granted. Here in this
case applicant not brought on record sufficient material to allow the
chamber summons. Considering this, I pass the following order :
O R D E R
1. The prayer clause (a) in Chamber Summons No.305/2018 is
rejected.
2. The Chamber Summons No.305/2018 is disposed off
accordingly.
Earlier order, if any, to continue till next date.
Adjd. To 15/02/2022 for NM hearing.
Judge
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