Final Order 1

Order Details: Chamber summons
Pdf Text: CS 36118 in SU 170614 : 1 : Dt. 04.08.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 361 OF 2018
(CNR NO. MHCC010026122018)
IN
SUIT NO. 1706 OF 2014
(CNR NO. MHCC010064782014)
Sayyed Habibul Rehman Alias Babu ...Plaintiff
Versus
Municipal Corporation Of Greater Mumbai ...Defendant
And
M/s. Shagun Enterprises ...Applicant
CORAM : HER HONOUR JUDGE
SANJASHREE J. GHARAT
(C.R. NO. 08)
DATE : 04.08.2018.
Ld. Adv. Mr. Joshi for Plaintiff.
Ld. Adv. Mrs. Kamble for Defendant / BMC.
Ld. Adv. Mr. Sabnis for Applicant.
ORAL ORDER
This Chamber Summons is taken out by the Applicant
under Order 1 Rule 10 of CPC to implead him as a party to the present
proceeding.
2. It is submitted by the applicant that he is the owner of the
land and building called Matru Chhaya in which the suit structure is
available. He submitted that on his complaint the Corporation initiated
action. Moreover he is the competent person who can point out
unauthorised encroachment carried out by the Plaintiff. Therefore he
prayed that his Chamber Summons be allowed and he be added as a
necessary party to the present proceeding.
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3. The Plaintiff and Defendant not filed any reply to the
Chamber Summons of the Applicant.
4. Heard advocate appearing on behalf of both the parties.
5. The Applicant claims that he is the owner of the property.
Moreover, plaintiff is occupying the suit structure as a tenant. However,
Plaintiff unlawfully and without permission of BMC carried out
extension of the aforesaid shop. Therefore he made several complaints
to the Corporation and considering the complaints made the
Corporation initiated actions by issuing notice u/s. 351 of MMC Act. It
is submitted that since the unauthorised extension is carried out in the
suit building and the notice is issued for demolition of suit structure he
is necessary party to the present proceeding. In support of his
contention he placed reliance on observations made by the Hon'ble
Apex Court in case of Aliji Momonji & Co. versus Lalji Mavji and
Others reported in (1996) 5 Supreme Court Cases 379 in which the
Hon'ble Apex Court observed that where the presence of respondent is
necessary for complete and effectual adjudication of the dispute, though no
relief is sought, he is proper party. Necessary party is one without whose
presence no effective and complete adjudication of the dispute could be
made and no relief granted. The landlord has a direct and substantial
interest in the demise building before the demolition of which Notice u/s.
351 was issued. In the event of its demolition, his rights would materially
be affected. His right, title and interest in the property demised to the
tenant or licensee would be in jeopardy. It may be that the construction
which is sought to be demolished by the Municipal Corporation was made
with or without the consent of the landlord or the lessor. But the
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demolition would undoubtedly materially affect the right, title and interest
in the property of the landlord. Under those circumstances, the landlord
necessarily is a proper party, though the relief is sought for against the
Municipal Corporation for perpetual injunction restraining the Municipal
Corporation from demolition of the building. In this context the question
whether the respondent landlord had only commercial interest in the
property would not arise.
6. The Applicant also placed reliance on following
judgments :
i. Rattiram And Others versus State of Madhya
Pradesh reported in (2012) 4 Supreme Court Cases 516.
ii. Babu Parasu Kaikadi (dead) by LRs. versus Babu
(Dead) Through LRs. reported in (2004) 1 Supreme
Court Cases 681.
iii. Mulraj Khatau and Sons Ltd. Versus Nagesh
Samar Bahadur Singh in Writ Petition No. 11524 of
2017.
iv. Adam A. Sorathia and another versus Municipal
Corporation of Greater Bombay and another reported in
[2001(3) Mh. L.J. 288].
7. Considering the ratio laid down in above referred citation
the Applicant is proper party to the present proceeding. The prayer
made by the applicant is not opposed by the Plaintiff by filing reply.
Therefore the Chamber Summons filed by the Applicant is hereby
allowed. As a result, I proceed to pass following Order :
ORDER
1. Chamber Summons No. 361 of 2018 is allowed
and made absolute in terms of prayer clause (a).
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2. The Applicant be added as Defendant No. 2.
3. The plaintiff is directed to carry out amendment
within 14 days from the date of order.
(SANJASHREE J. GHARAT)
Judge
City Civil Court,
Date : 04.08.2018. Gr. Mumbai.
Typed on : 04.08.2018.
Signed on : 07.08.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07.08.2018 at 4.15 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SMT. SANJASHREE J. GHARAT
(C.R. No.08)
Date of Pronouncement of
JUDGMENT/ ORDER
04.08.2018.
JUDGMENT/ORDER signed by P.O.
on
07.08.2018.
JUDGMENT/ORDER uploaded on 07.08.2018.
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