Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS 363 OF 2018
IN
L.C. SUIT NO. 825 OF 2018
Shamji Dayabhai Shah Educational Trust .. Plaintiff
Versus
Municipal Commissioner and Ors. .. Defendants.
And
Pariwar CoOp. Housing Society .. Applicant.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 15th February, 2019
Mr. Dalal , ld. adv. for plaintiff.
Mr. Malwankar, ld. adv. for defendant /BMC.
Mr. Murthy, ld. adv. for applicant.
O R D E R
1. This Ch/s is taken out by applicant Pariwar Cooperative
Housing Society for direction to plaintiffs to add applicant as defendant
in the suit. Applicant's Secretary Mr. Jaywant Hari Patil has filed his
affidavit in support of Ch/s. In said affidavit it is contended that
applicant is the owner of the plot having purchased entire property
from the official Liquidator under registered deed of conveyance.
Disputed construction is situated on the land belonging to the applicant
and applicant came to know that plaintiffs have filed this suit and they
have moved the Court for ad interim relief seeking injunction against
BMC in respect of alleged unauthorised construction carried out by
plaintiffs. However, plaintiffs were seeking an order of injunction
without joining the applicant as party. Therefore applicant intends to
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intervene the matter and seeks to implead it as party defendant to place
the relevant facts which are suppressed by plaintiffs.
2. It is contended that applicant being owner of the land in
question will be adversely affected by any order that may be passed in
present proceedings. Hence applicants are necessary party to be joined
in the matter. It is contended that suit bearing No. 3470/2004 was
filed by plaintiffs, this applicant and Corporation contending that some
times in 1983 to 1985 BMC had demolished building/rooms which
plaintiffs had constructed without sanctioned plan or Municipal
permission. Court has given a clear finding after full trial that the
structure claimed by plaintiff is unauthorised. Applicant is a party to
said suit filed by plaintiff. Further applicant has complained to
corporation to the effect that corporation is not discharging its statutory
duty of demolishing unauthorised construction. It is alleged that
plaintiffs have suppressed the fact that they have converted part of
school rooms into gymnasium and plaintiffs have let out it for
commercial purpose. Plaintiffs wanted to put up certain construction
in the open land belonging to applicant and possessed by applicant and
applicant was required to move the Court by filing suit no. 3470/2004.
In said suit during N/m hearing and after trial court recorded findings
that applicant is in possession of open ground. It is alleged that
plaintiffs have not come before the Court with clean hands as plaintiffs
have suppressed material facts from the Court. Hence according to
applicant in order to show conduct of plaintiffs, applicant is necessary
party to the suit.
3. Plaintiffs have resisted the Ch/s by filing affidavit of
plaintiffs Trustee Mr. Haresh Shah. In said affidavit it is contended
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that Ch/s is not maintainable and applicant is not necessary party to
present suit. It is alleged that applicant is unnecessarily making false
complaints against plaintiffs, even though plaintiffs have obtained suit
plot on lease from original owner. In fact applicant is not having any
document of sale from original owner. Applicant has purported to
have purchased the entire property from Official Liquidator under
registered deed of conveyance. However Official Liquidator was
appointed as Liquidator of company known as Devi Dayal Tube
Industries Ltd. Said company was never owner of suit plot and suit
plot was originally owned by Clara Mendonca who has by agreement
for lease granted the lease of property to plaintiffs.
4. It is contended that present suit is filed against Corporation
for declaration of notice under sec. 351 of BMC Act as null and void and
for injunction restraining BMC from demolition of suit structures.
Therefore present suit is clearly for the reliefs against BMC as impugned
notice is issued by BMC. Applicant has no concern in any way
regarding the same and the matter is between plaintiffs and
corporation. It is contended that applicant cannot be permitted to be
party to this suit as it is not necessary party to the suit.
5. I have heard applicant's advocate Mr. Murti and plaintiff's
advocate Mr. Dalal at length. Applicant's advocate referred para no.
4.7, 4.9 and 4.10 of the plaint and submitted that allegations against
applicant are made in those paragraphs. It is pointed out that in suit
no. 3470/2004 applicant was defendant alongwith BMC and in para no.
33 of the judgment of said suit, Court has observed that applicant is
possessing the open plot referred in said suit. Hence according to
applicant's advocate, applicant is necessary party to this suit and Ch/s
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is necessary to be allowed. It is argued that judgment of this suit will
affect rights of applicant and therefore applicant is necessary party to
the suit. Lastly applicant's advocate argued that facts of this case differ
than the facts of the case of Mohammad Hussain Gulam Ali Shariffi
because in present matter earlier suit was filed and in matter before
Hon'ble Apex Court there was no any such earlier suit. In support of
his arguments applicant's advocate placed reliance in the case between
M/s Aliji Momonji and Company Vs. Lalji Mavji and others reported
in 1996 SCALE (5) 485 in which it is observed that
“ 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 Municipal Corporation for perpetual injunction restraining the
Municipal Corporation from demolition of building.”
6. In reply plaintiff's advocate argued that judgment of
Mohammad Hussain Gulam Ali Shariffi is squarely applicable to this
case because in this suit legality of disputed notice is challenged and
authorisation of notice structure will have to be proved by plaintiffs
himself. Therefore applicant has no role to play in the matter for
proving authorisation or unauthorisation of notice structure. Therefore
according to plaintiff's advocate Ch/s is necessary to be dismissed. In
support of his argument plaintiff's advocate placed reliance on
Mohammad Hussain Gulam Ali Shariffi Vs Municipal Corporation of
Greater Bombay and Ors. reported in 2017 (6) All MR 420. In said
case it is observed by Hon'ble Apex Court that
“ In our considered opinion, having regard to the nature
of the controversy, which is the subject matter of the
suit, respondent Nos. 2 and 3 are neither necessary nor
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proper parties. As would be clear from mere perusal of
the plaint, the basic question, which is required to be
decided in the suit, is whether notice issued Under
Section 351 of the Act by Respondent No. 1
(Corporation) to the Appellant is legally valid or not
(see prayer(a) in the plaint – page 251 of Volume II of
S.L.P. Paper Book).
To decide this question, in our considered opinion, the
only necessary and proper party to the suit is the
Mumbai Municipal Corporation, Greater Mumbai, i.e.,
Respondent No. 1, who has issued such notice, and for
deciding this question either way, the presence of
Respondent Nos. 2 and 3 is not at all required. In other
words, the suit can be decided even in the absence of
Respondent Nos. 2 and 3.
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.
We do not find that the presence of Respondent Nos. 2
and 3 in the facts of this case is required for deciding
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the legality of notice impugned in the suit on merits
because the dispute centers around the question 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 suit 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 not 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”.
7. I have perused the documents annexed to the affidavit
filed in support of Ch/s. In those documents there are xerox copies of
news items published in various news papers in which reference to the
demolition of plaintiff's building is given. It seems that in the year
1983 to 1985, BMC had demolished some part of plaintiff's building
and therefore news was published to that effect. Applicant has also
filed the copy of deposition of one of the witness from suit no.
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3470/2004. The copy of deposition is not complete therefore this
court is unable to understand that said copy is of evidence/ deposition
of which person and said person is witness of which party.
8. After giving serious consideration to the arguments
advanced, I find that applicant is intending to bring on record the
judgment passed by the Court in suit no. 3470/2004 and applicant is
intending to bring on record admissions given by plaintiff's witness in
said suit. For proving unauthorisation of notice structure
defendant/BMC can obtain certified copy of judgment of Suit no.
3470/04 and BMC can also obtain certified copies of depositions of
plaintiff's witnesses from said suit. Not only it, BMC can refer the
admissions given by plaintiff's witnesses in said suit to the witnesses of
plaintiffs from this suit. Anyhow, as defendant BMC has issued
disputed notice, definitely BMC will take all necessary steps to prove
the legality of disputed notice. At least it is expectation of the Court
that BMC will take such necessary steps. In such circumstances, for
proving the legality of notice in question only plaintiffs and
defendant/BMC can be necessary party to the suit. Admittedly
applicant has made complaints against alleged unauthorised
construction of plaintiffs and therefore only disputed notice is issued by
BMC as such it becomes clear that BMC is not having blind eye about
complaints of applicant. The disputed notice issued by BMC is
challenged by plaintiffs in this Suit therefore applicant cannot blame
BMC contending that BMC has not taken any action about the
complaints made by applicant. In the light of observations of Hon'ble
Apex Court in the case between Mohammad Hussain Gulam Ali
Shariffi referred supra it becomes clear that dispute about rights of
applicant in respect of suit premises cannot be entertained in this suit
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and proving right, title, interest etc. in respect of suit premises,
applicant may file fresh suit or if previous suit is pending applicant may
agitate his contentions in said suit. Anyhow in the light of observations
of Hon'ble Apex Court, in the case cited supra, applicant can neither be
necessary nor proper party to this suit because dispute of this suit is
centered around legality of notice and as already observed plaintiff will
try its level best to prove the fact that said notice is illegal and BMC will
try its level best to prove the fact that said notice is legal. In such
circumstances, I find that applicant cannot be necessary party to this
suit. Hence I proceed to pass following order.
O R D E R
1. Ch/s No. 363/2018 stands dismissed/ disposed off.
(K.P.Nandedkar)
Judge,
City Civil Court,
15/02/2019 Gr.Bombay
Dictated on : 15.02.2019
Transcribed on : 16.02.2019
Signed by HHJ on :20.02.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
20/02/2019 4.30p.m. Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 15/02/2019
Judgment/order signed by P.O on 20/02/2019
Judgment/order uploaded on 20/02/2019
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