Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order on C/S.542-19 in Su.No.1619-11
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON CHAMBER SUMMONS NO.542 OF 2019
(CNR No. MHCC01-002664-2019)
IN
L.C. SUIT NO. 1619 OF 2011
Hemant D. Chheda ]...Plaintiff
Versus
Mumbai Municipal Corporation & Orf. ]...Defendant
And
1. Nitin Vifanji Mepani
2. Jayafhree Satifh Mepani
3. Rajefh Vifanji Mepani ]...Applicantf/
Propofed Defendantf
=====================================
Appearances:-
Ld. Advocate Mr.Gomef for the Applicantf,
Ld. Advocate Mr.S.R.Pande for Plaintif,
Ld. Adv. Mrf.Hajare for defendant/MCGM.
=====================================
CORAM : HIS HONOUR JUDGE
SHRI U.J. MORE
(Court Room no. 8)
DATED : 14th February, 2020
ORDER ON CHAMBER SUMMONS NO.542 OF 2019
1. Applicant move the Chamber Summonf for carrying
the amendment in the body of the plaint. It if ftated that fuit
if fled by the challenging defendant corporation notice iffued
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2 Order on C/S.542-19 in Su.No.1619-11
under fection 351 of MMC Act dated 07.10.2010 and
impugned order dated 23.02.2011 and alfo notice dated
08.06.2011.
2. Plaintif fled reply along-iith affdavit. It if ftated
that there if no caufe of action againft the applicant af a
landlord. There if no allegation againft the landlord that he
haf carried out permanent addition and alteration to the fuit
premifef. Plaintif haf to maintain the fuit premifef in the
fame condition af it iaf handover to him at the time of
creating tendency in refpect of the fuit premifef. It if further
ftated that, for deciding legality of demolition notice prefence
of applicantf i.e. landlord are not required. If at all the
applicant have any grievancef the applicantf can fled
feparate fuit.
3. Ld.Adv.Mr.Gomef for the applicant pithily fubmitted
that, He if landlord having rent receiptf from the plaintif. Suit
if fled for unauthorieed conftruction. Suit if fled for
challenging notice for unauthorieed conftruction and the fuit
premifef oined by the applicant. Therefore, applicant if a
neceffary party.
4. Ld.Adv.Mrf.Hajare for the Defendant MCGM ftrongly
objected to thif Chamber Summonf.
5. Ld.Adv.Mr.S.R.Dube for the plaintif pithily
fubmitted that, application if not maintainable under the
limitation act. Applicantf have no role in a difpute betieen in
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3 Order on C/S.542-19 in Su.No.1619-11
corporation and plaintif. Iffuef are framed on 12.07.2016.
Hence, application be rejected.
6. Heard, all the partief at length.
7. I iould like to focuf a light on the provifion of order
6 rule 17 of C.P.C.
“Amendment of pleadings – The
Court may at any stage of the
proceedings allow either party to alter or
amend his pleadings in such manner and
on such terms as may be just, and all
such amendments shall be made as may
be necessary for the purpose of
determining the real questions in
controversy between the parties:
Provided that no application for
amendment shall be allowed after the
trial has commenced, unless the Court
comes to the conclusion that in spite of
due diligence, the party could not have
raised the matter before the
commencement of trial.”
8. The challenge in thif fuit if to the notice dated
07.10.2010 iffuef under fection 351 of the Mumbai Municipal
Corporation Act, in refpect of the unauthorieed conftruction
faid to be carried out by the plaintif. The applicant landlord
claimf that plaintif haf carried out conftruction on the land
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4 Order on C/S.542-19 in Su.No.1619-11
on the premifef oin by him af a landlord applicant claimf
before oiner of the fuit property and it if urged that the
conftruction carried out by plaintif if a encroachment.
9. The plaint paragraph pleadingf in plaint tranfpiref
iith the fuit property if a part of Dimubai Niiaf,
fubfequently it haf conftructed up-to the 3rd foor in 1984.
Plaintif inducted af tenant. Para 9 of pleadingf of paint
tranfpiref the allegationf againft the landlord i.e. the
applicant af folloif:
10. It tranfpiref that, due to fudden appreciation of
property rate, the landlord iantf to remove their tenant fo
that landlord can redevelop the building act get beneft af per
hif iifh. The plaintif ftatef that againft the landlord extortion
cafe if pending. The plaintif further ftatef that noi the
landlord iith the help of offcerf of defendant trying to harfh
the plaintif, fo that plaintif can eafily vacate the fuit
premifef af per hif termf and condition. The plaintif ftatef
that the offcerf of defendant in connivance iith landlord and
to help him noi iffued notice under fection 351 of Mumbai
Municipal Act againft the all tenantf of Dimubai Niiaf.
11. The allegationf af made in para No.9 tranfpiref
that the plaintif commit a cafe that, defendant in collufion
iith landlord i.e. thif applicant haf malfdely iffued notice
u/fec.351 of MMC Act to the plaintif. If there are fuch feriouf
allegationf of under any claufe of defendant corporation and
the applicant ihy the applicant cannot be make a neceffary
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party on the bafif of fuch allegationf by plaintif himfelf. Per
contra the plaintif cannot fuch due hold ftand if if he haf
ftrong objection to implead him landlord af a party then the
allegationf in para 9 requiref to here the fide of the landlord.
Confidering the factf and circumftancef of cafe it if true that,
the iffuef iere framed of 12.07.2016. But I don’t feel any
malafde intention at the inftance of defendant to implead him
af a party delay and protracted thif litigation.
12. Even if fuit if decreed in favour of plaintif holding
the conftruction if legal, authorieed and in accordance iith
the fanction plan. It iill be in juftice on the landlord to decide
the controverfial iffuef iithout hearing fince and until
landlord implead af a party.
13. It cannot be poffible the cafe lai on ihich the
plaintif relied on Writ Petition 6122 of 2013 hif Lordfhip
fpecifcally obferved that, iith due refpect it tranfpiref from
the cafe fated that the factf are that
“which is respondent who wants
to implead as a party was a society rather
landlord in this case the applicant is a
landlord not a society.”
Therefore, the factf of thif citation cafe are not
applicable to the cafe in hand.
14. Ld. Adv.Mr.S.R.Pande relied on citation af folloif:
i) Mohammed Hussain Gulam Ali Sharif
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Vs. Municipal Corporation of Greater
Bombay & Ors. In 2017(6) ALL MR 420
(S.C) (SUPREME COURT)
ii) Ramesh Shama Kumbhar & Anr. Vs.
Sudhakar Budha Kumbhar & Ors. In
(2013) MHLJ 81 (BOMBAY HIGH COURT)
I go through above cafe laif thefe tio above cafe
laif factf are not identical to the cafe in hand.
15. Applicant place reliance on the citation partief
betieen the Mulraj Khatau and Sons Ltd. Mumbai Vs.
Nagesh Samar Bahadur Singh and Anr. In W.P.No.11524
of 2017 decided on 07.03.2018 (Bombay). Our Hon’ble
Bombay High Court.
“Necessary party- impleadment
- unauthorized construction by tenant -
owner of property is necessary and
proper party since decision of suit is
definitely going to afect interest of
owner who is landlord of suit property –
Even if he files separate suit against
tenant, chances of conficting decisions
arise – Owner is very much interest being
landlord of suit property to ensure that
such unauthorized construction does not
take place on his property - Therefore,
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7 Order on C/S.542-19 in Su.No.1619-11
impleadment of owner of suit land is
necessary.”
16. Thuf, in fhort it if obferved by the Hon’ble Bombay
High Court that, the landlord if neceffary and proper party in
hif abfence if any Judgment paff by the Court. It iill be a
giving chance to implead of proceeding. Therefore, In thif
cafe landlord if neceffary and proper party. It iill not be loff
on the part of plaintif. If landlord added af a party. Fair
opportunity iill be given to the plaintif to conteft the claim of
the applicant in the capacity of landlord. Therefore,
confidering ratio laid doin by Hon’ble High Court af
difcuffed (Supra) Chamber Summonf needf to be alloied.
Accordingly, I proceed to paff folloiing order:
O R D E R
1. Chamber fummonf No.542 of 2019 in termf of prayer
claufe (a) if made abfolute.
2. Plaintif to carry out amendment iithin tio ieekf.
3. Chamber Summonf No.542 of 2019 if difpofed of
accordingly.
(U.J. More)
Judge,
Date : 14.02.2020 City Civil Court, Gr. Mumbai
Dictated on : 14.02.2020
Tranfcribed on : 14.02.2020
Signed by HHJ on : 14.02.2020
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8 Order on C/S.542-19 in Su.No.1619-11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.02.2020 at 11.00 a.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryaianfhi
Name of the Judge (With
Court Room no.)
HHJ Shri. U.J.More.
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
14.02.2020
JUDGMENT/ORDER figned by
P.O. on
14.02.2020
JUDGMENT/ORDER uploaded
on
17.02.2020
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