Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order on C/S.546-19 in Su.No.1624-11
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON CHAMBER SUMMONS NO.546 OF 2019
(CNR No. MHCC01-002668-2019)
IN
L.C. SUIT NO. 1624 OF 2011
Jitendra Popatlal Doshi ]...Plaintifs
Versus
Mumbai Municipal Corporation & Ors. ]...Defendant
And
1. Nitin Visanji Mepani ]
2. Jayashree Satish Mepani ]
3. Rajesh Visanji Mepani ]...Applicants/
Proposed Defendants
=====================================
Appearances:-
Ld. Advocate Mr.Gomes for the Applicants,
Ld. Advocate Mr.S.R.Dube for Plaintif,
Ld. Adv. Mrs.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.546 OF 2019
1. Applicant move the Chamber Summons for carrying
the amendment in the body of the plaint. It is stated that suit
is fled by the challenging defendant corporation notice issued
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under section 351 of MMC Act dated 07.10.2010 and
impugned order dated 23.02.2011 and also notice dated
08.07.2011.
2. Plaintif fled reply along-iith affdavit. It is stated
that there is no cause of action against the applicant as a
landlord. There is no allegation against the landlord that he
has carried out permanent addition and alteration to the suit
premises. Plaintif has to maintain the suit premises in the
same condition as it ias handover to him at the time of
creating tendency in respect of the suit premises. It is further
stated that, for deciding legality of demolition notice presence
of applicants i.e. landlord are not required. If at all the
applicant have any grievances the applicants can fled
separate suit.
3. Ld.Adv.Mr.Gomes for the applicant pithily submitted
that, He is landlord having rent receipts from the plaintif. Suit
is fled for unauthorieed construction. Suit is fled for
challenging notice for unauthorieed construction and the suit
premises oined by the applicant. Therefore, applicant is a
necessary party.
4. Ld.Adv.Mrs.Hajare for the Defendant MCGM strongly
objected to this Chamber Summons.
5. Ld.Adv.Mr.S.R.Dube for the plaintif pithily
submitted that, application is not maintainable under the
limitation act. Applicants have no role in a dispute betieen in
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corporation and plaintif. Issues are framed on 12.07.2016.
Hence, application be rejected.
6. Heard, all the parties at length.
7. I iould like to focus a light on the provision 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 this suit is to the notice dated
07.10.2010 issues under section 351 of the Mumbai Municipal
Corporation Act, in respect of the unauthorieed construction
said to be carried out by the plaintif. The applicant landlord
claims that plaintif has carried out construction on the land
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on the premises oin by him as a landlord applicant claims
before oiner of the suit property and it is urged that the
construction carried out by plaintif is a encroachment.
9. The plaint paragraph pleadings in plaint transpires
iith the suit property is a part of Dimubai Niias,
subsequently it has constructed up-to the 3rd foor in 1984.
Plaintif inducted as tenant. Para 9 of pleadings of paint
transpires the allegations against the landlord i.e. the
applicant as follois:
10. It transpires that, due to sudden appreciation of
property rate, the landlord iants to remove their tenant so
that landlord can redevelop the building act get beneft as per
his iish. The plaintif states that against the landlord extortion
case is pending. The plaintif further states that noi the
landlord iith the help of offcers of defendant trying to harsh
the plaintif, so that plaintif can easily vacate the suit
premises as per his terms and condition. The plaintif states
that the offcers of defendant in connivance iith landlord and
to help him noi issued notice under section 351 of Mumbai
Municipal Act against the all tenants of Dimubai Niias.
11. The allegations as made in para No.9 transpires
that the plaintif commit a case that, defendant in collusion
iith landlord i.e. this applicant has malfdely issued notice
u/sec.351 of MMC Act to the plaintif. If there are such serious
allegations of under any clause of defendant corporation and
the applicant ihy the applicant cannot be make a necessary
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party on the basis of such allegations by plaintif himself. Per
contra the plaintif cannot such due hold stand is if he has
strong objection to implead him landlord as a party then the
allegations in para 9 requires to here the side of the landlord.
Considering the facts and circumstances of case it is true that,
the issues iere framed of 12.07.2016. But I don’t feel any
malafde intention at the instance of defendant to implead him
as a party delay and protracted this litigation.
12. Even if suit is decreed in favour of plaintif holding
the construction is legal, authorieed and in accordance iith
the sanction plan. It iill be in justice on the landlord to decide
the controversial issues iithout hearing since and until
landlord implead as a party.
13. It cannot be possible the case lai on ihich the
plaintif relied on Writ Petition 6122 of 2013 his Lordship
specifcally observed that, iith due respect it transpires from
the case sated that the facts 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 facts of this citation case are not
applicable to the case in hand.
14. Ld. Adv.Mr.S.R.Pande relied on citation as follois:
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 case lais these tio above case
lais facts are not identical to the case in hand.
15. Applicant place reliance on the citation parties
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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impleadment of owner of suit land is
necessary.”
16. Thus, in short it is observed by the Hon’ble Bombay
High Court that, the landlord is necessary and proper party in
his absence if any Judgment pass by the Court. It iill be a
giving chance to implead of proceeding. Therefore, In this
case landlord is necessary and proper party. It iill not be loss
on the part of plaintif. If landlord added as a party. Fair
opportunity iill be given to the plaintif to contest the claim of
the applicant in the capacity of landlord. Therefore,
considering ratio laid doin by Hon’ble High Court as
discussed (Supra) Chamber Summons needs to be alloied.
Accordingly, I proceed to pass folloiing order:
O R D E R
1. Chamber summons No.546 of 2019 in terms of prayer
clause (a) is made absolute.
2. Plaintif to carry out amendment iithin tio ieeks.
3. Chamber Summons No.546 of 2019 is disposed of
accordingly.
(U.J. More)
Judge,
Date : 14.02.2020 City Civil Court, Gr. Mumbai
Dictated on : 14.02.2020
Transcribed on : 14.02.2020
Signed by HHJ on : 14.02.2020
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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.Suryaianshi
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 signed by
P.O. on
14.02.2020
JUDGMENT/ORDER uploaded
on
17.02.2020
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