Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.550/19 (L.C.S. No.317/19)
MHCC010026832019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS No.550 OF 2019
IN
LONG CAUSE SUIT No.317/2019
Shri. Nirabai Tukaram Patil … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai ... Defendant
A N D
Shri. Mohan s/o. Vithoba Gawand ... Intervening party/
Interested party
Appearance :-
Mr. Amar Bhat, Advocate for plaintiff.
Mrs. Honmane, Advocate for defendant.
Mr. S. G. Shirsath, Advocate for applicant/Intervening party.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 13/11/2024.
O R D E R
. The applicant has taken out present Chamber Summons
under Order-I Rule-10 of The Code of Civil Procedure (in short the C. P.
C.) for impleading him as party defendant to suit.
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2 C/S. No.550/19 (L.C.S. No.317/19)
2] Facts of the Chamber Summons can be summarized as
follows :-
The third party applicant made various complaints to the
B.M.C. against unauthorized construction carried out by the plaintiff
and his children on C. T. S. No.8/12 which is owned by him and the
B.M.C. has initiated action against the plaintiff on the basis of his
complaint. It is stated that the plaintiff has carried out unauthorized
construction upon the land owned by applicant bearing C. T. S. No.
8/12 to 8/18. The plaintiff is having old house in C. T. S. No. 8/19 and
disputed structure is separate from it. The plaintiff systematically used
documents of old house for new unauthorized structure. The applicant
is a third party and he is required to be heard in suit as the plaintiff has
carried out unauthorized construction on suit property. Therefore, the
applicant is proper and necessary party. Therefore, the applicant be
permitted to add as defendant.
3] The plaintiff opposed Chamber Summons by filing reply. He
denied contentions in Chamber Summons in toto. It is further stated
that suit is to challenge notice under Section 351 of The Mumbai
Municipal Corporation Act and not in respect of right, title and interest
and hence the applicant is not necessary and proper party to suit. The
applicant is noway concerned with the impugned notice. The plaintiff
denied ownership of the applicant over the land on which suit structure
is situated. It is further stated that the applicant is claiming right over
the land on which suit structure is situated, in that case, he has separate
remedy. In the present suit the issue before the Court is whether the
impugned notice is legal and for that purpose presence of applicant is
not necessary, therefore, Chamber Summons be dismissed.
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3 C/S. No.550/19 (L.C.S. No.317/19)
4] Perused Chamber Summons, reply in support thereto.
Record and proceeding. Heard learned advocates for the parties.
5] Learned advocates for the parties made submissions as per
their pleadings.
6] The applicant has taken out Chamber Summons under
Order-I Rule-10 (2) of the C. P. C. impleading him as a party defendant
to suit. Order-I Rule-10 (2) of the C. P. C. empowers the Court that it
may at any stage of the proceeding, either upon or without an
application of either party, may add or struck out the party improperly
joined whether as a plaintiff or a defendant and add any person as party
or defendant whose presence may be necessary in order to adjudicate
upon and settle question involved in suit effectively and completely.
7] The suit is filed to challenge notice issued by defendant
B.M.C. under Section 351 of The Mumbai Municipal Corporation Act (in
short the M. M. C. Act) to unauthorized construction as per Schedule
annexed to notice. Thus, the issue before the Court is whether the
impugned notice is legal/valid. It is well settled that the plaintiff being
the master of suit cannot be forced to join a person against his wish. It
is also well settled that in a suit to challenge notice issued under Section
351 of the M. M. C. Act owner of property is the necessary party. It is
the contention of the applicant that he is the owner of the land bearing
C. T. S. No.8/12 on which notice structure is standing. On the contrary,
the plaintiff came with a case that structure is situated on C. T. S. No.
8/19. It is contention of the applicant that the targeted structure is
situated on C. T. S. No.8/12 and on the other hand, it is plaintiff's case
that structure is situated on C. T. S. No.8/19. Thus, there appears
boundary dispute between the applicant and plaintiff and for that
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4 C/S. No.550/19 (L.C.S. No.317/19)
purpose the applicant may file a separate suit and said issue of
boundary cannot be resolved in present suit, which is filed to challenge
notice under Section 351 of the M. M. C. Act. In the circumstances, I
hold that the applicant is not proper and necessary party to suit. Hence
the order :-
O R D E R
Chamber Summons is rejected.
Date : 13/11/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
05/12/2024 03:05 p. m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 13/11/2024
ORDER Typed on 04/12/2024
ORDER signed by P. O. on 05/12/2024
ORDER uploaded on 05/12/2024
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