Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.408 OF 2020
IN
LONG CAUSE SUIT NO. 3372 OF 2019
Varashree Narayan ]..Plaintiffs.
V/s.
1. Municipal Corporation of Greater ]
Mumbai and others. ]..Defendants.
And
The Dariya Mahal Basement Garage ]
Owners Association. ]..Applicant
(Proposed Defendant No.9)
Appearance:
The plaintiff in person.
Advocate Mrs.Chandramore for defendant No.1.
Advocate Mr. Vyas for defendant No.2.
Advocate Mr. Digamber Thakre for defendant No.3.
Advocate Mr. P.D. Gandhy for defendant Nos.4 and 5 and applicant.
Advocate Mr. Bharat Choudhary for defendant No.8.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 12th NOVEMBER, 2020
ORAL ORDER
This Chamber Summons is taken out by the third party
applicant “The Daria Mahal Basement Garage Owners Association”
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(hereinafter referred as ‘the applicant Association’) praying to implead
it as the defendant No.9 and delete the names of the defendant No.4
and 5. It is purported to be filed under Order-I Rule 10 of the Code of
Civil Procedure,1908. The applicant Association is admittedly not
registered.
2. In the affidavit in support of this Chamber Summons, the
applicant Association has contended that out of 110 members of the
Daria Mahal Basement Garage owners, 76 members have formed their
association on 24.04.2019. While formation of the Association, the
garage owners had started repair work of their respective garages as
they were in dilapidated condition and were not suitable for parking of
their cars. The defendant No.4 and 5, being the members of the
Association were active in maintenance of garages and they were doing
the repair work of the said garages as being the Committee members of
the Association and not in their personal capacity.
3. According to the applicant/Association, the plaintiff was
aware of the formation of the applicant Association, but for her vested
interest and to harass the defendant No.4 and 5, they are impleaded as
the defendants in the suit in their personal capacity. Considering the
reliefs asked in the suit, the applicant/Association shall be a party to the
suit to protect the interest of all 76 members of the Association. The
defendant Nos.4 and 5 have nothing personal in the subject matter of
the suit and the applicant/Association is competent to protect the
interest of all its members including the defendant Nos. 4 and 5.
Therefore, their names are required to be deleted.
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4. The plaintiff, who is appearing in-person, has contested this
Chamber Summons by filing reply on various grounds. According to her,
the applicant has not filed this application along with an affidavit as
required under Order-I Rule 10 of C.P.C. I find no substance in this
contention as the contents in the Chamber Summons and an affidavit in
support of it makes sufficient compliance of Order-I Rule 10 of C.P.C.
Failure to mention the specific provision of law makes no difference.
5. It is further contended by the plaintiff that one Mr. Jay D.
Rajda claims to be the Chairman of the applicant/Association
representing 76 members. There is no contention of the proposed
defendant No.9 that the said Association is registered nor there is any
contention that it is appearing on behalf of all 76 members in the
representative capacity. There is nothing to show that all 76 members
have authorized it to appear on their behalf. Therefore, Mr. Jay D. Rajda
has no
locus standi to implead himself as the defendant No.9. In this
respect, according to me, during the course of arguments, the learned
advocate for the applicant/Association has admitted that the
Association is not registered. The impleadment of the defendant No. 9 is
not sought in the representative capacity but as the body of persons.
Therefore, the question of leave under Order-I Rule 8 of C.P.C. would
not arise. The question of
locus standi will be dealt with little later.
6. According to the plaintiff, it is settled principle of law that
an unincorporated body is not a legal entity which has no existence in
the eye of law and therefore, it can neither sue nor be sued. The
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applicant seeks to implead itself as the defendant No.9 with
malafide
intention to cover their illegal construction under the garb of tenantable
repairs and to obstruct the early hearing of the plaintiff’s Notice of
Motion and to create third party rights on the basis of unregistered
Association and to grab the Government land. The applicant/
Association is neither necessary nor proper party to the suit. The
plaintiff is the
dominus litus and she has a right to choose who shall be
a party defendant to the suit.
7. Heard Mr. Gandhy, the learned advocate for the applicant/
Association and the plaintiff-in-person. The limited issue involved in this
Chamber Summons is far stretched by the plaintiff in her reply running
to 20 pages and the documents running to further 30 pages, besides a
bunch of several rulings. The substance of the reply is mentioned above
and the rulings cited are to be considered in the context of the issue
under consideration. Undisciplined contentions ignoring the scope and
context of the prayer and the tendency to cite unnecessary rulings shall
not be allowed to waste valuable time of the Court in reproducing all
those contentions and the ratios in those rulings. When the plaintiff
shows a settled position of law and such position is not disputed by the
other side, there is no need to cite the ruling on such point. Therefore,
the rest of grounds raised in the reply are not required to be considered
at this stage, where the question as to whether the the applicant/
Association is or is not to be impleaded as the defendant No.9 is under
consideration. Eventually, if it is ordered to be impleaded, the plaintiff
would have right to raise any such contentions against it, which relate
to the merit of the suit. The learned advocate for the applicant/
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Association does not dispute the settled position of law in the cited
judgments and therefore, the prayer made in this Chamber summons
shall be considered in the light of such position. Therefore, detailed
reference to those cited judgments is not necessary.
8. Basically, the suit claim is based on a decree passed in
favour of the plaintiff who was one of the plaintiffs (plaintiff No.7) in
L.C. Suit No.558 of 2006. By that decree, according to the plaintiff, she
has got protection from demolition of her garage No. 56(II) situated in
Daria Mahal Basement Garages structure constructed by the defendant
No.3/G. Mittal & Sons. The defendant No.1/MCGM had issued
demolition notice dated 12.11.2005 and that was the cause of action for
filing the said suit.
9. It is contended by the plaintiff that the defendant No.4
Mr. Sameer Shah is a rank outsider, encroacher and trespasser on C.S.
No.941, which is a Government land, having no legal rights or title in
the Daria Mahal basement garages, is claiming himself to be the
representative of unregistered body called “The Daria Mahal Basement
Garage Owners Association” along with the defendant No.5/Mr. Sunil
Garodia. It is alleged by the plaintiff that the defendant Nos. 4 and 5, by
joining hands with rest of the defendants are trying to carry illegal
construction by using public funds and are trying to create third party
interest therein for their personal benefit. The plaintiff is apprehending
that the defendants are likely to dispossess the plaintiff from her garage
No. 56(II) in that process and will cause obstruction to her easementory
right to have ingress and egress to the said garage, despite a decree of
this Court in her favour. The plaintiff therefore, has asked the relief of
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injunction against all the defendants not to disturb her possession and
not to obstruct the use of her garage. The defendant Nos.2 to 7 are
sought to be sent to civil prison for alleged contempt of Court. Rest of
the reliefs are asked against the defendant No.1/MCGM.
10. Considering this frame of the suit, the relief of injunction is
a personal remedy invoked by the plaintiff against the defendant Nos.4
and 5. Whatever decree that will be passed in the suit, it will operate in
personum and not in
rem. Understood in this way, the applicant/
Association is the stranger to this litigation. The plaintiff has not alleged
that any member of the applicant/Association except the defendant
Nos.4 and 5 has threatened the plaintiff to dispossess her from her
garage or obstructed her use of the said garage. In the circumstance, the
well settled proposition of law will attract that the plaintiff is the
dominus litus and it is for her to to choose against whom she has to ask
for the reliefs. The applicant/Association has therefore, no
locus standi
to participate in this suit.
11. Secondly, the applicant/Association is admittedly not
registered and therefore, it is not a body corporate. Therefore, it cannot,
under the law, represent its members. The learned advocate for the
applicant/Association submits that in case the applicant/Association is
not allowed to participate in this proceeding, all its 76 members would
be constrained to seek their individual impleadment and that would
ultimately increase the burden on Court. In this respect, it shall be
noted that the Court is for resolution of dispute between the parties and
render justice. It makes no difference whether the dispute is between
two parties or hundred parties. The plaintiff in this suit is not intending
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to raise any dispute against rest of the members of the applicant/
Association. Still, if they want to get impleaded themselves as the
defendants to invite an order of injunction against them as is sought
against the defendant Nos.4 and 5, they are at liberty to try to get them
impleaded. The Court can decide their individual claim independently.
12. Thirdly, the defendant Nos.4 and 5 have not sought their
deletion on the ground that they are mis-joined and they have nothing
personal in the matter and actually, it is the Association of 76 members
who have collective interest in the subject matter of the suit. The third
party unincorporated Association is coming forward to say that we may
be allowed to address the grievance made against the defendant Nos.4
and 5 personally and thereby, enlarge the scope of the suit not against
two defendants but against 76 defendants, which the plaintiff does not
want to make. In fact, the applicant/Association has no
locus standi to
ask for deletion of the names of the defendant No.4 and 5. It is for them
to contest the suit or not.
13. Thus, the applicant/Association is not a body corporate. No
relief is asked by the plaintiff against its members except the defendant
Nos.4 and 5. Therefore, the applicant/Association is neither proper nor
necessary party to the suit. Consequently, the applicant/Association has
no
locus standi either to get impleaded itself as the defendant No.9 nor
to seek deletion of the names of the defendant Nos.4 and 5. The
Chamber Summons is devoid of merit and is liable to be dismissed. In
the result, the following order.
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O R D E R
1. The Chamber Summons No. 408 of 2020
is dismissed.
2. Cost shall follow the result of the suit.
3. The Chamber Summons No.408 of 2020
shall stand disposed of accordingly.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 12/11/2020. Gr. Bombay.
Dictated on : 12/11/2020
Transcribed on : 12/11/2020
Signed on : 12/11/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/11/2020 At 1.00 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
12/11/2020
Judgment/Order signed by P.O. on 12/11/2020
Judgment/Order uploaded on 12/11/2020
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