Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C.S. No. 420 of 2020
CNR:MHCC01-002907-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.420 of 2020
IN
L.C.SUIT NO. 255 of 2020
Mohammed Gafooruddin Siddiqui .. Plaintiff
V/s.
The Municipal Corporation of
Greater Mumbai & Anr. .. Defendants
And
Mohammed Azimuddin Siddiqui .. Applicant
Appearance:-
Adv. Shukla h/f Adv. A.R. Pandey for plaintiff.
Adv. L.K. Tripathi for applicant.
Adv. A. K. Nandandwar for defendants.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 18/10/2024.
ORDER
By this Chamber Summons, the applicant prayed for
directing the plaintiff to join him as a defendant No.3 with further
directions to carry out consequential amendment in the body of the
plaint.
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2 C.S. No. 420 of 2020
2 Perused affidavit in support of the Chamber Summons and
affidavit in reply. Heard both sides.
3 The learned advocate for the applicant vehemently
submitted that in an appeal before the Hon’ble High Court against the
order when the applicant applied as an intervener to oppose the ad-
interim relief, the Hon’ble High Court directed the applicant to file
appropriate proceeding. The learned advocate for the applicant
submitted that the applicant is the co-owner in the said property and at
his instance, action has been initiated by the MCGM against the
plaintiff. The learned advocate for the applicant also drew attention of
this Court towards the copies of earlier proceedings which are filed and
sub judice in the Civil Court. The learned advocate for the applicant
placed reliance on-
1) Arun R. Singh & Anr. V/s. Municipal Corporation of Greater Mumbai
& Ors., Writ Petition No. 14207 of 2018, dt. 13/12/2018.
4 On the other hand, the learned advocate for the plaintiff
has submitted that the scope of this suit is limited only to the extent of
deciding the legality of the impugned notice and order issued by the
defendant/MCGM towards the unauthorized construction as alleged in
the impugned notice. The entire suit premises has been gifted to the
wife of the plaintiff in the year 1996. The learned advocate for the
plaintiff vehemently submitted that it is not a suit for partition between
family members and the dispute regarding the rights of the plaintiff is
already pending in a suit filed by the applicant in the Civil Court.
Merely, the applicant is the complainant does not mean that he is the
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3 C.S. No. 420 of 2020
necessary party to the suit. The learned advocate for the plaintiff placed
reliance on--
1) Mohamed Hussain Gulam Ali Shariffi V/s. Municipal Corporation of
Greater Bombay & Ors. MANU/SC/1710/2016.
2) Shriman Kishor son of Chandrakant Urane V/s. City of Nagpur
Corporation, Writ Petition No. 937 of 2017, dt. 04/04/2018.
3) Deju Somaya Salian V/s. The Municipal Corporation of Gr. Mumbai
& Ors., Writ Petition No. 7123 of 2018, dt. 24/09/2018
4) Santosh S/o Hanumant Salunkhe V/s. The Municipal Commissioner
& Anr., Writ Petition No. 3398 of 2018, dt. 04/05/2018.
5) Sandeep Hiralal Bafna V/s. Municipal Corporation of Greater
Mumbai & Anr., Writ Petition No. 5525 of 2018, dt. 18/01/2019.
6) Maneesh Bawa and Ors. V/s. Narsingh Jasrajji Rajpurohit and Anr.
Writ Petition No. 2585 of 2020, dt. 07/04/2021.
7) Mrs. Sulbha Devendra Kokate V/s. Mrs. Surekha Kokate & Ors., Writ
Petition No. 1587 of 2020 dt. 30/03/2021.
8) Smt. Swapnal Satish Savkar & Anr.V/s. The Municipal Corporation of
Greater Mumbai & Ors., Writ Petition No. 3495 of 2022, dt.
28/03/2022.
9) Mr. Ashok Bansidhar Agarwal V/s. The State of Maharashtra & Ors.
Writ Petition No. 6563 of 2017,dt. 22nd July 2019.
5 In the light of respective submissions, I have carefully gone
through the entire facts and circumstances on record. I have also
carefully considered the guidelines and ratio laid down in the case laws
cited supra. It is not in dispute that the applicant is real brother of the
plaintiff. It is also not in dispute that the action under Section 351 has
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4 C.S. No. 420 of 2020
been initiated by the MCGM in respect of the suit premises on the
complaint of the applicant. However, while exercising the discretion
under Rule 10(2) of Order I of the Code of Civil Procedure, it has to be
determined whether the applicant is a proper or necessary party to the
suit. Upon cumulative consideration of the guidelines and ratio laid
down in the case laws cited supra, it can safely be culled out that
necessary party is one who ought to have been joined and in whose
absence no effective decree could be passed. He is bound by the result
and action of the Court. On the other hand, a property party though not
a necessary party, his presence enables the Court to adjudicate
completely, effectively and adequately upon all maters in dispute.
6 In the aforesaid backdrop, if the aforesaid facts and
circumstances on record are taken into consideration, it reveals that
contention of the applicant is that the plaintiff has forged and fabricated
the documents of the said building and the property situated therein to
carry out illegalities. Applicant has also mentioned regarding filing of
L.C. Suit No. 1291 of 2014 and Writ Petition No. 4153 of 2014 as well
as registering of FIR against the applicant and his wife in view of
directions given by the Hon’ble High Court. It is also the contention of
the applicant that he has obtained a sanctioned plan, IOD,
Commencement Certificate and Occupation Certificate regarding the
reconstruction of the said building by the plaintiff under RTI Act.
Therefore, it is transpired that the plaintiff and his wife have got
sanctioned the plan by manipulating and forging the documents and
made illegal construction of the said building in collusion with the
officers of the BMC.
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5 C.S. No. 420 of 2020
7 Upon close scrutiny of the copies of documents tendered on
record, it reveals that the suit property was originally stood in the name
of Smt. Sadathbi Fayazuddin Siddiqui who was the mother of the
plaintiff and applicant. It can also be seen from the copies of documents
that in or around 2007 the plaintiff has redeveloped the said property
and constructed a new building i.e. the suit premises. When the
applicant demanded his share in the property which was originally
owned by his mother, at that time, in view of refusal by the plaintiff,
applicant came to know about the fraud played by the plaintiff and his
wife by executing forged and false Gift Deed in the name of his wife.
8 It is thus, apparent from the aforesaid facts and
circumstances that the applicant is claiming to be co-owner in the said
property and he has already filed a suit for partition and separate
possession to the extent of his share in the said property. So far as the
ownership and rights of the parties are concerned, already separate suit
is filed by the applicant which is sub judice. On the other hand, in this
suit considering the reliefs, as prayed, there is no need to go into the
ownership rights of the parties. The action under Section 351 is
initiated by the MCGM against the said property on the complaint of the
applicant. In these circumstances, it cannot be said that the rights of
the plaintiff will be directly affected, if it is found that the unauthorized
construction is liable to be demolished. In these circumstances, merely
because the applicant is the complainant is not a ground to allow the
applicant to participate in the suit. In fact, MCGM who is the competent
authority for the approval of any construction is already the party to the
suit. If the applicant wants to assist in the adjudication of the
proceeding, he can appear as a witness for the Corporation. In the light
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6 C.S. No. 420 of 2020
of aforesaid facts, ratio laid down in a case cited supra by the applicant
is not applicable to the facts of this case. Therefore, in my view, in the
present suit, the applicant is neither a proper party nor he is necessary
party to the suit. Thus, following order is passed.
ORDER
1. Chamber Summons No. 420 of 2020 stands dismissed.
2 Chamber Summons stands disposed of accordingly.
Date:18/10/2024. (R. M. Mishra )
Dictated on :18/10/2024. Judge, City Civil Court,
Typed on :18/10/2024. Gr.Mumbai.
Signed on :19/10/2024.
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7 C.S. No. 420 of 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19/10/2024. 12.07 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
18/10/2024.
JUDGMENT/ORDER signed by P.O.on 19/10/2024.
JUDGMENT/ORDER uploaded on 19/10/2024.
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