Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C.S.No.580 of 2019
CNR: MHCC010029132019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO.580 OF 2019
IN
L.C.SUIT NO.1713 OF 2018
1. Salil R. Kinkhabwala & Anr. .. Applicants
In the matter between
Aditya Ravi Chanrai
S/O Ravi Laju Chanrai .. Plaintiff
V/s.
1. Asst. Municipal Commissioner & Anr. ..Defendants
Appearance:
Adv. Dalal for applicants.
Adv. Reshma Ravi for plaintiff.
Adv. Bibhishan Sutar for MCGM/defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 21/01/2023
ORDER
1 Applicant No.1 and 2 have taken out this Chamber
Summons for their impleadment in the suit as party defendants and for
grant of injunction till final disposal of Notice of Motion restraining
plaintiff from in any manner carrying out any civil, electrical, plumbing
including interior/renovation work in the suit flat.
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2 The Chamber summons has been replied by the plaintiff
opposing its contents.
3 Heard learned advocate for applicants as well as learned
advocate for plaintiff at length. Perused the record.
4 The applicants have submitted that in the Chamber
Summons that they are colandlords alongwith Mrs.Manorama J.
Saraiya of the suit property known as Swastik Court, 132, Maharshi
Karve Road, Mumbai. The original landlords were Deval Vinay Saraiya
and Manorama J. Saraiya. Deval Saraiya expired on dt.12/11/2010.
He bequeathed 50% share in said building to them as per his Will and
they have obtained Probate on said Will by the order of Hon'ble Bombay
High Court in Probate Petition No.67 of 2013. Since they are landlords
of the suit property, they will be affected by any order passed by the
Court with regard to notice structure.
5 It is further stated that father of plaintiff Ravi Chandrai has
filed S.C. Suit No.841 of 2018 against the applicant No.1 and the
applicants have filed RAE Suit No.546 of 2018 against Laju Chanrai and
Ravi Chanrai for eviction before Small Causes Court. The Colandlords
and tenant relationship is not disputed by the plaintiff. Being co
owners of the notice structure, they are absolutely necessary to be
joined as party defendants in the present suit. The notice action has
been initiated on the basis of the complaint made by applicant No.2.
Order is passed on dt.04/07/2018 against Ravi Chanrai against whom
the impugned notice U/s.351 of MMC was issued. It was not issued
against the plaintiff, hence, plaintiff do not have locus standi to file
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present suit. Above all, plaintiff has suppressed all these material facts
from the Court. He had filed Caveat in the Court so as to get notice of
this suit. However, in spite of receipt of Caveat and even having very
knowledge of pendency of above suits, the applicants were not joined as
party defendants in the present suit. The plaintiff has dishonest and
ulterior motive in not adding the applicants as party defendants in the
suit. The plaintiff is trying to get adinterim relief behind the back of
colandlords. Applicants are proper and necessary parties to the suit and
are required to be impleaded as party defendants for the above
reasons.
6 The plaintiff has replied that the Chamber Summons in
misconceived, bad in law and filed with malafide intention of
pressurizing the plaintiff to buy the premises from the applicants for an
unreasonable consideration. They have already intimidated two/three
tenants in the same building into buying their respective flats from the
applicants at exorbitant prices. This is nothing but a pressuring tactics
on the part of applicants to compel them to buy the flat or to vacate it.
They have been occupying the notice structure for past 5060 years.
They cannot be thrown away from the flats by the applicants.
7 Above all, it is said that the applicants who claims to be the
landlords of the suit premises have never heeded any request of plaintiff
to carry out tenantable repairs or to redevelop the old dilapidated
premises at all. The plaintiff has approached the Corporation for getting
permission to carry out the tenantable repairs. Therefore, applicants
have filed false complaint to the Corporation against them.
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8 This is a suit for declaration and permanent injunction
against the Corporation. The suits filed by the applicants and present
plaintiff have different cause of action. On the basis of filing of said
suits, applicants cannot be added in the suit as party defendants. This is
a suit against notice action initiated by the defendant Corporation.
Therefore, Municipal Corporation is the only necessary party. The
unscrupulous landlords ought not be joined as party to the suit. Hence,
plaintiff prayed for dismissal of the Chamber Summons.
9 It is argued that suits have been filed seeking quashing and
setting aside Section 351 notice and subsequent order issued by
Municipal Corporation. They have not challenged any action on the
part of applicants. No relief is claimed against them. Therefore, the
applicants are not the necessary or proper parties to the suit. Hence,
the Chamber Summons may be dismissed.
10 On perusal of record, it reveals that the applicants while
tendering this Chamber summons for their impleadment have filed
certain documents on record including the order passed in the Notice of
Motion in the present suit, the complaint moved by the applicants to the
plaintiff as well as defendant Corporation, the copy of sanction plan,
correspondence made with the defendant Corporation, the impugned
notice, speaking order dt.04/07/2018 etc.
11 The applicants have tendered the written submissions also.
12 Order 1 Rule 10 of Civil Procedure Code is the specific
provision under which the necessary and proper party impleadment has
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been described. It is pertinent to note that the applicants have not filed
any documents showing 50% ownership over the suit building though
they spoke about the Probate proceeding and Will of original owner
Deval Saraiya. However, the contents of the reply given by the plaintiff
itself shows that coownership of applicants is not denied by them.
Above all, it is not disputed that the notice action has been initiated on
the basis of complaint lodged by present applicants. Secondly, it is not
disputed that being colandlords, the applicants have filed RAE Suit
No.546 of 2018 against the father of plaintiff to whom the impugned
notice U/s.351 of MMC has been issued and the plaintiff has filed suit
No.841 of 2018 against applicant No.1 Salil Kinkhabwala. All these
facts make it clear that the applicants are the coowners of the suit
building in which the notice structure situates. Now the question is
whether applicants being coowners are necessary or proper party to the
present suit regarding unauthorised construction or not. On that point,
the advocate for plaintiff has tendered different authorities of Hon'ble
Apex Court and High Court to justify the submission that applicants are
not proper or necessary party to the suit.
13 The advocate for plaintiff drew my attention to the
authority in the case of Gurmit Singh Bhatia V/s. Kiran Kant
Robinson and Ors. in Civil Appeal No.55225523 of 2019. In this
authority, it has been observed and held that two testes are to be
satisfied for determining the question who is a necessary party. The test
are (1) there must be a right to some relief against such party in respect of
the controversies involved in the proceedings; (2) no effective decree can be
passed in the absence of such party.
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14 It is pertinent to note that said authority is in respect of
impleadment of the necessary and proper parties in the suit for specific
performance of contract. Advocate for the plaintiff further relied upon
the authority in the case of Ramesh Hiranand Kundanmal v.s
Municipal Corporation of Greater Bombay and Ors., 1992 SCR(2)1.
In this authority, the meaning of 'necessary and proper party' has been
elaborated. It is held therein that the plaintiff is no doubt dominus litis
and is not bound to sue every possible adverse claimant in the same suit.
He He may choose to implead only those persons as defendants against
whom he wishes to proceed. However, the Court may at any stage of the
suit direct addition of parties. A party can be joined as defendant every
though the plaintiff does not think that he has any cause of action against
him. The question of impleadment of a party to be decided on the touch
stone of Order 1 Rule 10 of Code of Civil Procedure, which provides that
only a necessary or a proper party may be added'.
15 Further, in the authority in the case of Herbertsons Ltd
V/s. Kishore Rajaram Chhabria and Ors. (2000)102 BOMLR 269, it
is held that 'a necessary party is, as has been stated in Order 1 Rule
10(2), of the Civil Procedure Code, itself, a party whose addition is
absolutely necessary in order to enable the Court to adjudicate effectively
and completely on the matter in controversy between the parties. That has
been interpreted, in my opinion rightly, to mean that no decree could be
passed in the suit without affecting the rights of the party who is sought to
be added and the presence of that party is necessary for an effectual
adjudication of the questions involved in the suit. It is only when both
those conditions are fulfilled that a party could be said to be a necessary
party to a suit'.
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16 In the case of Razia Begum V/s. Sahebzadi Anwar Begum
and Ors. 1958 AIR 886. It has been held that 'Rule 10 of Order 1 of
Code of Civil Procedure, is generally not one of initial jurisdiction of the
court, but of a judicial discretion which has to be exercised in view of all
the facts and circumstances of a particular case; but in some cases, it may
raise controversies as to the power of the court, in contradistinction to its
inherent jurisdiction, or, in other words, of jurisdiction in the limited sense
in which it is used in Section 115 of Code. In a suit relating to property in
order that a person may be added as a party, he should have a direct
interest as distinguished from a commercial interest in the subject matter
of the litigation'.
17 Materially, the learned advocate for the plaintiff placed
reliance on the authority in the case of Mohamed Hussain Gulam Ali
Shariffi V/s. Municipal Corporation of Greater Bombay & Ors., Civil
Appeal No...... of 2016(arising out of SLP(C) No.35321 of 2016. In
this authority, it is held that 'having regard to the nature of controversy,
which is the subject matter of the suit, respondent Nos.2 and 3 are neither
necessary nor proper parties. As would be clear from mere perusal of the
plaint, the basic question, which is required to be decided in the suit, is
whether notice issued under Section 351 of the Act by respondent
No.1(Corporation) to the appellant is legally valid or not. To decide this
question, in our considered opinion, the only necessary and proper party
to the suit is the Mumbai Municipal Corporation, Greater Mumbai i.e.,
Respondent no.1 who has issued such notice, and for deciding this question
either way, the presence of respondent Nos.2 and 3 is not at all required.
In order words, the suit can be decided even in the absence of respondent
Nos.2 and 3. It is a settled principle of law, which does not need any
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authority to support the principle, that the plaintiff being a dominus litis
cannot be forced to add any person as party to his suit unless it is held
keeping in keeping in view the pleadings and the relief claimed therein
that a person sought to be added as party is a necessary party and without
his presence neither the suit can proceed and nor the relief can be granted.
It is only then such person can be allowed to become party, else the suit
will have to be dismissed for nonimpleadment of such necessary party'.
18 Relying upon this authority, learned advocate for the
plaintiff made submission that the applicants are neither necessary nor
the proper parties to the suit. Hence, they cannot be added in the suit
as defendant Nos.3 and 4.
19 It is pertinent to note that I have gone through all the
authorities cited supra by learned advocate for the plaintiff.
Undoubtedly, all the authorities are landmark on the point of addition
of necessary and proper party in the suit and it is settled principle of
law that plaintiff being dominus litis cannot be forced to add any
person as party to his suit unless the person sought to be added as party
is a necessary party and without his presence neither the suit can
proceed and nor the relief can be granted.
20 Further, it is also necessary to note that learned advocate
for the applicants has also placed reliance on the authority in the case of
M/s. Aliji Monoji & Co. V/s. Lalji Mavji & Ors., AIR 1997 SC 64. It
has been held therein that 'since the landlord has a direct and substantial
interest, his right, title and interest in the property property demised to the
tenant would be in jeopardy. Pursuant to the notice U/s.351 of MMC Act,
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landlord is proper party to the suit for perpetual injunction against
MCGM'. It is further contended that relying upon said judgment, in the
matter between Adam A. Sorathia & Anr. V/s. Municipal Corporation
of Greater Bombay & Anr. 2002(4) Bom.C.R.419, it has held that
'where presence of respondent is necessary for complete and effectual
adjudication of the dispute, though no reliefs is claimed, against him, he is
a property party. It is further held therein that landlords have direct and
substantial interest in the demised premises, the demolition of which is
sought by notice U/s.351 and in the event of its demolition, their rights
are bound to be affected. It is held that landlords or the owners of the
premises would be proper persons to throw adequate light on the
controversy and the landlords are the proper parties though the reliefs are
sought only against the Corporation'.
21 Further, it is clarified by the advocate for the applicants
that in the case of Mohamed Hussain Gulam Ali Shariffi cited supra,
applicants who sought to be impleaded in the suit were claiming
interest and ownership rights in the suit house and civil suit for specific
performance of agreement filed by the applicants therein in relation to
the suit house was pending. Therefore, those applicants were not
allowed to be added as necessary or proper party to the suit. It is stated
that relying on the judgment of Hon'ble Apex Court in the case of M/s.
Aliji Monoji & Co. cited supra, in the matter between Maroti
Parbhatrao & Ors. V/s. Muktabai w/o Marotrao and Ors.2020
(1)Mh.L.J. 199, it is held in para 16 that 'as the last precedent, until
the view taken earlier is set aside by the Larger Bench and there are
contrary view with coequal Benches, then earlier view will prevail'.
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22 It is pertinent to note that in the case of M/s. Aliji Monoji
& Co. cited supra, it has been held that owner or landlord is the proper
party to the suit for perpetual injunction against Corporation in respect
of notice U/s.351 of MMC Act. For the aforesaid reasons, it is visible
that the authority in the case of Mohamed Hussain Gulam Ali Shariffi
and M/s. Aliji Monoji & Co. cited supra are on different footings.
23 Here, it is undisputed that as the applicants are coowners
of the suit property, their ownership is not disputed even by the
plaintiff. Per contra, record and the earlier proceedings in between the
parties shows that applicants are the coowners and their status is not
challenged by the present plaintiff. The notice has been issued U/s.351
of MMC Act to the notice structure of which, the applicants are
landlords. The impugned notice has been challenged by the tenant i.e.
plaintiff. The landlord must be in a position to clarify whether notice
structure is legally made or not. He ought to be in custody of all
material documents. Above all, the rights and interest of applicants in
the property are definitely going to be affected by this proceedings. The
landlord is in a position to throw adequate light on the controversy and
therefore, I hold that being colandlord, the applicants are property
parties, though reliefs are not sought against them.
24 So far as the grant of adinterim relief against plaintiff is
concerned, the same cannot be allowed on the application of
defendant/applicants in plaintiff's suit without substantial reasons. At
present juncture, I am not inclined to grant any such relief as prayed.
25 Hence, considering the discussion made above, I have
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arrived at the conclusion that the applicants are the proper party to the
present suit and therefore, their implement in the suit is justified.
Hence, I hold that Chamber Summons tendered by the applicants
deserves to be made partly absolute. Resultantly, I proceed to pass
following order.
ORDER
1 Chamber Summons No.580 of 2019 is partly made
absolute.
2 Applicants are permitted to intervene in the present suit.
3 Plaintiff is directed to implead the applicants as defendant
No.3 and 4 in the suit by carrying out necessary amendment in the suit
plaint on or before next date.
4 Chamber Summons is disposed off
Date:21/01/2023.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Dictated on :21/01/2023. Gr.Mumbai.
Typed on :30/01/2023.
Signed on :30/01/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/02/2023 05.50 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
21/01/2023.
JUDGMENT/ORDER signed by P.O.on 30/01/2023.
JUDGMENT/ORDER uploaded on 02/02/2023.
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