Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum no.443-18 in L.C.SUIT no.427-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO. 443 OF 2018
(CNR no. MHCC010031462018)
IN
L.C. SUIT NO. 427 OF 2018
(CNR no. MHCC010021792018)
Mr. Mehboob Khan ]... Applicant
Islam Gymkhana ]... Plaintiff
Versus
The Commissioner, Municipal Corporation of
Gr. Mumbai & Anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 29th November, 2018.
Mr. Narvankar, advocate for applicant.
Mr. Nachan, advocate for plaintiff.
Mr. Dhumale, advocate for defendant nos. 1 & 2.
ORDER
1. The applicant has taken out this chamber summons seeking
of implead him as party defendant, by contending that the defendant
corporation has initiated action against the plaintiff and impugned in
this suit has been so initiated on the basis of various complaints made
by applicant. According to the applicant, the plaintiff has carried out
unauthorized construction and is running illegal activities. The plaintiff
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2 Ch/sum no.443-18 in L.C.SUIT no.427-18
has made averments in the plaint about malafide against the defendant
corporation, the Collector and indirectly also on applicant. The
defendant corporation in its reply also explained the role of applicant in
issuing the notices.
2. Heard respective advocates, the learned advocate for the
defendant corporation submitted to the orders of this Court. Whereas
the learned advocate for applicant his presence is necessary for the
proper and sound disposal of the suit as the defendant corporation
initiated action against plaintiff on the basis of complaints made by the
applicant, who was one of the members of the plaintiff and whose
membership was terminated illegally by the plaintiff.
3. On the other hand, the learned advocate for the plaintiff
submits that the applicant has no role to play in this suit. He has no
direct interest in the subject matter. His membership has been
terminated in 2013 and therefore, the decree which would be passed in
this suit will not affect him. According to him, the applicant is
threatening the plaintiff of dire consequences by using the state
machinery and putting under pressure to achieve his own object. He has
placed reliance on the ratios laid down in the case of Aijaz vs.
M.C.G.M. reported in 2012(2) All M.R. 171 and Ramesh vs.
M.C.G.M. reported in 1992(2) Supreme Court cases 524.
4. In reply, learned advocate for the applicant submits that
aforesaid authorities are not applicable to the present set of facts as
they were related to the private properties. The property involved in
this suit is a public property leased out to the plaintiff and due to efflux
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3 Ch/sum no.443-18 in L.C.SUIT no.427-18
of time the status of the plaintiff would only be a lessee holding over.
Considering the rival submissions and the copies of documents and
ratios under citations, it appears that the defendant corporation has
initiated action under Section 351 and 354A of the M.M.C. Act against
the plaintiff at the complaints made by the applicant. The defendant has
also filed a compilation of such complaints and photographs.
5. The Hon’ble Supreme Court in the case of Ramesh (Supra)
has laid down that a necessary party is one without whom no order can
be made effectively. Proper party is one in whose absences an effective
order can be made but whose presence is necessary for complete and
final decision on question involved in the proceedings. Only reason
which makes it necessary to make a person a party to an action is so
that he should be bound by the result of action and the question to be
settled can not be settled effectively and completely unless he is a party.
Person must be directly and legally interested party. The result of
litigation would affect him legally by curtailing his legal rights. A person
whose object is to prosecute his own cause of action can not be so
joined. The Hon’ble Supreme Court has laid down test “may the order
for which the plaintiff is asking, directly affect the intervenor in
enjoyment of his rights. The reliance was placed on the ratio in the case
of Dollfus Mieget Campagnie S.A. vs. Bank of England reported in
1950(2) All England Reporter 605.”
6. Considering the aforesaid ratio and the facts narrated
before me, applicant has not shown that he is either legally interested
party or a necessary or proper party to the suit and in his absence if the
suit is decided he would be bound by decree. At the most the applicant
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4 Ch/sum no.443-18 in L.C.SUIT no.427-18
would be a witness for the defendant corporation so far as the
complaints and photographs filed by him. In the circumstances the
following order is passed :
ORDER
1. The Chamber summons no. 443 of 2018 is dismissed.
2. Parties to bear their own costs of chamber summons.
3. Certified copy is expedited.
(Dr. M.S. Deshpande)
AdHoc Judge,
Date : 29.11.2018 City Civil Court, Mumbai.
Dictated on : 29.11.2018
Transcribed on : 30.11.2018
Checked by HHJ on : 30.11.2018
Signed by HHJ on : 30.11.2018
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5 Ch/sum no.443-18 in L.C.SUIT no.427-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 30.11.2018 at 5.45 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
29/11/2018
JUDGMENT/ORDER signed by
P.O. on
30/11/2018
JUDGMENT/ORDER uploaded
on
30/11/2018
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