Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS no. 621-18 in L.C. Suit no.990-17
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 621 OF 2018
(CNR no. MHCC010042162018)
IN
LONG CAUSE SUIT NO. 990 OF 2017
(CNR no. MHCC010029272017)
Mr. Bona Domnick D'Mello ]
residing at Near Roland House, ]
Marouli Village, Marouli Church, ]
R. C. Road, Chembur, Mumbai74 ]...Plaintiff
V/s
1. Municipal Corporation of Greater Mumbai ]
Having its office at Mahapalika Building, ]
Mahapalika Marg, Fort, Mumbai 400 001. ]
2. Asst. Municipal Commissioner ]
M/W ward office Bldg., ]
Sharadbhau Acharya Marg, ]
Near Natraj Cinema, Chembur, ]
Mumbai 400 071. ]...Defendants
And
Christopher Lucas D'Mello ]...Applicant
Appearances:
Ld. Advocate Mr. Kunal Tiwari for plaintiff.
Ld. Advocate Mr. Khandagle for defendant / MCGM.
Ld. Advocate Mr. Ajay Yadav for applicant.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 6th August, 2019
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2 CS no. 621-18 in L.C. Suit no.990-17
O R A L O R D E R
1. By instant Chamber Summons under Order I Rule 10 of The Code
of Civil Procedure, 1908 (hereinafter referred to as "CPC" for brevity)
the applicant prays to add him as defendant no. 3 in the suit. The
applicant alleges that the plaintiff and others have made unauthorized
constructions of huts on the Government land which causes water
logging during rains in the area and the applicant and others have made
various complaints against plaintiff in the past. He has asserted that the
applicant and other villagers should be given an opportunity of hearing
and placing true facts before the Court. The application is objected by
the plaintiff by filling his reply. Ld. Advocate for the plaintiff argues that
there are complaints of extortion against the applicant and the latter is
not necessary party to the instant suit.
2. After careful reading of the plaint it is challenging the acts of
defendants no. 1 and 2/MCGM of giving threats to demolish the suit
premises and he has also prayed for permanent injunction restraining
the defendants from demolishing the suit premises without following
due process of law. It means the Court is called upon to decide whether
the action of the defendant / MCGM causes breach of plaintiff's right
over the suit premises and whether the defendant / MCGM is giving
threat to the plaintiff to demolish the suit premises without following
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3 CS no. 621-18 in L.C. Suit no.990-17
due process of law or not. The defendant / MCGM is a local authority
and it has filed its Written Statement in the suit (Exh.6). Order I Rule 3
of CPC permits the persons to be joined as defendants where (a) any
right to relief in respect of, or arising out of, the same act or transaction
or series of acts or transactions is alleged to exit against such persons,
whether jointly, severally or in the alternative; and (b) if separate suits
were brought against such persons any common question of law or fact
would arise. From bare reading of these provision clause (b) is
depending upon compliance of clause (a). Clause (a) permits the person
to be joined as defendant "if any right to relief in respect, or arising out
of the same act or transaction is alleges to exist against such persons",
whether "jointly or severally or in the alternative". In the instant matter
the applicant wants him to be joined as defendant because he alleges
that the plaintiff's construction of suit premises is illegal and causes
inconvenience / trouble to the applicant or other villagers. That being
so the defendant / MCGM can all him as witness in the suit to support
it’s case that the action is being taken against the plaintiff upon such
complaints of applicants or other villagers. Merely, because the
applicant is facing inconvenience, he need not to be added as party /
defendant particularly when he does not come within purview of Order
I Rule 3 of CPC. For the reasons stated above the applicant’s presence
before the Court is not necessary in Order to enable the Court
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4 CS no. 621-18 in L.C. Suit no.990-17
effectually and completely adjudicate upon or settle all the questions
involved in the suit. Therefore, the chamber summons is liable to be
rejected and following order:
ORDER
1) Chamber Summons No. 621 of 2018 is rejected.
sd/
(C. V. Marathe)
Judge,
Date : 06.08.2019 City Civil Court, Gr. Mumbai.
Dictated on : 06.08.2019
Transcribed on : 06.08.2019
Signed by HHJ on : 09.08.2019
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5 CS no. 621-18 in L.C. Suit no.990-17
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.08.2019 at 5.21 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
06/08/2019
JUDGMENT/ORDER signed by
P.O. on
09/08/2019
JUDGMENT/ORDER uploaded
on
09/08/2019
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