Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s 647 of 2018 : 1 : L.C.Suit.No 978 of 2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons 647 of 2018
IN
L.C.SUIT NO.978 of 2018
MHCC010044342018
M/s Franco India Pharmaceuticals Pvt Ltd ..Plaintiffs
V/s
MCGM ..Defendants
And
Kadir Y Patrawala & Ors ..Applicants
Ld. Advocate D.A.Thorat for Applicant
Ld Advocate N.P.Dalvi for Plaintiffs
Ld Adv. Kumawat for defendant/corporation.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 18th April 2018.
(Court Room No.06)
O R D E R
1. Applicants have taken out this chamber summons under
order 1 rule 10 (2) of the Code of Civil Procedure, 1908, for addition
them as a defendants in the suit.
2 According to applicants, applicants are owners of a plot of
land being plot Nos 1A (Part) and No. 3 of Mahalaxmi Industrial Plots
Estate and bearing Cadestral Survey No. 69(part) of Lower Parel
Division siuate at 12 A, Tulsi Pipe Road, Off: Haines Road, Mahalaxmi,
Mumbai 400 011. On the said plot there exists a building with ground
and four upper floors. The said building is constructed prior to year
1960 and known as "Moosa Haji Patrawala Industrial Estate". The
building is assessed to Municipal Property Taxes. Applicants have paid
the taxes to the corporation.
-- 1 of 10 --
Ch/s 647 of 2018 : 2 : L.C.Suit.No 978 of 2018
3 Applicants contended that a Deed of Lease is executed with
plaintiffs on 30/12/2005 registered under No. BBE164 of 2006 with
SubRegistrar of Assurances in favour of the plaintiffs in respect of the
constructed area of 5400 sq feet of second floor of the suit building for
a period of 13 years from 1st April 2004 to 31st July 2017 at the
monthly rent of Rs.17,550/ with escalation clause. Thereafter again
Deed of Lease dated 7/12/2005 registered under No. BBE111407 of
2005 with SubRegistrar of Assurances in favour of the Plaintiffs in
respect of constructed area of 3500 sq feet of third floor of the suit
building for period of 13 years with effect from 1st April2004, till 31st
March 2017 for monthly rent of Rs.12,985/ with escalation clause is
executed.
4 According to applicants, the Deeds of Lease have expired
by efflux time and that the Plaintiffs have carried out the extensive
additions and alterations in the second and third floor of the suit
building as given to them on lease basis. While carrying out the said
additions and alterations the Plaintiffs have caused structural damage
to the suit building. The photographs of the said structural damage
are taken. Applicants have obtained report dated 16/12/2017 from
M/s H. G. Samant & Associates, Architects in relations to the structural
damage caused by the Plaintiffs to the suit premises. The alterations
and additions as carried out by the Plaintiffs are Fire Hazardous.
Applicants have made various complaints to the defendant corporation
for initiating action for removal of the said alterations. Thereafter,
defendant issued a notice to the plaintiff dated 9/01/2018, under
Section 351 of MMC Act for unauthorized toilets, store room and full
height brick wall. Thereafter, the Designated Officer passed order on
24/01/2018. As per the order of Hon'ble High Court in Writ Petition
-- 2 of 10 --
Ch/s 647 of 2018 : 3 : L.C.Suit.No 978 of 2018
(L) No 164 of 2018, the Hon'ble High Court directed the defendant to
pass fresh order. After considering the reply submitted by plaintiffs and
thereafter the defendant passed order dated 24/1/2018 and pointed
out that the suit additions and alterations are contrary to the
sanctioned plan and directions are given to the plaintiffs to remove the
same.
5 Applicants are coowners of the suit building. Plaintiffs
have carried out unauthorized work of construction within the premises
leased to them without obtaining any permission from the applicants
and/or from the defendants. Any order or judgment that would be
passed in the present suit would directly affect the applicants being the
owners of the suit building. Applicants are necessary as well as proper
party for adjudication of issues involved in the suit. In the event the
applicants are joined as party defendants no. 2 & 5, no harm or loss
thereby would be caused to the plaintiffs. Therefore it is just and
necessary and in the interest of justice that the plaintiffs be directed to
join the applicants as defendants no. 2 to 5 in the plaint and notice of
motion by making amendment. Hence prayed to allow the chamber
summons.
6 Plaintiffs company filed affidavit of Shri V.R.K.
Subramanian. According to plaintiffs, in the normal circumstances the
landlord can be heard in the matter, but this is the case in which
action is taken by the M.M.C on the basis of complaint filed by the
landlord, which is annexed to the suit. Plaintiff company is the tenant
of the suit premises. Plaintiff company is lawfully occupying the
premises mentioned in the cause title of the plaint right from 1963
onwards upon execution of various lease agreements from time to time.
Plaintiff had filed suit for declaration about the plaintiff's tenancy rights
-- 3 of 10 --
Ch/s 647 of 2018 : 4 : L.C.Suit.No 978 of 2018
over the property in which an injunction motion was filed and same is
made absolute against the landlords by the Small Causes Court on
17/01/2018. Thereafter, the landlords have filed the suit for recovery
of the premises on the ground of bonafide requirement and nuisance
and annoyance. In that suit architect was appointed as a Court
Commissioner however, he exceeded his rights and gave opinion in
respect of additional alterations. The present dispute is between the
plaintiffs company and the corporation under the MMC Act. The
landlords are not necessary and proper party hence, prayed to dismiss
the chamber summons.
7 I have heard Shri D.A.Thorat advocate for applicants and
Shri N.P.Dalvi adv for plaintiff.
8 Shri D.A.Thorat advocate for applicants has submitted that
applicants are the landlords of the suit premises. Now the Deeds of
Lease are expired due to the efflux of the time. Plaintiffs have made
alterations and addition in the suit premises. Therefore, the corporation
issued notice to the plaintiff U/s 351 of MMC Act. He further submitted
that in the present suit, the disputed question is in respect of the
unauthorized construction. Applicants being a landlord then
opportunity should be given to them to canvass their submissions. He
further submitted that the defendant corporation has passed the
impugned order considering the reply of the plaintiff. Any order or
judgment that would be passed in the present would directly affect the
applicants being the owners of the suit building. Hence, he prayed to
allow the chamber summons. In support of his contention, he relied on
Adam A. Sorathia & Another V/s Municipal Corporation of Greater
Bombay and another 2002 (4) Bom. C.R. 419 and Ranjitsingh Linga
& Anr V/s Municipal Corporation of Greater Mumbai & anr 2010
-- 4 of 10 --
Ch/s 647 of 2018 : 5 : L.C.Suit.No 978 of 2018
(4) Bom C.R. 363
9 Shri N.P. Dalvi advocate for plaintiff has submitted that
applicants though landlord are neither necessary nor proper parties to
the suit. No relief is claimed against the landlords. He further
submitted that plaintiffs have filed suit no. 564/2017, against the
applicants in the Court of Small Cause, at Mumbai. In that suit the
notice of motion of injunction of the plaintiff is allowed by the Ld
Court. Thereafter, applicants filed suit for recovery of premises on the
ground of bonafide requirements and nuisance and annoyance. In that
suit the Court Commissioner was appointed however, he exceeded his
powers and noted the addition and alteration in the Commissioner's
report. According to him, in the present suit an effective decree can be
passed in the absence of applicants hence they are neither necessary
nor proper party to the suit . Hence, he prayed to dismiss the chamber
summons.
10 Plaintiff is a Private Limited Company and manufactures
Sophisticated life saving medicines mainly on diabetics, pain killers.
Admittedly, applicants are the landlords of the suit premises. Plaintiffs
are in possession of the suit premises on the basis of Deeds of Lease.
The contention of the applicants is that now the Deeds of Lease are
expired due to the efflux of time . The recovery of possession of suit
premises between applicants and plaintiffs is pending before Small
Causes Court, Mumbai. It is also admitted that plaintiffs company had
filed suit bearing no. 564 of 2017 against the applicants in the Small
Causes Court, Mumbai and in that suit the Ld Judge, Small Causes
Court, Mumbai allowed the notice of motion and temporarily
restrained the applicants from obstructing the egress,ingress of the
plaintiff's employees, agents, representatives, directors, contractors and
-- 5 of 10 --
Ch/s 647 of 2018 : 6 : L.C.Suit.No 978 of 2018
other staff in relation to their business activities or /to cause any
disturbance in activities of the plaintiff's business in the suit premises.
Here in the present suit the cause of action is the notice issued by the
defendant/corporation to the plaintiff U/s 351 of the MMC dated
9/1/2018. The notice is in respect of unauthorized construction of
toilets, store room and full height brick masonry wall at 2nd floor, 3rd
and 4th floor of the said building. It is pertaining to note that plaintiffs
have challenged the said notice by writ petition no 165 of 2018 before
the Hon'ble High Court. The Hon'ble High Court directed the Municipal
Corporation to follow the law laid down in the case of Sopan Maruti
Thopate V/s Pune Municipal Corporation AIR 1996 Bom. 304
Accordingly, Writ Petition is disposed of. Thereafter, as per directions
of Hon'ble High Court defendant corporation has passed speaking order
on 24/1/2018 Plaintiffs have challenged the said notice and order in
the present suit.
11 It is true that plaintiffs have sought relief of declaration in
respect of the aforesaid notice and order in the suit . No relief is sought
against the landlord applicants. In Adam A. Sorathia and another
V/s Municipal Corporation of Greater Bombay and another Hon'ble
High Court, Mumbai held that:
Reverting back to the facts of the present case in `
hand, it is clear that the notice issued by the
Corporation dated 2nd January 1995 refers to the
unauthorised extension made by respondent No.2
which is annexed to the demised premises. It has
virtually become a part of the demised premises.
The landlords have direct and substantial interest in
the demised premises, the demolition of which is
-- 6 of 10 --
Ch/s 647 of 2018 : 7 : L.C.Suit.No 978 of 2018
sought by notice issued under section 351 by the
Bombay Municipal Corporation. In the event of its
demolition their right are bound to be affected.
Considering the length and breadth of the plaint
allegations, one of the issues before the trial Court would
be as to whether the alleged construction sought to be
demolished is a sanctioned construction or not. The
landlords or the owners of the premises would be the
better persons to throw adequate light on the controversy.
In these circumstances, in my view, the landlords are the
proper parties, though the relief is sought only against the
Corporation for perpetual injunction restraining the
Corporation from demolishing the structure. In Ramesh H
Kundanmal V/s Municipal Corporation of Greater Bombay
(Supra) the Apex Court had pointed out in paragraph18
of the judgment that the notice did not relate to the
structure but to two chattels/structures which were
movable on wheels and plates where servicing and/or
repairs were done and used for storing implements of the
mechanics. Admittedly, respondent no. 2 therein had no
interest in those chattels and demolition of the same in
pursuance of the notice was not a matter which was to
affect the legal rights of the landlord in that case. In the
instant case, the landlords would be entitled to place all
the facts before the trial Court and therefore, in my view,
the presence of the landlords before the trial Court would
be necessary for adjudicating upon the issues effectually
and completely.
-- 7 of 10 --
Ch/s 647 of 2018 : 8 : L.C.Suit.No 978 of 2018
In Ranjitsingh Linga & Anr V/s Municipal
Corporation of Greater Mumbai and anr Hon'ble High Court held
that:
There is prima facie material on record in form of
saledeed to show that 2nd respondents have
become owners of shed 1 together land below it.
Suit premises is part of shed1. Conveyance relates to
shed 1 & 2. Averments made in plaint and notice
under section 351 of Act annexed to plaint shows
alleged unauthorised structure forms part of shed 1
As held by Apex Court in 1997 (1) Bom C.R. 464
(S.C), 2nd respondents have direct and substantial
interest in property subjectmatter of suit. Trial
Court rightly directed 2nd respondents be impleaded
as proper parties to suit. Writ petition rejected. No
adjudication made as regards legality of structure.
12 In the present case, the applicants are the landlords
of the suit premises. If any order or judgment passed in the present suit
will definitely affect their rights in respect of the suit premises. Though
any relief is not claimed against the landlord, there presence is
absolutely necessary for effective hearing of the suit. Hence, in view of
the facts and circumstances of the case, and the ratio laid down by
Hon'ble High Court, as above, I find that applicants are necessary and
proper party to the suit. Hence following order:
ORDER
1 Chamber Summons No. 647 of 2018 is hereby
allowed.
-- 8 of 10 --
Ch/s 647 of 2018 : 9 : L.C.Suit.No 978 of 2018
2 Plaintiffs are directed to add the applicants as a
defendants in the suit and make necessary amendment in
the plaint within 14 days.
3 Chamber Summons is disposed of accordingly.
Date 18/04/2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 18.04.2018
Typed on : 18.04.2018
Signed by HHJ. :20/4/2018
-- 9 of 10 --
Ch/s 647 of 2018 : 10 : L.C.Suit.No 978 of 2018
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
10/4/2018 Mr. S.D.Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
18/04/2018
JUDGEMENT/ORDER signed
by P.O. on
20/4/2018
JUDGEMENT/ORDER
uploaded on
21/4/2018
-- 10 of 10 --