Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 577/2020 in Suit No. 1205/2020. 1 Order.
MHCC010044402020
Presented on : 15-10-2020
Registered on : 15-10-2020
Decided on : 09-11-2020
Duration : 0 years, 0 months, 25 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 577 OF 2020
IN
SUIT NO. 1205 OF 2020
Mr. Daniel Gasper Rodriques ...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ...Defendants
AND
Cassian Paul Clarry Rodrigues and Others ...Applicant
(Proposed Defendants)
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 9th NOVEMBER, 2020.
Mr. Mukesh Dubey, Advocate for Plaintiff.
Mrs. Mhatre, Advocate for Defendant / MCGM.
Mr. Pal h/f Mr. Pratap Singh, Advocate for Applicants.
ORDER
This is a chamber summons preferred by applicant to
implead him as necessary party / defendant no.2.
-- 1 of 4 --
Ch/s No. 577/2020 in Suit No. 1205/2020. 2 Order.
2. Perused reply submitted by plaintiff.
3. Ld. Adv. Pal for applicants submits that plaintiff is uncle of
applicant. Since 1962 applicant is residing at ground floor and plaintiff
is residing at first floor. He is co-owner of the suit premises alongwith
plaintiff. It is requested to peruse various photographs submitted by the
applicant that plaintiff has initiated extension of first floor, more
specifically mezzanine floor. He can throw light on various aspect
which will be helpful to decide the notice in question issued by the
MCGM. It is requested to implead him as a necessary party/defendant
no.2.
4. Ld. Adv. Mukesh Dubey for plaintiff submits that plaintiff is
not residing on the ground floor as averred in chamber summons. It is
dispute between MCGM and the plaintiff. The notice in question is in
respect of the schedule as described in impugned notice. It is requested
to peruse ratio laid down in Mohamed Hussain Gulam V/s. MCGM
(Civil Appeal No. 35321/2016), wherein, it is held that in a litigation
wherein notice challenged is under Section 354A of MMC Act, third
party shall not be allowed to litigate.
5. Ld. Adv. Mhatre for MCGM submits that appropriate order
may be passed.
REASONS
6. The relationship as uncle and nephew between applicant
and plaintiff is not disputed. It is not disputed that plaintiff is co-owner
alongwith applicant. Admittedly, impugned notice under Section 354A
-- 2 of 4 --
Ch/s No. 577/2020 in Suit No. 1205/2020. 3 Order.
of MMC Act dated 21/09/2020 and speaking order thereon is fact in
issue.
7. In view of impugned notice dated 21/09/2020 in
paragraph 1 description of work is denominated as schedule of
unauthorized vertical extension. It is well settled principle of law that
none can compel the plaintiff to litigate against unwanted parties.
However, the applicant came with specific case that he knows condition
of the suit premises as on 1962. There are numerous photographs
submitted by the applicant in respect of present status of the suit
structure, more specifically ongoing extension of the premises.
Considering factual aspect, it would be helpful to the Court to properly
adjudicate the notice in question.
8. Ld. advocate for plaintiff submits that applicant is a builder
in real estate, he does not reside on the ground floor as alleged.
However, co-ownership of applicant alongwith the plaintiff is not
disputed. Whether ground floor is in use of the applicant or not, cannot
be the question for consideration at this stage. In short, presence of
applicant as defendant no.2 will be helpful to decide notice in question.
Resultantly, chamber summons deserves to be allowed. Hence the
order:
- ORDER -
1. Chamber Summons No. 577/2020 is allowed.
2. Plaintiff to carry out the amendment within two weeks,
applicant be added as defendant no.2.
3. Applicant/defendant no.2 will be at liberty to submit
written statement.
-- 3 of 4 --
Ch/s No. 577/2020 in Suit No. 1205/2020. 4 Order.
4. Ch/s No. 577/2020 is disposed off.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 09/11/2020. Mumbai.
1. Dictated on : 09/11/2020.
2. Transcribed on : 10/11/2020.
3. Signed on : 12/11/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/11/2020. 2.04 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 09/11/2020.
Judgment/Order signed by P.O. on 12/11/2020.
Judgment/Order uploaded on 12/11/2020.
-- 4 of 4 --