Final Order 1

Order Details: Chamber summons
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO.572 of 2020
IN
STAMP NO.4749 OF 2020
IN
L.C.SUIT NO.1789 OF 2021
1. Mr. Nitin Manilal Furia
2. Smt. Aruna Nitin Furia .. Plaintiffs.
V E R S U S
1. Designated Officer
2. Municipal Corporation of Greater Mumbai .. Defendants.
A N D
Aarti Real Chem LLP .. Applicant/Intervener.
Ld. Advocate Ms. Indira Labde for the Plaintiffs.
Ld. Advocate Dharmesh Vyas @ Ld. Advocate Smt. Meena Dhuri for
Defendants/BMC.
Ld. Advocate Mr. Dalal @ Ld. Advocate Mr. Rajmahi Varma, @ Ld.
Advocate Mr. Navdeep Vora @ Ld. Advocate Mr. Sean Ma for the
Applicant.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH K. KHOMANE
(Court Room No.06)
DATE : 19th July, 2022.
ORAL ORDER
1. This chamber summons has taken out by Mr. Mayank
Navinchadra Gogari one of the partner of Aarti Realchem LLP under
Order I Rule 10 of Code of Civil Procedure (in short, 'C.P.C.') for
impleading him as a party defendant.
2. It is contention of the applicant that this suit has been filed
for declaration that the notice issued by the defendantMumbai
Municipal Corporation of Greater Mumbai, (in short, 'MCGM') under
Section 53(1) of the Maharashtra Regional Town Planning Act (in
short,'MRTP') is not legal and valid and with a relief of injunction
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restraining the defendants from taking action on the basis of impugned
notice.
3. It is contention of the applicant that the suit premises
Block/Flat Nos.1 and 2 are situated on the 3rd floor of Bhalchandra
Bhavan, constructed on plot no.216A at Matunga, Mumbai. He is the
lessee of the said plot and it is lease hold property. It is transferred in
his favour by defendantMCGM on executing Lease Deed. The plaintiffs
are the tenant of the suit premises. However, the plaintiffs have carried
out substantial additions and alterations without prior approval or
sanction of defendantMCGM. Therefore, defendantMCGM issued
notice under Section 53(1) of MRTP Act and directed the plaintiffs to
remove such alterations and additions. It is his further contention that
he is the lessee of the suit premises. His rights are involved in the suit
premises. He has direct and substantial interest in the suit premises.
So, he is proper and necessary party. According to him, in order to
place correct facts on record his presence in this suit would be helpful
since he has better idea and knowledge of the suit premise. Therefore,
he prays that he kindly be impleaded as a party defendant.
4. The plaintiffs have filed reply and contested the chamber
summons. According to them, the suit is between themselves and
MCGM. The intervener has no concern with the subject matter.
Therefore, he is neither necessary party nor proper party. The applicant
is not owner of the suit premises, therefore, he does not have locus
standi to intervene in the matter. The applicant has lodged false
complaint against them with the defendantMCGM and on the basis of
such false and vexatious complaints defendantMCGM are harassing
them. The suit is between themselves and defendantMCGM. Therefore,
the applicant/ intervener is not necessary or proper party. Hence, the
plaintiffs have prayed to dismiss the chamber summons.
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5. Heard both the sides of Advocates. I have gone through the
chamber summons and reply filed by the plaintiff to the chamber
summons.
6. Learned Advocate for the applicant/intervener submits that
the intervener is necessary and proper party since his rights are involved
in the suit premises and if action is taken as per impugned notice it
would be effect his rights involved in the suit premises. Therefore,
according to him, the intervener is proper and necessary party. To
support his argument, he has relied on the following cases:
i) M/s. Aliji Monoji & Co. Vs. Lalji Mavji and others, (AIR
1997 Supreme Court 64), wherein the Hon'ble Supreme Court
has observed that the landlord is a proper party to the suit for
perpetual injunction against the Municipal Corporation for
demolition of demised building as challenged.
ii) Ranjitsingh Linga and another Vs. Municipal
Corporation of Greater Mumbai and another, in W.P. No.8429
of 2009, decided on 08.02.2010, and Vraj Giriraj Coop. Hsg.
Society Ltd. Vs. Ashok Raghunath Rokade and Anr. in Writ
Petition No.5665 of 2014, dated 16.04.2019, wherein the
Hon'ble Bombay High Court has observed that the action of
demolition of a building which challenging the landlord of the
said building is proper party since his rights involved in the
building has been affected.
iii) Maroti Parbhatrao and others Vs. Muktabai w/o
Marotrao and others, [2020 (1) Mh.L.J.], wherein it has been
observed by the Hon'ble High Court that when there is contrary
view of coequal benches until view taken earlier is set aside by
Larger Bench, earlier view will prevail.
7. On the other hand, the learned Advocate for the plaintiffs
have argued that the dispute in the present suit is the validity of notice
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dated 23.07.2020. The impugned notice issued by defendantMCGM
against the plaintiffs for alterations or additions in the suit premises
without any prior approval of the defendantMCGM. Therefore, the
validity of impugned notice is under challenged. The applicant has no
concern with the impugned notice. Hence, he is not proper or necessary
party. To support her argument, she has relied on the following
citations:
i) Ramesh Hiranand Kundanmal Vs. Municipal
Corporation of Greater Bombay and Ors., decided on
04.03.1992, wherein the Hon'ble Supreme Court has held “ who
is necessary or proper party”.
ii) Mohamed Hussain Gulam Ali Shariffi Vs. Municipal
Corporation of Greater Bombay and Ors., in Civil Appeal
No.12273 of 2016, decided on 09.12.2016, wherein the Hon'ble
Supreme Court has held 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 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”.
8. In the present case, the subjectmatter of the dispute
between the plaintiff and the defendantMCGM is the demolition of the
unauthorised construction in pursuance to the notice under section 53
Sub clause 1 of the MRTP Act. The applicant claims to be the lessee of
the plot No. 216A on which suit structure is standing. He alleges that
the plaintiffs have made an unauthorised construction and he is in
possession of material evidence to that effect.
9. On the other hand, it is the case of the plaintiffs that on the
basis of false and vexatious complaints of the applicant impugned notice
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issued by the defendantMCGM. In the light of such averments, it has to
be considered whether the applicant is a necessary or proper party in
the present suit.
10. A necessary party is one without whom no order can be
made effectively. A proper party is one in whose absence an effective
order can be made but whose presence is necessary for a complete
and final decision on the question involved in the proceeding.
11. In this suit, the subjectmatter is the notice issued by the
defendantMCGM to the plaintiffs and the issue is whether it is justified
or not. The applicant is interested in supporting the defendantMCGM
and sustaining the action taken against the plaintiffs. But the basic
question which is required to be decided in this suit is validity of
impugned notice dated 23.07.2020. Thus, dispute revolved around the
legality of impugned notice. The applicant being lessee is having
interest in the suit premises. However, the plaintiffs are called upon to
remove the demised structure by impugned notice. So, the grievance of
the defendantMCGM against the plaintiffs is for violation of Municipal
Rules and Regulations. Question as to whether there is violation of
Municipal Laws by the plaintiff is in between plaintiffs and defendant
MCGM. The impugned notice is issued by the defendantMCGM. Thus,
dispute is between the plaintiffs and defendantMCGM. The knowledge
or having evidence with applicant about unauthorised alterations or
additions in the suit premises does not create legal interest in favour of
the applicant. Therefore, having regard to the nature of the controversy,
which is the subject matter of suit, the presence of plaintiffs as a party
do not require. Hence, chamber summons deserves to be dismissed.
With this, I pass the following order.
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O r d e r
1. Chamber Summons No.572 of 2020 is dismissed.
2. Chamber Summons No.572 of 2020 in LC.Suit No.1789 of 2021
stands disposed of.
(Rajesh K. Khomane)
Date19.07.2022 AdhocJudge,City Civil Court,
Gr. Bombay .
Dictated on : 19/07/2022
Typed on : 20/07/2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27/07/2022 12.30 p.m. Mrs. Pradnya S. Naik
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. K. Khomane (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
19.07.2022
JUDGMENT/ORDER signed by
P.O.on
27/07/2022
JUDGMENT/ORDER uploaded on 27/07/2022
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