Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons 690 of 2018
In
L.C.Suit No. 4472 of 1991
Ikramul Hassan Sayyed ..Plaintiff
V/s
Municipal Corporation of Gr Bombay ..Defendants
And
Sayeeda Iqbal Hasan Sayyed ..Applicant
Advocate Rajesh Saravade for applicant
Advocate A.J.Rizvi for plaintiff.
Adv Sutar for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 30th November 2018
(Court Room No.06)
O R D E R
1- Applicant Sayeeda Iqbal has taken out this chamber
summons under order 1 rule 10 (2)of Code of Civil Procedure 1908. for
addition her as a plaintiff in the suit.
Facts leading to the chamber summons are as under:
2 The suit premises was in possession and occupation of
Shamsul Hasan Noorul Hasan Sayyed. Plaintiff Ikramul Sayyed is son
in law of Shamsul Hasan. Applicant is the younger sister of Nasrin Talat
who is the widow of Ikramul Hassan Sayed. The premises i.e. shed is
divided in to three part i.e. room no. 16B, room no 16A and room no.
16. Applicant is in possession of room no. 16B. The deceased plaintiff
Ikramul Hassan Sayyed had no concerned with the suit premises.
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2
However, he has wrongly presented himself as a son of Shamsul Hasan
and filed the present suit. In the said suit Sarida Khatoon was wrongly
mentioned as Sarida instead of Sayeeda. Applicant is the legal heir of
the original owner and occupant Shamsul Hasan. Hence, she has right
and interest in the suit premises.
3 Applicant is the necessary and proper party to the suit.
Applicant had no knowledge about the suit. Therefore, there is delay of
24 years for filing the present chamber summons. Hence amongst these
grounds applicant prayed to condone the delay of 24 years and also to
implead her as a plaintiff in the suit.
4 Plaintiff filed affidavit in reply of plaintiff no.1 Mrs Nasrin
Talat. Plaintiff denied that applicant has right, title in the suit premises.
Plaintiff denied that applicant is necessary and proper party to the suit.
5 According to plaintiff, applicant has filed chamber
summons with malafide intention. The original plaintiff has challenged
the notice issued by defendant U/s 351 of BMC Act. If the said alleged
structure is part of the alleged notice the applicant is well protected.
Thus prayed to dismiss the chamber summons.
6 Shri Rajesh Sarvode advocate for applicant has submitted
that applicant is the legal heir of the original occupier Shamsul Noorul.
Applicant had no knowledge about the filing of the suit. Applicant
being a legal heir of Shamsul Noorul is necessary and proper party.
Hence, she be added as a plaintiff in the suit.
7 Per contra Shri A.J. Rizvi advocate for plaintiff has
submitted that plaintiffs have challenged the notice U/s 351 of MMC
Act. The original plaintiff Ikramul Sayyed was in occupation of the suit
premises. The dispute is between the plaintiff and defendant
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3
corporation. Plaintiff is neither necessary nor proper party to the
present suit. The cause can be adjudicated in absence of the applicant.
Applicant has remedy to file separate suit. Hence, he prayed to dismiss
the chamber summons.
8 Applicant has come with a specific case that she is
daughter of original owner occupier namely Shamsul Noorul.She
resides in the suit premises in room no. 16B. Original plaintiff Ikramul
Sayyed in fact is the son in law of Shamsul. However, she has falsely
pretended to be son of Shamsul Noorul. Therefore, her presence is
necessary.
9 It is to be noted that a necessary party is one in whose
absence an effective decree can not be passed. The proper party is one
whose presence is required for the adjudication of suit. Under order 1
rule 10(2) the court has power to strike out or add parties either as
plaintiff or defendant for effectual and completely to adjudicate upon
and to settle all the questions involved in the suit.
10 Deceased plaintiff Ikramul Sayyed has filed the present
suit against the Municipal Corporation, Gr. Mumbai for declaration the
the notices U/s 488 and 351 are illegal and not binding upon plaintiff
and also for perpetual prohibitory injunction.
11 Thus, in the present suit the question for determination Is
the action initiated by defendant under MMC Act. Plaintiff has set out
the facts in the plaint and alleged that the notices are illegal. Therefore,
I find that the applicant is not necessary and proper party to the suit.
The dispute can be decided even in the absence of the applicant.
Further applicant is claiming as daughter of Shri Shamsul Noorul.
However, she did not file any documents in support of her contention.
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4
According to applicant she resides in part of the suit premises.
Therefore, she must have known the action initiated by defendant. The
suit is filed in the year 1991. Applicant has come in the Court by this
chamber summons after 24 years. Therefore, considering the facts and
circumstances of the case, nature of the di
spute I find that applicant is neither necessary nor proper party to the
suit. Therefore, I pass the following order:
ORDER
1 Chamber summons no. 690 of 2018 is dismissed.
2 Chamber summons is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 30/11/2018
Typed on :30/11/2018
Signed by HHJ. : 1/12/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
1/12/2018
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
30/11/2018
JUDGEMENT/ORDER signed by
P.O. on
1/12/2018
JUDGEMENT/ORDER uploaded
on
1/12/2018
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6
1 Plaintiff replied the said letter through his advocate dated
20/2/1998. The Court receiver by the letter dated 24/06/1998
addressed to the plaintiff alleging that the plaintiff illegally occupying
the unauthorized structure and unauthorizely carried out the
construction. The Court receiver called upon the plaintiff to hand over
the possession of the said portion and demolished the unauthorized
structure. Plaintiff gave reply dated 15/07/98 to the Court receiver and
denied the allegations. Thereafter, at the istance of Raj
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