Final Order 1

Order Details: Chamber summons
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 691 OF 2018
(CNR No. MHCC010046912018)
IN
LONG CAUSE SUIT NO.2423 OF 2017
Naresh Chandra Joshi … Plaintiff
V/s.
1. Municipal Corporation of
Greater Mumbai & Anr. ...Defendants
And
R. Ramakrishnan ...Applicant
CORAM : HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.06)
DATE : 06/06/2023
Adv. Mr. Navin Joshi for the plaintiff.
Adv. G.S. Bhatt for the applicant/ intervener.
Adv. Ms. Meena Dhuri for the defendants/BMC.
ORAL ORDER
1. Read Chamber summons, reply filed by the plaintiff, heard
both the sides at length.
2. By this chamber summons applicant R. Ramakrishnan seeks
relief to implead him as a necessary party to the suit mainly on the
ground that he is a member of the society. Secondly BMC is lessor in
respect of land on which suit building is situated. Due to illegal
construction lease is terminated. Due to which all members including
applicant/ intervener will be put o loss and consequence of losing the
suit property itself.
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2 Ch/s No. 691/2018
3. On perusal of record an proceeding, it appears that during
the pendency of the suit for declaration and injunction present chamber
summons is filed for addition of party by the applicant/ intervener. It is
settled principle of law that plaintiff is dominus litis i.e. plaintiff may
choose to implead only those persons as a defendant against whom he
wishes to proceed for seeking relief. Necessary party is one without
whom no order can be effectively made. By instituting the present suit
plaintiff challenged notice issued by the defendants/BMC under MRTP
Act. Therefore, it is clear that the nature of the present suit is in respect
of of alleged illegal construction for which notice under MRTP Act is
issued which is challenged in the present suit by the plaintiff.
4. At this juncture, learned advocate for the applicant/
intervener submitted before the Court that suit property is owned by the
BMC, which is given on lease to the society. Therefore, status of society
is a lessee by alleged illegal construction. The plaintiff being a member
of the society committed breach of lease deed. Therefore, there may be
a loss or being a member, applicant/ intervener will suffer of loosing
the suit property. Under such circumstances, presence of applicant/
intervener is necessary in the present suit. Learned advocate for the
applicant/ intervener placed his reliance in the case of Ramesh
Hirchand Kundanmal V/s. Municipal Corporation of Greater
Bombay and others reported in (1992(3) Bom CR 110).
5. On the other hand, the plaintiff strongly submitted before
the Court that considering the nature of the suit only BMC is necessary
party to the proceeding. Presence of applicant/ intervener is not
necessary. The plaintiff placed his reliance on the case of Mohamed
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3 Ch/s No. 691/2018
Hussain Gulam Ali Shariffi V/s. Municipal Corporation of Greater
Bombay and Ors. reported in (2017 (6) ALL MR 420 (SC).
6. On going through the rival submissions it appears that
upon receipt of notice under MRTP Act, the plaintiff challenged the said
notice before this Court. Therefore, for deciding the legality of
demolition notice ,the dispute is pertaining to only BMC and plaintiff.
Under such circumstances, the presence of applicant is not necessary.
The case laws relied by the plaintiff is helpful to his case.
7. As mentioned above, in the present fact and circumstances
of the case presence of applicant/ intervener is not necessary to decide
the legality of alleged notice issued by the defendants/BMC. No doubt
the applicant being a member of the society is having very right to raise
grievance by instituting separate proceeding before the competent court
of law. Under such circumstances, presence of applicant is not
necessary to resolve real controversy between the parties. Accordingly, I
proceed to pass following order.
ORDER
1. Chamber Summons No.691/2018 is rejected.
2. Both the parties take note of this order.
3. Cost in cause.
4. Chamber Summons No.691/2018 is disposed off.
(R. B. Parvekar)
Date06/06/2023 Adhoc Judge,City Civil Court,
Gr. Bombay .
Dictated on : 06/06/2023
Typed on : 06/06/2023
Signed on :
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4 Ch/s No. 691/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07/06/2023 05.30 P.M. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
06/06/2023
JUDGMENT/ORDER signed by
P.O.on
07/06/2023
JUDGMENT/ORDER uploaded on 07/06/2023
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