Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch/Sum. 699/18 in L.C. Suit No.1893/17
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.699 OF 2018
IN
L.C. SUIT NO.1893 OF 2017
Shri Sunil Sohanlal Jain
Age 40 years, an adult, Indian Inhabitant,
Having address as Shop No.6, 570,
Rajasthan Chamber, New Mill Road,
Kurla (West), Mumbai – 400 070. Plaintiff.
V/s.
Municipal Corporation for Greater Mumbai
a Bdy corporate duly Constituted
under the Provisions of B.M.C. Act, 1888,
Having their Head office at Mahapalika
Bhavan, Mahapalika Marg, Fort,
Mumbai – 400 001. Defendants.
And
Vijay K. Manthena
Age 41 years, Indian Inhabitant,
R/o 7/34, Hariyanawala Lane,
Abdulla Mansion, Station Road,
Kurla (W), Mumbai – 400 070. Applicant.
Advocate Mr. Yuwraj Patil for Applicant.
Advocate Mr. Yadav h/f Adv. Shukla for Plaintiff.
Advocate Mr. Hajare for Defts./BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 10th JULY, 2018
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:2: Ch/Sum. 699/18 in L.C. Suit No.1893/17
ORAL ORDER
The applicant has filed present chamber summons in the
present suit for adding him as a defendant.
2. The plaintiff filed suit for permanent injunction against the
defendants/BMC. The defendant has issued notice to the plaintiff in
respect of illegal and unauthorized construction. The said notice is
issued on the complaint of applicant. The applicant is residing at the
address mentioned in the chamber summons since long time. As the
plaintiff without taking permission from the society or any concerned
Government Office such as defendants, constructed illegal structure,
therefore, applicant has given complaint against the plaintiff at the
office of defendants for removal of said illegal construction alongwith
photographs. In spite of complaint filed to the BMC officer, they have
not taken any action/steps against the unauthorized construction of the
plaintiff. After the complaint of applicant BMC directed the Asst.
commissioner to take appropriate action by letter dated 22.08.2016.
The defendant has issued letter to applicant dated 22.09.2016 and
informed him that they have issued notice to plaintiff under Section
354A of MMC Act. The earlier Suit No. 5966/16 filed by the plaintiff
has been disposed of by giving directions to defendant to complete the
inquiry within 3 months. The plaintiff filed application to defendant
seeking permission to carry out repairs but instead of that, they have
carried out illegal construction. The applicant submits that on the basis
of the complaint filed by him, BMC issued the notice. He has various
documents to prove that the construction carried by the plaintiff is
unauthorized and illegal and he is residing adjacent to the suit structure
and affected by the unauthorized construction of suit structure,
therefore, he prayed to implead him as a party to the suit.
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3. Notice of the present chamber summons issued to plaintiff.
The plaintiff filed his reply, thereby strongly objected present chamber
summons on the ground that the present chamber summons is not
maintainable as there is no cause of action to join the applicant as a
party to the suit. He has failed to make out any ground which is
necessary for joining the party to the suit as per Order I Rule 10 of the
CPC. The applicant is not residing adjacent to the suit premises. He is
residing one meter away from the suit premises. The applicant is neither
occupier nor the owner of the premises. He has no right, title and
interest of any nature whatsoever in respect of the suit premises. The
applicant is the habitual complainant. Only to extract money, he has
filed present chamber summons. The residents of the vicinity already
lodged complaint against the applicant as he is representing himself as a
municipal officer. On the complaint of local residents FIR was
registered against applicant for personification as public servant i.e.
Municipal Officer, in which the Hon'ble High Court granted ABA to
applicant on various conditions. There is one more FIR lodged against
the applicant under Section 170 and 506 of IPC on 11.06.2014 on the
complaint made by one more local resident for personification as public
servant. Merely, he lodged complaint for illegal construction, he is not
the necessary party to the suit. Hence, plaintiff prayed to reject the
chamber summons with costs.
4. Heard Advocate Yuwraj Patil for applicant, advocate Yadav
h/f Advocate Shukla for plaintiff and advocate Hajare for
defendant/BMC.
After perusal of record it is observed that the applicant is
neither the owner nor occupier of the suit premises, for which BMC has
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:4: Ch/Sum. 699/18 in L.C. Suit No.1893/17
issued the notice. It is admitted fact that on the basis of the complaint
made by applicant, BMC has issued notice to the plaintiff. Merely, on
the basis of the complaint filed by the applicant, BMC has taken action,
it doesn't mean that the complainant is the necessary party to the
present suit. The necessary party is the party, which is required for the
final adjudication of the suit.
5. The advocate for the applicant has rightly relied on the
citation of Apex Court reported in 2005 (5) ALL MR (S.C.) 458 in the
case of Amit Kumar Shaw and Anr., V/s Farida Khatoon and Anr.,
in which it has held that
The power of a Court to add a party to a
proceeding cannot depend solely on the question,
whether he has interest in the suit property. The
question is whether the right of a person may be
affected if he is not added as a party. Such right,
however will include necessarily an enforceable legal
right.
The object of Order I, Rule 10 is to discourage
contests on technical pleas, and to save honest and
bonafide claimants from being nonsuited. The power
to strike out or add parties can be exercised by the
Court at any stage of the proceedings. Under this
Rule, a person may be added as a party to a suit in
the following two cases :
(1) When he ought to have been joined as
plaintiff or defendant, and is not joined so, or
(2) When, without his presence, the questions
in the suit cannot be completely decided.
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6. The advocate for the plaintiff rightly relied on the citation
of the Apex Court. In the present case the applicant has not produced
any documents to show that how he is related to the suit premises. The
applicant also failed to bring on record how he is affected party, if he is
not added as a party to the suit.
7. As per the Order I, Rule 10 of the CPC, the person to be
joined as a party, must be one, whose presence is necessary. Without
whom, no order can be made effectively. The proper party is one, in
whose absence affective order can be made but whose presence is
necessary for complete and final decision on the question involved in
the proceeding.
8. In the present case the applicant has not shown that his
right will be affected, if he is not added as a party. The applicant failed
to show how he is proper and necessary party to the present suit. In the
present case the BMC has issued notice to the plaintiff regarding suit
structure and the plaintiff has challenged said notice before this Court.
The applicant doesn't have any legal right to add him as a party. In the
circumstances, I pass following order :
ORDER
Chamber Summons No.699/18 stands rejected and
accordingly disposed of.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 10/07/2018.
Dictated on : 10/07/2018
Transcribed on : 11/07/2018 Signed on : 12/07/2018
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:6: Ch/Sum. 699/18 in L.C. Suit No.1893/17
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/07/2018 At 05.05 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
10/07/2018
Judgment/Order signed by P.O. on 12/07/2018
Judgment/Order uploaded on 12/07/2018
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