Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons no. 708 of 2018
In
L.C.Suit No.52 of 2013
Mr. Sudesh Shrikant Salgaonkar ..Applicant
Proposed Defendant
V/s
Mr. Sunil Bapu Mestry Panchal ...Respondent/
Org. Plaintiff
Advocate R.N.Kachave for applicant
Advocate P.G.Sawant for plaintiff
Advocate G.O.Giri for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 2nd April , 2019
(Court Room No.06)
O R D E R
1 Applicant Suresh Salgaonkar has taken out this chamber
summons under order 1 rule 10 (2) of Code of Civil Procedure to
implead him as defendant in the present suit.
Facts leading to chamber summons are as under:
2 Plaintiff has filed the present suit against the defendant for
declaration and certain reliefs. Plaintiff is encroacher and tress passer
on the land of defendant Municipal Corporation. The land is reserved
for recreation ground. Plaintiff has mislead and misrepresented to this
court and got ad interim injunction in his favour. Thus, plaintiff is
wrong door. Applicant has filed civil suit no. 4614 of 2013 before this
court and the said suit is pending for hearing. In that suit applicant has
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submitted all the detail facts and sought direction to remove all the
encroachers and get the recreation ground free from encroachers in the
interest of public.
3 Applicant further stated that in that suit plaintiff has
submitted his reply/written statement on 3/3/2018 and also submitted
order of this court. Therefore, applicant came to know the pendency of
the present suit. Therefore, in the interest of justice applicant is
necessary party to the present suit and accordingly prayed to add the
applicant as defendant in the suit.
4 Plaintiff filed his reply. Plaintiff has cause of action
against the defendant Municipal corporation. Applicant has not locus
standi to file the chamber summons. Applicant is not necessary party to
the present suit. Applicant has filed Public Interest Litigation (Cri)
bearing no. 38/2013 before the Hon'ble High Court . In the meantime
defendant initiated action and the applicant had withdrawn the above
Public Interest Litigation. Applicant is not occupier of land in the plot.
Hence, applicant cannot be added as a defendant in the suit. Hence,
amongst these grounds plaintiff prayed to dismiss the chamber
summons. Applicant filed affidavit in rejoinder.
5 I have heard Mr. R.N.Kachave advocate for applicant and
Mr. P.G.Sawant advocate for plaintiff.
6 Shri Kachave advocate for applicant has submitted that the
plot is reserved for recreation ground. Applicant has made complaint
against the plaintiff and other encroachers. Applicant has himself filed
Public Interest Litigation before Hon'ble High Court. Applicant had filed
suit bearing no. 4614/2013 against the plaintiff and the said suit is
pending in this Court. Applicant is necessary party to the suit and
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hence, he prayed to allow the chamber summons.
7 Mr. Sawant advocate for plaintiff has submitted that
plaintiff has challenged the notice U/s 314 of the MMC Act and order
passed thereon. Therefore, the dispute is between the plaintiff and
Municipal Corporation. Applicant is neither necessary party to the suit.
Hence, prayed to dismiss the chamber summons.
8 A necessary party is one whose absence an effective
decree cannot be passed. A proper party is one whose presence is
necessary to determine the controversy between the parties. It is true
that plaintiff is a dominus litus of the suit. However, under order 1 rule
10(2) Court has power to add any person as party to the suit if the said
person is necessary and proper party to the suit.
9 Here in the present suit, plaintiff has challenged the order
passed by defendant Municipal Corporation dated 20/12/2014. Earlier
the defendant Municipal Corporation issued a notice to the plaintiff
dated 7/07/2009 U/s 314 of the MMC Act. Plaintiff gave reply to the
notice and subsequently the impugned order is passed. Applicant has
no concern with the plot of the land. Only contention of the applicant is
that the said land is reserved for recreation ground and plaintiff made
encroachment on the said land. However, defendant Municipal
Corporation has initiated action U/s 314 of the MMC Act. Now the
dispute in the present suit is between plaintiff and defendant Municipal
Corporation. Considering the nature of suit, I find that applicant is
neither necessary nor proper party in the suit. Cause can be effectively
adjudicated without presence of the applicant. Hence, chamber
summons is devoid of merit and accordingly following order:
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ORDER
1 Chamber Summons no. 708/18 is dismissed.
2 No order as to costs.
3 Chamber summons is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 2/04/2019
Typed on : 3/04/2019
Signed by HHJ. :4/04/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
5/04/2019 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
2/04/2019
JUDGEMENT/ORDER signed by
P.O. on
4/4/2019
JUDGEMENT/ORDER uploaded
on
5/4/2019
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