Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CH-S 758-2018 IN SU 7517-01
CNR NO.MHCC01-005191-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.758 OF 2018
IN
S.C. SUIT NO.7517 OF 2001
Hanjarnagar Cooperative Housing ]
Society No.1 Limited and 6 others. ]....Plaintiffs.
Versus
Brihanmumbai Municipal Corporation ]
& 9 others. ]... Defendants.
And
Ejaz Sayani, Secretary of Z.A. Complex ]
Hanjarnagar Adhoc Housing Society. ]... Applicant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 3rd July, 2019.
Mr. Dalal a/w Ms. Kapadia, Advocate for plaintiffs.
Mr. Giri, Advocate for Defendant No.1./ MCGM.
Mr. Ansari, Advocate for applicant.
O R D E R
1. This Chamber summons is taken out for a direction to the
plaintiff to join the applicant as party defendant No.11 and to allow the
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applicant to represent the members of the AdHoc Society, of which
the applicant is a Secretary, in accordance with the provisions of
Order 1 Rule 8 of The Civil Procedure Code.
2. In brief, the applicant's case is that, he is representing the
members of an Adhoc unregistered Cooperative Housing Society
namely Z.A. Complex, Hanjarnagar, Adhoc Housing Society, in the
capacity of the Secretary thereof. Defendant No.2 was appointed to
develop the plot of land bearing CTS No.423/1 to 3 at village
Mogra, Andheri (East). Defendant No.2 has proposed to develop the
D and E wings on the said plot of land and by relocating the
Recreation Grounds had submitted the plans. The IOD and CC is
granted on 18.1.2001 and on 09.5.2001 respectively. The plaintiff
Societies objected said construction and have filed present suit.
Pursuant to the orders of the Hon'ble High Court dated 20.4.2006,
the Executive Engineer, Building and Proposal, was directed to hear
defendant No.2 and to decide whether the construction permission
was granted in accordance with law or not. The Executive Engineer,
after hearing, has held that the building "Z" approved under the
sanctioned plan is in accordance with law. Defendant No.2 has
allotted the flats in said proposed/approved building "Z" to the
members of the applicant's Society. The plaintiffs are seeking
conveyance of the plot of land bearing CTS No.423 without making
the applicant as party to the suit. The applicant and other
purchasers have rights in the building “Z” which is likely to be
constructed. If the suit is decreed, it will jeopardize rights of the
applicant's Society and they being necessary and proper party to the
suit and are entitled to be heard in the suit. Therefore, the applicant
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is directed to be added as defendant. No prejudice will be caused to
the plaintiffs if the chamber summons is allowed.
3. The plaintiffs have opposed the Chamber Summons on the
ground that it is filed to misuse the process of law. It is filed in
active collusion with defendant No.2 and is seeking to interfere and
obstruct the rights of the plaintiffs. It is an attempt to complicate
the proceedings. There is no lis between the plaintiffs and the
applicants and hence, the applicant is neither necessary nor proper
party to the suit. If the Chamber Summons is allowed, it would lead
to misjoinder of the parties and causes of action. The cause of action
as pleaded in the Chamber Summons is hopelessly barred by
limitation. The Adhoc Housing Society is not a legal entity and thus
cannot maintain the Chamber Summons. The applicant is not a
Secretary of the said Adhoc Housing Society. Since the said Adhoc
Society allegedly comprises of 28 known members, the Provisions of
Order 1 Rule 8 of the CPC do not apply. There are no documents
showing the constitution of the Society. No documents are placed
on record based upon which the applicant and others are claiming
to be allottees of the flats. Though the plaintiffs have sought
inspection and copies of such documents no such inspections or
copies have been furnished. The plan sanctioned for construction of
building 'Z' is illegal and void abinitio. The IOD and C.C. in respect
of the same has lapsed and is time barred. Defendant No.2 itself has
no rights in the suit property and therefore, alleged allotments to
the members of Adhoc Society are illegal and the same do not
create any rights in their favour. If at all the alleged members of Ad
hoc Society have any grievance, they may file separate proceedings
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against defendant No.2. They are neither the necessary nor the
proper parties to the suit. The addition of proposed defendants will
further indefinitely delay the hearing of the suit. Hence, the
Chamber Summons be dismissed.
4. Perused. Heard.
5. The advocate for applicant submitted that the applicant is the
Secretary of the Adhoc Society which is formed by the flat
purchasers in building 'Z' is to be constructed by defendant No.2.
Even if, the status of applicant as a Secretary of such Adhoc Society
is ignored, he can legitimately represent the proposed flat
purchasers in view of the Provisions of Order 1 Rule 8 of the CPC
since the applicant and others have the common interest. The list of
such members is attached to the Affidavit in support of Chamber
Summons. The Affidavit to that effect by all the members is also
submitted with Affidavit in support of Chamber Summons. The
plaintiff has sought conveyance of the entire plot of land which
includes the portion of land on which proposed building 'Z' is to be
constructed and is to be allotted to the applicants. The applicants
are necessary parties to the suit since their presence will be required
to effectively and completely adjudicate the lis in the suit. If they
are not added as a party to the suit, their interest will be
jeopardized as the conveyance, if granted, will also convey the land,
comprising Z building, to the plaintiffs. Therefore, the presence of
applicant in the suit is utmost necessary.
6. Advocate for plaintiff submitted that the prayers in the suit
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are not concerned with the claims raised by the applicant. No
document is produced on record to prove that the applicants have
any right. Neither allotment letters nor the copies of Agreement are
produced. Adhoc Society is not a legal entity and cannot maintain
the proceedings in its name. The Chamber Summons is taken out in
collusion with defendant No.2. Applicants can sue defendant No.2.
The D and E Wings are not at all approved. The plaintiff is dominus
litis. Plaintiffs cannot be forced to add the applicant as a defendant
whose rights are even prima facie not disclosed. The applicant's
claim is based on a plan approved in the year 2000 and thus is
barred by limitation. Even though the defendant No.2 has also filed
Affidavit in reply, no documents are attached with it to reveal the
transaction between the plaintiff No.2 and the proposed defendants.
The suit is fixed for evidence. The chamber Summons is taken out
merely to delay the hearing. The authorities sited by applicants are
not applicable to the present situation.
7. The Advocate for defendant No.2 submitted that the
allotment letters commencing from 2007 to 2010 are issued by
defendant No.2 allotting the flats to flat purchasers who intend to
join as party to the suit. Therefore, defendant No.2 has no objection
to allow the Chamber Summons.
8. Having heard the parties to the suit and Chamber Summons,
it needs to be mentioned here that, while considering present
Chamber Summons the Provisions of Order 1 Rule 10 of CPC would
be relevant. The prime factor to decide this Chamber Summons will
be whether the applicant Mr. Ejaz is the necessary or proper party
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to the suit. If, the answer is in the affirmative then rest of the
objections can be gone into.
9. In order to prima facie show that, the applicants have some
connection with the issues involved in the suit, they will have to
establish their status as the members of the AdHoc Society formed
by them. This they can do only when they could prima facie
establish that they are the flat purchasers.
10. It is really surprising to see that neither applicant nor the
builder i.e. defendant No.2, who has supported the applicant, have
produced on record a single document to reveal that the defendant
No.2 has issued the allotment letters in the name of applicant and
others revealing allotment of flats in the proposed building. In
absence of any such document to reveal that the applicant and
others are the persons who have some interest in the up coming
building or the proposed building, it is really difficult to hold that
they have same connection with the dispute in the present suit.
11. The advocate for applicant has relied upon,
a. the judgment of Hon'ble the Supreme Court in Razia
Begum Vs. Sahebzadi Anwar Begum & Ors., in Civil
Appeal No.695 of 1957,
b. the judgment of Hon'ble the Supreme Court in
Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai
Zalavadiya (deceased) through L.Rs. and Ors., in Civil
Appeal No.15549 of 2017,
c. the judgment of Hon'ble the Supreme Court in
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Baluram Vs. P. Chellathangam in Civil Appeal No.10940
10941 of 2014, and
d. M.V. Krishnamachari Vs. M.D.Dhanalakshmi and
Ors., AIR 1968 Mad 142.
12. I have gone through the authorities sited by the advocate for
applicant. The facts of those authorities reveal that either the status
of the applicant was admitted or was established and therefore their
legibility to join as a party to the suit could be gone into. In this
case there is nothing at all on record to reveal the status of
applicant and others at the flat purchasers.
13. In reply to the Chamber Summons the plaintiff has
specifically denied any such transaction between the defendant
No.2 and the applicant and others. Despite this no document is
produced to reveal that the applicant and others are the proposed
flat purchaser or the allottees in the proposed building. Why this is
so is nowhere explained.
14. In the light of above circumstances, when there is nothing on
record to establish the status of applicant and others as the
proposed flat purchaser or the allottees of the flat in the proposed
building "Z", they cannot be impleaded in the suit merely on the
basis of a statement by them supported by defendant No.2 but
denied by the plaintiff. In such circumstances, Chamber Summons
lacks merits.
15. The Advocate for plaintiff relied upon T.L. Muddukrishana
and another Vs. Lalitha Ramchandra Rao, (1997) 2 Supreme
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Court Cases 611 to claim that the applicant's claim is time barred.
He also relied upon Judgment of Hon'ble Supreme Court in
Mohamed Hussain Gulam Ali Shariffi's case to contend that the
applicants are not necessary parties to the suit.
16. On the other hand the advocate for defendant No.2 relied
upon Chairman, Tamil Nadu Housing Board, Madras Vs. T.N.
Ganapathy AIR 1990 Supreme Court 642, to contend that the
applicant alone can maintain the Chamber Summons for others also
in view of Order 1 Rule 8 of CPC.
17. As already observed, these issues can only be considered
when there is something on record to indicate that the applicants
have same connection with the proposed building "Z". In absence of
it, these issues need not be gone it. Therefore, authorities sited
supra will not be applicable to the present suit. Considering that
very basis of applicant's case is not established, I pass following
order:
ORDER
1. Chamber Summons No.758 of 2018 is dismissed.
2. Costs in cause.
Sd/
(A.N. MARE)
Judge,
03/07/2019 City Civil Court, Mumbai.
Dictated On : 03.07.2019
Transcribed on : 04.07.2019
HHJ Signed on : 05.07.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06.07.2019 11.15 a.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
03.07.2019
JUDGEMENT /ORDER signed by
P.O. on
05.07.2019
JUDGEMENT /ORDER uploaded
on
06.07.2019
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