Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber Summons 759 of 2018
In
L.C.Suit No. 2525 of 2017
Poonam Property CoOperative Housing
Ltd. ...Applicant/intervener
In the Matter Between
Mr. Sayed Mohammed Mehdi Rizvi ..Plaintiff
V/s
M.C.G.M ..Defendants
Advocate Mr. Gada for applicant
Advocate Mr. R.D.Thorat for plaintiff
Advocate Mr Subhash Satpute with Mr. Kumawat for
defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 3rd August 2018.
(Court Room No.06)
O R D E R
1 Applicant/intervener Poonam Property Cooperative
Housing Society Ltd, Worli, Bombay400 018 has taken out this
Chamber Summons under order 1 rule 10(2) of Code of Civil
Procedure, 1908 for impleading the society as a defendant in the suit.
2- According to applicant, the plaintiff has made
unauthorized extension of flat No. D5 situated in building no. D of
applicant society. The designated officer of defendant by his letter
dated 9/4/2018 requested office bearers of the society to meet and
remain present on 10/4/2018 for personnel hearing of the complaint
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regarding unauthorized extension of plaintiff. A meeting dated
10/4/2018 was not taken place and meeting was rescheduled and
held on 11/4/2018. There office bearers of the applicant came to
know that plaintiff has challenged the notice by this suit and therefore
applicant has filed this chamber summons.
3 Since the year 2013, there was exchange of
correspondence between the applicant, plaintiff in respect of the illegal
construction made by plaintiff in flat no. D5 and D6. Thereafter in
June 2016, applicant/society has given the repairing work to M/s Total
Solution . The repair work of the building A, B & C is completed
however, no repairs was possible and carried out in 'D' building in
which said flat D5 is situated. The said repairing work would not be
carried out due to the illegal extension by the plaintiff. The members
of the applicant many times meet to the plaintiff and requested to
remove the unauthorized extension. Applicant has filed complaint to
the State of Maharashtra. Earlier the defendant corporation has given
notice to the plaintiffs son Talib Rizvi. Talib had filed suit no. 2039 of
2017. This Court had directed the designated officer to consider the
documents filed by plaintiff Talib and then pass fresh order. Thereafter
the designated officer has passed final order dated 16/11/2017.
Plaintiff is not coowner of the flat. The Hon'ble Court has granted the
order of statusquo. However, due to the illegal extension by plaintiff,
the entire work of repairing of 'D' building is stalled. The applicant is
likely to incur a cost of Rs.3.5 Crore. There are 275 members of the
applicant and about 65 members occupy 'D' building , The plaintiff has
made extension in the porch of the applicants society. Therefore,
applicant is proper and necessary party and hence prayed to implead
the applicant in the suit.
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4 Plaintiff filed affidavit and and denied the contentions
made in the chamber summons. Plaintiff denied that the plaintiff made
any illegal extension. Plaintiff denied that applicant is necessary and
proper party. Plaintiff denied that office bearers of the applicant came
to know about the said notice in the meeting called by designated
officer.
5 According to plaintiff, the applicants have admitted the
platform put up by the plaintiffs son. The construction is legal one and
therefore there is no question of demolition of the same. The office
bearers of applicant have made construction of one room in a common
passage and defendant has given notice to the applicant U/s 351 of the
MMC Act.
6 Plaintiff has challenged the notice U/s 351 of the MMC Act
issued by defendant municipal corporation. Therefore, applicant is not
necessary and proper party. Hence prayed to dismiss the chamber
summons.
7 From the rival contentions of both the parties following
points arise for my determination to who I record my findings against
them for the reasons given below:
Sr.No POINTS FINDINGS
1. Whether the applicant is necessary and
proper party to the present suit?
In the affirmative.
4. What order ? As per final order.
R E A S O N S
11 I have heard Shri Gada for applicant and Adv Shri
R.D.Thorat for plaintiff.
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12 Advocate Shri Gada for applicant has submitted that
applicant is the society . Due to the unauthorized extension by plaintiff,
the repair work of entire defendant building is stalled. The
unauthorized extension is in the porch of the society in front of the
plaintiffs flat no. D5. Plaintiff has challenged the notice U/s 351 of the
MMC Act. The presence of the applicant is necessary for complete and
effective adjudication . Hence, he prayed to allow the chamber
summons. In support of his contention he relied on
1 Adam A. Sorathia and another V/s Municipal Corporation of
Greater Bombay and another 2001 (3) Mh.L.J
2 Ranjitsingh Linga and another V/s Municipal Corporation of
Greater Mumbai and another 2010 (2) Mh.L.J.
3 ALiji Momonji & Co V/s Lalji Mavji And others (1996)5
Supreme Court Cases 379.
13 Shri R.D.Thorat advocate for plaintiff has submitted that
plaintiff has challenged the notice issued by the defendant/corporation.
The dispute is between plaintiff and defendant Municipal corporation.
Therefore, applicant is not necessary and proper party. He has invited
my attention towards the plaint , impugned notice and order.
According to him, the applicant has no interest and right in flat no. 5
in 'D' Building. Applicant has remedy to institute a separate suit. In his
suit applicant could not put its case hence, he prayed to dismiss the
chamber summons. In support of his contention he relied on Mohamed
Hussain Gulam Ali Shariffi V/s Municipal Corporation of Greater
Bombay & Ors ,2017 (6) All MR 420 (S.C)
14 Plaintiff by this suit has challenged the notice issued
U/s 351 of MMC Act. In the schedule it has mentioned that plaintiff has
made unauthorized extention of flat on porch area admeasuring 14.6 x
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7.5 ft. by using wooden doors and plywood, in Flat no. D5,Poonam
Apartment, Dr. A.B.Road Worli, Mumbai. Thereafter as per the
directions of this court the officer of defendants has passed speaking
order dated 6/11/2017 and directed the plaintiff to remove the said
unauthorized construction. Now the disputed portion is the
unauthorized extension of the suit flat on porch.
15 The suit flat is in 'D' Building. Admittedly, there are four
buildings i.e. A,B,C. and D. The 4th building have common co
operative society i.e. Poonam Properties CoOperative Society i.e. the
applicant.
16 Applicant has entrusted the work of repairing of the four
Building to M/s Total Solutions and it is alleged that repairing work of
building A,B,& C has completed however, due to the unauthorized
extension by the plaintiff the repairing work of building 'D' is stalled.
17 As discussed above the alleged unauthorized construction
is in the porch area i.e. common passage of the society. Necessary
party is one in whose absence an effective decree cannot be passed. The
proper party is whose presence is necessary for complete and effectual
jurisdiction of dispute.
In Adam A. Sorathia and another V/s Municipal
Corporation of Greater Bombay and another 2001 (3) Mh.L.J
Hon'ble High Court held that:
Where the presence of respondent is necessary for
complete and effectual adjudication of the dispute, though
no relief is claimed against him, he is a proper party.
Under Order 1, Rule 10 (2) of the Civil Procedure Code a
person, whose presence before the Court is necessary in
order to enable the Court effectually and completely to
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adjudicate and settle all the questions involved in the suit,
will be necessary party and will have to be added.
In Ranjitsingh Linga and another V/s Municipal Corporation
of Greater Mumbai and another 2010 (2) Mh.L.J. Hon'ble High
Court held in para no. 12 that:
Thus, what has been held by the Apex Court in the
decision in the case of Aliji Momonji (Supra) and by this
Court in the case of Adam A. Sorathia (Supra)is that if
action of demolition of a building or a part thereof
initiated by a Municipal Corporation is challenged, the
rights of the landlord of the building will be
directly affected and therefore such landlord
would be a proper party though no relief has
been sought against him. Thus, if a third party
is the owner of the property sought to be
demolished, such a third party has a direct
and substantial interest in as much as in the
event of its demolition, rights of such third
party would be materially affected.
In ALiji Momonji & Co V/s Lalji Mavji And others
(1996) 5 Supreme Court Cases 379 Hon'ble Supreme Court
held in para no. 6 that
In view of the finding that in the event of building
being demolished, right, title and interest of the
landlord would directly be affected, the landlord
would be a proper party, though no relief has been
sought for against the landlord. The High Court,
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therefore, was right in refusing to interfere with the
order passed by the trial court impleading the
landlords.
16 The applicant is cooperative society wherein building
A,B,C & D are situated. Plaintiffs son is the owner and in occupation of
flat no. D5. The allegation is unauthorized extension of porch. It also
appears that applicant/society had made correspondence in respect of
the unauthorized construction by the plaintiff. Though, no relief is
sought against the applicant society. However, I find that
applicant/society is proper party to the present suit and presence of
applicant society is necessary for the determination of the contraversy
in question.
17 In Mohamed Hussain Gulam Ali Shariffi V/s Municipal
Corporation of Greater Bombay and Ors the facts were the
municipal corporation had given notice to the Plaintiff U/s 351 of the
MMC Act. The applicant had filed chamber summons for adding them
as a party to the suit. Applicants had alleged that they have purchased
suit property from plaintiff. Hon'ble Supreme Court held that for
deciding legality of demolition notice presence of applicant is not
required. Rights between plaintiff and applicant regarding suit
property can be decided in separate suit and in the instance suit,
applicants are neither necessary or proper party.
18 However, in the present suit the unauthorized extention is
in the porch and applicant being a society of the building has raised
issue of unauthorized construction by plaintiff before the Competent
Authority. Therefore, applicant is the proper party. I answer the point
in the affirmative and pass following order:
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ORDER
1 Chamber Summons No. 759 of 2018 is hereby allowed.
2 Plaintiff is directed to add the applicant as a defendant in the
suit and carry the amendment within 14 days.
3 Chamber Summons is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 3/08/2018
Typed on : 4/08/2018
Signed by HHJ. :7/8/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
7/8/2018 Mrs. 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
3/8/2018
JUDGEMENT/ORDER signed by
P.O. on
7/8/2018
JUDGEMENT/ORDER uploaded
on
7/8/2018
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