Order 1

Order Details: Chamber summons
Pdf Text: IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO. 1084 OF 2019
(CNR NO. MHCC010059122019)
IN
LONG CAUSE SUIT NO. 1411 OF 2019
(CNR NO. MHCC010059352019)
Ms. Malti Poojari ...Plaintiff
Versus
Municipal Corporation Of Greater Mumbai
and another ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 3rd September, 2019.
Mr. Kudalkar, Advocate for Plaintiff.
Mr. Sanjay Gholve, Advocate for MCGM/Defendant No.1.
Mr. Khanvilkar, Advocate for Defendant No.2.
ORDER
1. By this chamber summons the plaintiff has sought to
amend the plaint so as to delete defendant no.2 from cause title of the
suit and other proceedings and to replace the words “defendant no.2”
by “the landlords”.
2. In brief, the plaintiff's case, as can be seen in the affidavit in
support of chamber summons, is that she is owner of Flat No.1 and 2 on
the ground floor of Geetanjali Building. Defendant no.2 is owner of the
land on which said Geetanjali Building was constructed. Defendant
no.2 has acquired the property on which the plaintiff's flats exist.
Defendant no.2 intends to redevelop the property on which the
plaintiff's flats are situated, without providing suitable permanent
-- 1 of 7 --
Ch/s No. 1084/19 in Suit No. 1411/19. 2 Order.
alternative accommodation and thereby depriving the legitimate rights of
the plaintiff. Defendant no.2 by misguiding, exercising force and
coercion upon the adjoining tenants of A Wing has procured agreement
for permanent alternative accommodation from these tenants. Now
defendant no.2 is targeting the plaintiff and is causing severe nuisance,
annoyance and harassment to the plaintiff in order to evict her.
Defendant no.2 is acting in breach of DC Rules, municipal laws and is
acting contrary and detrimental to the plaintiff's interest. Defendant
no.2 has opposed plaintiff's notice of motion by raising false grounds. In
reply to notice of motion, defendant no.2 has stated that they are not
necessary party to the suit. Since defendant no.2 is the owner of land
only, plaintiff does not intend to prosecute the suit against defendant
no.2 and therefore the name of defendant no.2 be deleted.
3. Defendant no.2 opposed the chamber summons on the
ground that they are lawful owners of the land on which Geetanjali
Building exists. Said building is in dangerous condition. Therefore
defendant corporation has issued the notice to the plaintiff as well as
defendant no.2 under Section 354 of the MMC Act directing to pull down
the building. The plaintiff has not produced any document to establish
her ownership on Flats No.1 and 2. Defendant no.2 being owner of the
land, is required to pull down the building else the blame will be on
defendant no.2. The plaintiff is not the owner of the flats. Defendant
no.2 has not acted in breach of any rule or law. Defendant no.2 has not
exerted pressure or coercion on the tenants as alleged. The chamber
summons is devoid of merits.
4. Perused. Heard.
-- 2 of 7 --
Ch/s No. 1084/19 in Suit No. 1411/19. 3 Order.
5. The advocate for plaintiff submitted that the plaintiff is the
owner of the construction raised on the land belonging to defendant
no.2. The notice issued by defendant corporation is to pull down the
building which has nothing to do with the land. Defendant no.2 has
filed reply to the notice of motion wherein it is the case of defendant
no.2 that defendant no.2 is not at all the necessary party to the suit.
Considering the statement of defendant no.2, the plaintiff does not
intend to prosecute defendant no.2. Defendant no.2 is neither necessary
nor the proper party. In support of his submission, he relied upon
Mohamed Hussain Gulam Ali Shariffi Vs. Municipal Corporation of
Greater Bombay & Ors. [2017(6) ALL MR 420(S.C.)] wherein the
Hon'ble Supreme Court has held,
“13. In our considered opinion, having regard
to the nature of the controversy, which is the
subject matter of the suit, respondent Nos. 2 and 3
are neither necessary nor proper parties. As would
be clear from mere perusal of the plaint, the basic
question, which is required to be decided in the suit,
is whether notice issued under Section 351 of the
Act by respondent No.1 (Corporation) to the
appellant is legally valid or not (see prayer(a) in the
plaint – page 251 of Volume II of S.L.P.Paper
Book).”
“14. To decide this question, in our considered
opinion, the only necessary and proper party to the
suit is the Mumbai Municipal Corporation, Greater
Mumbai, i.e. Respondent no.1, who has issued such
notice, and for deciding this question either way,
the presence of respondent Nos. 2 and 3 is not at all
-- 3 of 7 --
Ch/s No. 1084/19 in Suit No. 1411/19. 4 Order.
required. In other words, the suit can be decided
even in the absence of respondent Nos. 2 and 3.”
6. On the other hand, the advocate for defendant no.2
submitted that considering the status of defendant no.2 of being land
owner and considering the allegations made against defendant no.2 in
the plaint, defendant no.2 is necessary as well as proper party in the suit.
According to him, a landlord does have right to be heard in a suit
wherein defendant corporation has issued a notice for demolition of the
structure. In support of his submission he relied upon (1) Kantaben
Chandulal Kalidas V/s. Parsi Dairy Farm and others [1985 Mh.L.J.
220], (2) Adam A. Sorathia and another Vs. Municipal Corporation
Of Greater Bombay and another [2001(3) Mh.L.J.288], (3) Aliji
Momonji & Co. V/s. Lalji Mavji And Others [(1996) 5 Supreme Court
Cases 379], (4) State Of Assam V/s. Union Of India And Others
[(2010) 10 Supreme Court Cases 408].
7. In State of Assam V/s. Union of India, cited supra, the
Hon'ble Supreme Court has observed
“We may add that the law is now well settled that a
necessary party is one without whom, no order can
be made effectively and a proper party is one in
whose absence an effective order can be made but
whose presence is necessary for a complete and final
decision of the question involved in the proceeding.”
Thus, a party to suit may be either a necessary party or a proper party to
the suit.
8. In Kantaben's case, Aliji Momonji's case as well as Adam
-- 4 of 7 --
Ch/s No. 1084/19 in Suit No. 1411/19. 5 Order.
Sorathia's case the issue was, whether a landlord of the structure can be
impleaded as a proper party in the suit, though no relief is claimed
against him. The Hon'ble Supreme Court as well as the Hon'ble Bombay
High Court has held that where the presence of the landlord is necessary
for complete and effectual adjudication of the dispute, though no relief is
sought, as the landlord has a direct and substantial interest in the
demised building for the demolition of which the notice under Section
351 is issued by the defendant corporation.
9. In view of the authorities cited supra, the tenant had filed
the suit against defendant corporation challenging notice under Section
351 of the MMC Act, the landlord filed the chamber summons and the
same was allowed.
10. In this case, the defendant no.2 is already a defendant in
case and on the strength of the submission by defendant no.2 that it is
not necessary party to the suit, the plaintiff is now seeking deletion of
defendant no.2. Though the facts are different, keeping in mind the
legal position emerging from the authorities cited supra, the defence of
defendant no.2 as to whether it is necessary or proper party to the suit
will have to be considered.
11. In this case, admittedly the defendant no.2 is the owner of
the land. He claims to be the owner of the land on which the building
sought to be demolished, is existed. In case the suit is dismissed and the
building is required to be pulled down and the land is to be redeveloped,
certainly this process will affect the rights of defendant no.2 being the
owner of the land. Thus, the outcome of the suit, one or other way, is
likely to affect the rights of defendant no.2.
-- 5 of 7 --
Ch/s No. 1084/19 in Suit No. 1411/19. 6 Order.
12. That apart, a bare reading of the plaint reveals that the
plaintiff has made allegations against defendant no.2 that defendant
no.2 intends to redevelop the property where the suit premises is
situated without entering into any agreement with the plaintiff. It is also
alleged that defendant no.2 has misguided, forced and exerted coercion
upon the tenants of 'A' Wing. Plaintiff has also come with a case that
defendant no.2 is harassing the plaintiff and is acting in breach of
D.C.Rules and MMC laws. In view of all these allegations against
defendant no.2, presence of defendant no.2 is necessary in the suit. The
issues raised by the plaintiff in view of the above allegations cannot be
properly and effectively decided in absence of defendant no.2.
13. I have gone through the Mohamed Hussain's case. In the
authority cited supra, respondent nos.2 and 3 had filed the chamber
summons to be added as parties in the suit challenging notice under
Section 351 on the ground that they have interest in the suit house as
they are the owner in view of the agreement of which specific
performance was sought by them in a suit pending before the Court.
14. In this case, the facts are different. Thus, the authority cited
supra, with respect, is not applicable to the present case.
15. Considering that the plaint contains allegations against
defendant no.2 and that the deletion of defendant no.2 is sought on the
basis of submission made by defendant no.2, the chamber summons
cannot be allowed. In view of the allegations against defendant no.2 and
the rights of defendant no.2 involved in the suit, I hold that defendant
no.2's presence is required in the suit to decide the suit properly and
effectively. Consequently I hold that defendant no.2 is not only the
-- 6 of 7 --
Ch/s No. 1084/19 in Suit No. 1411/19. 7 Order.
proper party but also a necessary party in view of allegations levelled
against defendant no.2. Hence chamber summons is devoid of merits.
Consequently I pass following order :
ORDER
1. Chamber Summons No. 1084/2019 is dismissed.
2. Costs in cause.
(A.N. MARE)
Judge,
03/09/2019. City Civil Court, Mumbai.
Dictated On : 03/09/2019.
Transcribed on : 09/09/2019.
HHJ Signed on : 16/09/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
17/09/2019 4.24 p.m. Miss M.A.Kulkarni
Name of the Judge (With
Court Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
03/09/2019
JUDGEMENT /ORDER signed
by P.O. on
16/09/2019
JUDGEMENT /ORDER
uploaded on
17/09/2019
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