Order 2

Order Details: Chamber summons
Pdf Text: Draft CS in L.C. SU 135718 : 1 : Dt. 20.06.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT CHAMBER SUMMONS
IN
LONG CAUSE SUIT NO. 1357 OF 2018
(CNR NO. MHCC010064602018)
Mr. Jalaluddin Hukumullah Shaikh ...Plaintiff
Vs.
Municipal Corporation Of Greater Mumbai ...Defendant
And
Nirmal Lifestyle Ltd. ...Applicant /
Proposed
Defendant No.2
CORAM : HER HONOUR JUDGE
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 20.06.2018.
Adv. Ms. Vaibhavi Pawar a/w. Adv. Mr. Tiwari
h/f. Adv. Mr. Kudalkar for Plaintiff.
Adv. Ms. Kamble for BMC / Defendant.
Adv. Mr. Kadam for Applicant /Proposed
Defendant no. 2.
ORAL ORDER
The present Chamber Summons is moved by the Applicant
for impleading him as a party to the present proceeding under the
provisions of Order I, Rule 10 of the Code of Civil Procedure. The
Applicant claims that he is the owner of suit property. He further
claims that, he purchased the suit property by Registered Conveyance
from the erstwhile owner and his name is available on 7/12 extract.
Therefore, he is necessary party to the present proceeding.
2. The plaintiff raised strong objection for allowing the
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Chamber Summons filed by the applicant. It is submitted on behalf of
the plaintiff that suit is filed challenging the Order/Notices issued by
defendant No. 1 i.e. M.C.G.M. Therefore, applicant is not having any
role to play in the present matter. The plaintiff claims that Applicant is
neither necessary nor proper party to the present proceeding. In
support of the said contention the learned counsel appearing on behalf
of plaintiff placed reliance on observations made by Hon'ble Apex Court
in case of Mohamed Hussain Gulam Ali Shariffi Vs. Municipal
Corporation of Greater Bombay & Ors. reported in 2017(6) ALL MR
420 (S.C.). The Hon'ble Apex Court in an identical issue in para Nos. 13
to 18 observed that, for deciding the legality of the demolition notice,
presence of owner is not required. The Ld. Counsel for the plaintiff
further placed reliance on observations made by the Hon'ble Bombay
High Court in case of Luis Roberto Vaz v. Roque Silvestre Vaz and
another reported in AIR 1988 BOMBAY 300 (PANJI BENCH (GOA)).
3. Per contra it is the contention of the applicant that he being
owner of the suit property he is necessary party to the present suit. In
support of his claim of ownership he filed the copy of Deed of
Conveyance executed on 12.12.2005. The Applicant claims that said
Deed of Conveyance is not challenged by the plaintiff. However it
appears that the mutation entry caused on basis of Conveyance Deed
dated 18.09.1995 regarding the names of purported owners is under
challenge. The applicant preferred Revision Application before SDO.
The said Appeal came to be allowed. Thereafter the said order passed
by the SDO is challenged before the Deputy Collector (Appeals M.S.D.)
and the same appeal came to be dismissed. Thereafter plaintiff and
others again challenged the said order before the Additional
Commissioner Konkan Division. The said appeal also came to be
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dismissed.
4. Thereafter the purported owners and plaintiff challenged
the said order before Revenue Minister. Even the Revenue Minister
rejected the Appeal. Thereafter the plaintiff and purported owner
challenged the order of Revenue Minister by filing Writ Petition bearing
No. 13876 of 2016 which is still pending.
5. It is pertinent to note that the said proceeding is in respect
of challenging the mutation entry caused showing the purported owners
as 'Kabjedar'. The Deed of Conveyance executed in favour of the
Applicant is not under challenge. The 7/12 extract stands in the name
of Applicant. Therefore the applicant filed documentary evidence and
made out primafacie case to show that he is the owner of the suit
property. He further claims that being owner he is having rights in the
suit property. Therefore in the event any order is passed as regards to
the suit property then his rights would be materially affected. Therefore
he prayed to add him as a defendant no. 2. In support of his contention
he placed reliance on observations made by Hon'ble Apex Court in case
of M/s. Aliji Monoji & Co. vs. Lalji Mavji and others reported in AIR
1997 Supreme Court 64
6. The Hon'ble Apex Court in para 5 of the judgment observed
that :
"The controversy is no longer res integra. It is
settled law by catena of decisions of this Court that
where the presence of the respondent is necessary for
complete and effectual adjudication of the dispute,
though no relief is sought, he is a proper party.
Necessary party is one without whose presence no
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effective and complete adjudication of the dispute could
be made and no relief granted. The question is : whether
the landlord is a necessary or proper party to the suit for
perpetual injunction against the Municipal Corporation
for demolition of demised building ? The landlord has a
direct and substantial interest in the demised building
before the demolition of which notice under Section 351
was issued. In the event of its demolition, his rights
would materially be affected. His right, title and interest
in the property demised to the tenant or licencee would
be in jeopardy. It may be that the construction which is
sought to be demolished by the Municipal Corporation
was made with or without the consent of the landlord or
the lessor. But the demolition would undoubtedly
materially affect the right, title and interest in the
property of the landlord. Under those circumstances, the
landlord necessarily is a proper party, though the relief
is sought for against the Municipal Corporation for
perpetual injunction restraining the Municipal
Corporation from demolition of the building. Under
those circumstances, the question of the commercial
interest would not arise. In Ramesh Hirachand
Kundanmal's case (1992 AIR SCW 946) [supra], this
Court had pointed out in para 18 of the judgment that
the notice did not relate to the structure but to two
chattels. Original lessee from the landlord had no direct
interest in that property. Under these circumstances, it
was held that the second respondent has no direct
interest in the subject matter of the litigation and the
addition thereof would result in causing serious
prejudice to the appellant and the substitution or the
addition of a new cause of action would only widen the
issue which was required to be adjudicated and settled,
It is true, as pointed out by Shri Nariman that in para
14, this Court in that case had pointed out that what
makes a person a necessary party is not merely that he
has relevant evidence to give on some of the questions
involved; that would only make him a necessary witness.
It is not merely that he has an interest in the correct
solution of some question involved and has thought of
relevant arguments to advance. The only reason which
makes it necessary to make a person a party to an
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action is that he should be bound by the result of the
action and the question to be settled, therefore, must be
question in the action which cannot be effectually and
completely settled unless he is a party. The line has been
drawn on a wider construction of the rule between the
direct interest or the legal interest and commercial
interest. It is not necessary for the purpose of this case to
go into the wider question whether witness can be a
proper and necessary party when the witness has a
commercial interest. This Court in New Redbank Tea
Co. Pvt. Ltd. vs. Kumkum Mittal [(1994) 1 SCC 402]
has pointed out that respondent 11 who filed a suit for
specific performance in the High Court was sought to
come on record in the suit in which he had no direct
interest in the pending matter. Under those
circumstances, this Court had held that respondent 11
was neither necessary nor proper party in the leasehold
interest involved in the suit. In Union of India & Anr.
vs. District Judge, Udhampur [(1994) 4 SCC 737] the
Union of India who ultimately had to bear the burden of
payment of the compensation was held to be a necessary
party under Order 1, Rule 10, CPC for determination of
the compensation in respect of the acquired land. In
Bihar State Electricity Board vs. State of Bihar, [(1994)
Supp. (3) SCC 743], the same question was also
reiterated and it was held that the Electricity Board was
a person interested and also a necessary party. In Anil
Kr. Singh vs. Shivnath Mishra [(1995) 3 SCC 147] :
(1995 AIR SCW 1782), similar question was answered
holding that the respondent was a necessary party.
In view of the observations made by Hon'ble Apex Court landlord /
owner is the necessary party.
7. The applicant further placed reliance on observations made
by Hon'ble Bombay High Court in case of Madanlal Uttamchand
Desarda vs. Jugalkishor Shankarlal Bharuka reported in 1997(2)
ALL MR 575 the Hon'ble Bombay High Court in Para No. 10 of the
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judgment observed that :
Para 10 :
"In support of this contention, the learned
Counsel for the petitioner has relied upon the decision
of the Supreme Court in the case of M/s. Aliji
Momonji & Company Vs. Lalji Mavji & Others (JT
1996 (7) S.C. 53). The facts appearing in the matter
before the Supreme Court and the facts in the present
case are similar. There also, the Bombay Municipal
Corporation had issued a notice on the tenant
regarding the unauthroised construction carried out
by the tenant and had proposed for the pulling down
the portion of the building where unauthorized
construction was carried out and the tenant filed suit
for injunction against the Bombay Municipal
Corporation. The Apex Court has held that as the
landlord has a direct and substantial interest in the
demised building before the demolition of which
notice under Section 351 of the Municipal
Corporation Act was issued, in the event of its
demolition, his rights would be materially affected
and, in such circumstances, he is the proper party to
the suit. It is also observed, that even though no relief
is sought against the landlord, he would be proper
party to the suit."
8. The facts and circumstances in the cited case and present
case in hand are identical. In reply to the citation relied by the plaintiff
it is submitted by the applicant that the observations made by Hon'ble
Apex Court in case of Aliji Monoji (cited Supra) earlier in time.
However the said judgment is not considered in the judgment relied by
the plaintiff which is passed by a coordinate bench. Therefore applicant
claims that the judgment relied by the plaintiff are per incurium.
9. It is settled law that plaintiff being a dominus litus can not
be forced to add any person as party to his suit. In the judgment relied
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by the plaintiff in case of Mohd. Hussain cited (Supra) there was
intersay dispute between tenant and owner. Therefore it is observed
that the said controversy can not be decided in the suit filed by the
tenant challenging validity of notice issued under 351 of MMC Act. As
stated earlier the Conveyance Deed of the applicant is not under
challenge. Therefore, if any order is passed without impleadings him as
a party to the proceedings, then his rights will be materially affected.
The citation relied by the Applicant are more applicable to present case
in hand. Moreover his presence is required for just adjudication of
dispute. Therefore in my view he is proper party to the proceedings.
Hence, I proceed to pass following order :
ORDER
1. Draft Ch/Sum allowed and made absolute in
terms of prayer clause (a).
2. Plaintiff is directed to add Applicant as
defendant no. 2.
3. Ch/sum be registered for statistical purpose.
(Sanjashree J. Gharat )
Additional Sessions Judge,
City Civil & Sessions Court,
Gr. Mumbai.
Date : 20.06.2018.
Dictated on : 20.06.2018.
Transcribed on : 20.06.2018.
Signed on : 26.06.2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27.06.2018 at 3.15 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
DR(SMT) SRISHTY NEELKANTH (C.R.
No.02)
Date of Pronouncement of
JUDGMENT/ ORDER
20.06.2018
JUDGMENT/ORDER signed by P.O.
on
26.06.2018
JUDGMENT/ORDER uploaded on 27.06.2018
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