Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons no. 869 of 2018
In
L.C.Suit No2319 of 2017
MHCC010064902018
Veera Education Pvt. Ltd ..Plaintiffs
V/s
Mumbai Municipal Corporation
of Gr. Mumbai ..Defendants
And
Shiromani"A" wing Chs Ltd ..Proposed defendant
No. 2
Adv. Sandip Jalan for applicant
Advocate Mr. Milan Desai for plaintiff
Advocate G.O.Giri for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 4th May, 2019
(Court Room No.06)
O R D E R
1 Applicant Shiromani"A" Wing CHS Ltd. Parel, Mumbai400
012 has taken out this chamber summons to implead the society as a
defendant no. 2 in the suit under order 1 rule 10 (2) of Code of Civil
Procedure, 1908.
Facts in brief are as under:
2 Plaintiff has filed the present suit for declaration and
injunction in respect of the notice issued by defendant corporation U/s
351 of MMC Act and order passed thereon. Plaintiff claims to be the
absolute owner of garage admeasuring about 10.7 mts x 8mts (Suit
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2
Premises). Complaints have been filed before defendant Municipal
corporation and also writ petition no. 594 of 2016 is filed before
Hon'ble High Court. The writ petition is pending. Accordingly
defendant MCGM issued notice to the plaintiff dated 3/08/2017 U/s
351 of MMC Act 1888. Subsequently the defendant MCGM has passed
speaking order and directed the plaintiff to remove unauthorized
construction.
3- According to applicant, both the societies i.e. applicant and
Shiromani"B"wing CHS Ltd share common parking place i.e. the space
of the suit premises. The suit premises is common property of both the
societies. Due to the act of the plaintiff both the societies have deprived
their rights while using the common space. Applicant/society had
interested in the suit premises and therefore applicant is necessary and
proper party to the suit and accordingly prayed to allow the chamber
summons.
4 Plaintiff filed affidavit in reply of Mr. Sanjay Veera, director of
plaintiff company. Plaintiff denied that the suit premises is a common
space of both the societies. Plaintiff denied that he made unauthorized
construction. Plaintiff denied that applicant is necessary and proper
party to the suit.
5 According to plaintiff, he has acquired the suit premises
from the applicant/developer. The present action is initiated by the
society at the instance of Dr. Navin Kumar Gupta resident of
applicant/society. Applicant is neither necessary nor proper party to the
suit. Hence, prayed to dismiss the notice of motion.
6 I have heard Mr. Sandip Dalal advocate for applicant and
Milan Desai advocate for plaintiff.
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3
7 In the present suit plaintiff has challenged the notice U/s
351 of the MMC Act issued by MCGM and order passed thereon. The
notice alleges unauthorized encroachment on ground floor parking
place with the help of brick masonry walls admeasuring 10.7 mts
x8mtsx6 mt. Applicant has come with a specific case that the said space
wherein the suit premises is situated is a common parking place of both
the societies.
8 A necessary party is one in whose absence an effective
decree cannot be passed. A proper party is one whose presence is
necessary to determine controversy between the parties. From the
perusal of documents, I find that said space is common parking place of
the members of the applicant society. However, the construction is
made there. Thus, the rights of applicant society are affected. Hence, in
such a circumstances, I find that applicant society is a necessary and
proper party to the suit. Therefore, chamber summons deserves to be
allowed. Accordingly following order:
ORDER
1Chamber summons no. 869/18 is hereby made absolute in terms of
prayer clause (a)
2 Plaintiff is directed to carry the amendment within two weeks.
3 Chamber summons no. 869 of 2018 is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 4/05/2019
Typed on : 6/05/2019
Signed by HHJ. :6/05/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
8/05/2019 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
4/05/2019
JUDGEMENT/ORDER signed by
P.O. on
6/05/2019
JUDGEMENT/ORDER uploaded
on
8/05/2019
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