Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO. 1201 OF 2019
IN
L.C. SUIT (STAMP) NO. 6416 OF 2019
Bright Brothers Enterprises Builders )
and Developers )...Plaintiff
)
Versus )
Municipal Corporation of Greater Mumbai )...Defendants
And )
Mohammed Ahmed Umer Shaikh )..Applicant
Appearance:
Advocate Mr. Mujahid Mulla for applicant.
Advocate Mr.Devendra Singh for plaintiff.
Advocate Mr.M.H.Parashurami a/w. Mr. Sutar for Defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
(C.R.No.06)
DATE : 29th JULY, 2019.
O R D E R
This is a chamber summons taken out by the applicant for
adding party to him as defendant. The plaintiff resisted this chamber
summons by giving its reply. Read the chamber summons, Reply of the
plaintiff. Heard both the learned counsels on behalf of both the sides
at length. Perused the record.
2. In short, it is the contention of the applicant that he is
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RTI and Social Activist and brought to notice of defendant and other
statutory authorities various illegal constructions and encroachment.
He has filed Writ Petition (O.S) no. 1932/2017, PIL (O.S.) no. 19/2018
before Hon'ble High Court at Mumbai and chamber summons in L.C.
Suit No.205/2016, L.C. Suit No.1377/2018 and specially illegal
construction in suit premises. He has filed public Interest Litigation No.
119/2018.
3. The plaintiff has suppressed material fact from this Hon'ble
Court and came with unclean hands. The defendant has issued notice
dated 9th August 2016 under section 53(1) of M.R.T.P. Act, 1966 and
the defendant has taken action and demolished illegal construction. The
plaintiff vide its own letter dated 17th April 2017 has admitted that it
has demolished the temporary structures and structures on parking
floors and refuge area in suit premises. The plaintiff vide registered
agreements have sold unauthorised and illegal flats to innocent people
and thereby duped them. The plaintiff after reconstruction of
demolished structures, he has lodged complaint with the defendant for
illegal construction and encroachment carried out at behest of the
plaintiff.
4. The applicant further stated that officer of Fire Brigade the
defendant acting on the complaint, has visited and physically inspected
the said building and vide complaint report bearing no.
FBL/318/RI/262 dated 30th May, 2018 confirmed illegal construction
and encroachment carried out at said building. The parking problems is
growing issue in the city of Mumbai as well considering recent fire
incidents every building needs refuge area during fire emergency.
Hence, such kind of illegal construction and encroachment cannot be
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tolerated and needs to quick action on immediate basis. Hence, this
chamber summons.
5. In response to the chamber summons, the plaintiff has
submitted that the present chamber summons taken out by the
applicant is nothing but an abuse of process of law. The applicant has
not at all concern with the suit premises . The applicant has no locus to
intervene in the suit. The applicant has taken out chamber summons
with malafide intentions and ill motive only in order to harras and
pressurize on one pretext or other. The applicant has not come to this
Hon'ble Court with clean hands and has suppressed various martial
facts from this Hon'ble Court. Though, complaint have been filed by the
present applicant, the right to intervene as defendant in the present suit
as a complainant is neither a necessary nor a proper party. Applicant is
in no way affected by the outcome of suit. On these grounds, the
learned counsel on behalf of the plaintiff requested that the present
chamber summons is liable to be dismissed.
6. In the case of Mohamed Hussain Gulam Ali Shariffi V/s.
Municipal Corporation of Greater Bombay and Ors. reported in
MANU/SC/1710/2016. In the suit before the Hon'ble Supreme Court
the respondents no. 2 and 3 requested for adding to be as defendants
no.2 and 3 as they have interest in ownership in respect of the suit
house. The Hon'ble Supreme Court has taken the view that respondents
no.2 and 3 are neither necessary and nor proper parties to the suit.
Therefore application of the respondents no.2 and 3 has been
dismissed.
7. The above same view of the Hon'ble Supreme Court is
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taken in the case of Shriman Kishor son of Chandrakant Urane V/s.
City of Nagpur Corporation and others in the Writ Petition No. 937
of 2017 and Writ Petition No. 938 of 2017 of the Hon'ble High Court
Of Judicature At Bombay, Nagpur Bench.
8. The same view is also taken by the Hon'ble High Court Of
Judicature At Bombay in the case of Deju Somaya Salian V/s. The
Municipal Corporation of Gr. Mumbai & Ors. holding that the
intervener is one of the coowner of the suit property, is also not proper
and necessary party.
9. On perusal of the present suit, it appears to me that the
plaintiff has filed the present suit against defendant no.1 Municipal
Corporation of Greater Mumbai and its officers i.e. defendants no. 2, 3
and 4 wherein the challenge Notices dated 09.08.2016, 13.04.2017,
01.04.2019 and 12.06.2019 issued by the defendants to the plaintiff. In
the notices impugned in the suit, the main grievance of the defendant
no.1 Municipal Corporation is that the plaintiff has made some
unauthorized construction in the suit premises situated at C.S. No.774
of Byculla Division Building No. 1820, bearing Cess No. E1400 and
E.1401, situated at 5th Kamathipura , Mumbai.
10. On perusal of this chamber summons, it appears to me that
the applicant is the complainant who had filed the complaint against
the plaintiff about unauthorised and illegal construction in respect of
the suit property to the defendants. The applicant who is mere
complainant has not accrued right to as a party in the suit. The
applicant is neither proper nor necessary party in the present suit. To
decide the dispute in between the plaintiff and the defendants, I am of
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the opinion that the only necessary and proper party to the suit is only
the defendant no.1 Municipal Corporation of greater Mumbai who has
issued said notices to the plaintiff. Hence, this chamber summons is
liable to be dismissed. I have proceed to pass following order.
ORDER
Chamber Summons No.1201 of 2019 is hereby dismissed.
Date :29 /07/2019. (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Direct dictated on : 29/07/2019.
Signed by HHJ : 30/07/2019.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
31.07.2019 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR No.06)
Date of Pronouncement of
Judgment/Order
29.07.2019
Judgment/order signed by P.O on 30.07.2019
Judgment/order uploaded on 31.07.2019
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