Final Order 1

Order Details: Chamber summons
Pdf Text: CS 90718 in L.C. SU 165617 : 1 : Dt. 18.07.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 907 OF 2018
(CNR NO. MHCC010068362018)
IN
LONG CAUSE SUIT NO. 1656 OF 2017
(CNR NO. MHCC010074012017)
Safique Ahmed Toufeeq Choudhary ...Plaintiff
Versus
The Municipal Corporation Of
Greater Mumbai ...Defendant
And
Mr. Abdul Gani Nizamuddin Shaikh ...Applicant
CORAM : HER HONOUR JUDGE
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 18.07.2018.
Adv. Mr. B.P. Shukla for Plaintiff.
Adv. Mr. Giri for Defendant / BMC.
Adv. Mr. Tariq Chaudhary for Applicant.
ORAL ORDER
The Present Chamber Summons is taken out by the
Applicant for impleading him as party to the present proceedings.
2. The Applicant claims title in the suit structure. He claims
that he purchased the suit structure from one Mr. Issak Ansari on
20.11.2006. Thereafter he gave the premises on Leave and License
basis to Mr. Mohammed Shafique Khan and Mohammed Naved Agha.
However, in order to grab the suit structure and to evict the Licensee
the Plaintiff had set ablaze in the suit structure. Thereafter, Plaintiff
illegally grabbed the suit structure on the basis of false and bogus
documents. Therefore Applicant claims that he is necessary party to the
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present proceedings.
3. The Plaintiff filed Say and resisted the application. The
Plaintiff expressed ignorance in respect of the structure purchased by
the Applicant. It is specific case of the Plaintiff that the suit structure
and the alleged structure in which Plaintiff is claiming title are not
identical. In order to substantiate the said contention the Plaintiff relied
on Notice issued to the Applicant and the description of the suit
structure mentioned by Applicant. Therefore Plaintiff claims that the
suit structure is not the same in which Applicant is claiming title.
Therefore, Plaintiff submitted that Applicant is not necessary party and
prayed to reject the application.
4. Heard learned Counsel appearing on behalf of both the
parties.
5. Considering the rival submissions made on behalf of both
the parties following Points arise for my determination and I answer the
same together with reasons thereon as under :
POINTS FINDINGS
1. Whether Applicant proves that he is
necessary / proper party to the present
proceeding ?
In the Negative.
2. What Order ? As per final Order.
REASONS
As to Point Nos. 1 and 2 :
6. The Applicant is claiming title in the suit structure. It is his
specific contention that Plaintiff illegally grabbed the suit structure on
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the basis of forged and fabricated documents. In support of his
contention he pointed out that Plaintiff claims that he is in possession of
suit structure prior to 1976 and in support of the said contention
Plaintiff relied on Birth Certificate. It is submitted by the Plaintiff that
he called an information under RTI Act in respect of Birth Certificate
relied by the Plaintiff from the concern Authority. However, as per the
reply given by the concern Authority, the said Birth Certificate is not
issued by the concern Office. Therefore Applicant claims that Plaintiff is
claiming right on the basis of false and fabricated documents.
7. It is further contention of the Applicant that he purchased
the suit structure in the year 2006 from one Issak Ansari. However he
had not produced the copy of the Sale Deed on record. He also claims
that he gave the suit structure on Leave and License basis between
Mohammed Shafique Khan and Mohammed Naved Agha. He produced
the copies of Leave and License Agreement. However, the Applicant not
produced the document by which he got title in the suit property.
8. The Applicant further claims that Plaintiff is in illegal
possession of the suit structure. In the present suit the Plaintiff is
challenging the Notice and order passed by the Corporation. The Notice
and order is addressed to the Plaintiff. The Applicant not filed any
rejoinder to negative contention of Plaintiff that suit structure and the
structure in which applicant is claiming title are not one and the same.
9. Since the suit is filed challenging the action of the
Corporation the Applicant is neither necessary nor proper party. In
order to redress the grievance in respect of alleged forged and
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fabricated documents executed by the Plaintiff the Applicant can file
separate suit. The issue in respect of title, forceful eviction can not be
decided in the present Suit. Moreover the Applicant is not challenging
the Notice issued by the Corporation. So also it is also not his
contention that Notice and order passed by the Corporation is legal and
proper. Therefore his presence is not required for just decision of the
case. The Plaintiff placed reliance on following observations made by
Hon'ble Apex Court in case of Amit Kumar Shaw and Anr. vs. Farida
Khatoon and Anr. 2005 (5) ALL MR (S.C.) 458. In Para 9 and 10 of
the Judgment the Hon'ble Apex Court observed that :
"The object of Order 1, Rule 10 is to discourage
contests on technical pleas, and to save honest and
bona fide claimants from being non suited. The power
to strike out or add parties can be exercised by the
Court at any stage of the proceedings. Under this
Rule, a person may be added as a party to a suit in
the following two cases :
(1) When he ought to have been joined as
plaintiff or defendant, and is not joined so, or
(2) When, without his presence, the
questions in the suit cannot be completely decided."
"The power of a Court to add a party to a
proceeding cannot depend solely on the question
whether he has interest in the suit property. The
question is whether the right of a person may be
affected if he is not added as a party. Such right,
however, will include necessarily an enforceable legal
right."
10. In view of the observations made hereinabove the
Applicant failed to point out his enforceable legal right in the suit
structure. Therefore I do not found any merit in the present Chamber
Summons. Hence, I record my findings at Point No. 1 in the Negative.
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As a result I inclined to pass following Order :
ORDER
Ch/s. No. 907/18 stands rejected.
(SANJASHREE J. GHARAT )
Judge,
City Civil Court,
Gr. Mumbai.
Date : 18.07.2018.
Dictated on : 18.07.2018.
Transcribed on : 23.07.2018.
Signed on : 24.07.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24.07.2018 at 2.45 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
18.07.2018
JUDGMENT/ORDER signed by P.O.
on
24.07.2018
JUDGMENT/ORDER uploaded on 24.07.2018
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