Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch.S. 916-2018 in Suit no. 2278-2018
CNR NO.MHCC01 0068572018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS No. 916 OF 2018
IN
L.C. SUIT NO. 2278 OF 2018
Brinda Abhay Khatau ]...Applicant/Intervener
Proposed Defendant No. 2
In the matter between
Reena Sunit Khatau ]...Plaintiff
Versus
The Municipal Corporation of
Greater Mumbai ].... Defendant
Coram : Shri Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 28th June, 2019.
Appearance:
Ld. Adv. Indira Bhushan for plaintiff.
Ld. Adv. Smt. Patil for defendant/MCGM.
Ld. Adv. Mr.Balasaheb Deshmukh for intervener.
ORDER
1. By this Chamber Summons, the applicant/intervener seeks to be
added as party defendant to the suit.
It is contended that applicant/ intervener has 1/6th undivided
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2 Ch.S. 916-2018 in Suit no. 2278-2018
shares in the suit premises. It is contended that she is occupying the
ground floor and the plaintiff is residing on 2nd floor. It is stated that
the plaintiff and her family members are blocking the staircase. The
construction of plaintiff is illegal. It is contended that the plaintiff to be
added as a party defendant in the suit.
2. The plaintiff opposed the chamber summons. It is contended that
the applicant/ intervener had no locus in the suit structure. The suit
can be decided without including the applicant/ intervener as party in
the suit. The applicant/intervener is not necessary party.
3. The applicant/ intervener had relied upon the following
judgments:
(a) In case of Ramesh HirachandKundanmal V/s MCGM & Ors.1992
(94) BOMLR 853
(b) In case of Chandrakant Dharma Bhonu V/s Pandurang
Ramchandra Dandekar & Ors. AIR 2004 Bom374
(c) In case of Aliji Monoji & Co. V/s Lalji Mavji & Ors. AIR1997
SC 64
(d) In case of Aijaz @ Azaz Mohammed Shaikh V/s MCGM.
4. Heard Learned Advocate for the proposed defendant No. 2 i.e.
applicant/ intervener, Learned Advocate for the plaintiff and Learned
Advocate for defendant corporation.
It is settled law that the plaintiff is dominus litis and had not
bound to sue every possible adverse claimant in the same suit and he
can choose to implead only those persons against whom he wishes to
proceed but the Court may at any stage of the suit direct addition of
parties. A party can be joined as defendant even though the plaintiff
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3 Ch.S. 916-2018 in Suit no. 2278-2018
does not think that he has any cause of action against him. The
question of impleadment of a party has to be decided on the touchstone
of Order 1 Rule 10 which provides that only a necessary and proper
party may be added.
Rule 10(2) gives a wide discretion to meet every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the
necessary party on record. A necessary party is one without whom no
order can be made effectively. 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 on the question involved in the proceeding.
The judicial discretion in addition of parties has to be exercised in view
of all the facts and circumstances of a particular case. The Court is
empowered to join a person whose presence is necessary for the
prescribed purpose and cannot under the rule direct the addition of a
person whose presence is not necessary for that purpose. If the
intervener has a cause of action against the plaintiff relating to the
subject matter of the exist cause of action, the Court has power to join
the intervener so as to give effect to the primary object of the order
which is to avoid multiplicity of actions.
5. The Hon'ble High Court in case of Aliji Momonji & Co V/s Lalji
Mavji & Ors. (1996) 5 Supreme Court Cases 379, stated that in view
of the findings that in the event of the building being demolished, the
right, title and interest of the intervener would directly be affected, the
intervener would be a proper party, though no relief had been sought
for against the intervener.
The Hon'ble Supreme Court has categorically observed that his
title and interest of the intervener would be directly affected for the
building of the structure being demolished.
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4 Ch.S. 916-2018 in Suit no. 2278-2018
6. The Learned Advocate for the plaintiff relied upon the judgment
reported in in case of Mohamed Hussain Gulam Ali Shariffi V/s MMC
& Ors. 2017 (6) ALL MR 420 (S.C.) The Hon'ble Supreme Court
observed paragraph no. 13 to 18 as under:
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 & 3 is not at all required. In other words, the suit can
be decided even in the absence of respondent nos. 2 and 3.
15) It is a settled principle of law, which does not need any
authority to support the principle, that the plaintiff being a dominus litis
cannot be forced to add any person as party to his suit unless it is held
keeping in view the pleadings and the relief claimed therein that a
person sought to be added as party is a necessary party and without his
presence neither the suit can proceed and nor the relief can be granted.
It is only then such person can be allowed to become party, else the suit
will have to be dismissed for nonimpleadment of such necessary party.
Such does not appear to be a case here.
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5 Ch.S. 916-2018 in Suit no. 2278-2018
16) We do not find that the presence of respondent nos. 2 and
3 in the facts of this case is required for deciding the legality of notice
impugned in the suit on merits because the dispute centers around the
question of legality and validity of the notice which, as mentioned
above, arises between respondent no. 1, who has issued the notice, and
the person to whom it is given i.e. appellant.
17) In the suit in question, the Court is not called upon to
adjudicate the rights between the appellant and respondents nos. 2 and
3 in relation to the suit house, Any such dispute, if arises, the same can
be decided in the separate suit, which is pending between the parties or
may be field, if required, by the parties against each other but such
dispute cannot be tried on the cause of action pleaded in the present
suit by the appellant where the lis is essentially between the appellant
(plaintiff) and respondent no. 1. Merely because th suit house is the
subject matter between all the parties is no ground to get the dispute
arising between the parties settled in one suit regardless of the nature of
cause of action on which the suit is founded.
18) We cannot, therefore, agree with the reasoning of the two
Courts that since respondent nos. 2 and 3 are proper parties (though
not necessary) to the suit and, therefore, they should be arrayed as
party defendants.
It was observed by the Hon'ble Court that plaintiff cannot be
forced to add any person as party to his suit unless it is held keeping in
view of pleadings that person sought to be added as a party is a
necessary party and without presence neither the suit can proceed nor
the relief can be granted. It is only then such person can be allowed to
become party, else the suit will have to be dismissed for non
impleadment of such necessary party. It is observed that in order to
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6 Ch.S. 916-2018 in Suit no. 2278-2018
decide the legality of the notice, the presence of the intervener is not
necessary. It is observed that the Court is not called upon to adjudicate
the rights between the proposed respondents. It was further held that
merely because the suit house is the subject matter between all the
parties is no ground to get the dispute arising settled in one suit
regardless of the nature of cause of action on which the suit is founded.
7. The Hon'ble Bombay High Court relying upon the judgment in
Civil Appellate Jurisdiction in Writ Petition No. 7123/2018 in case
of Deju Somaya Salain V/s MMC & Ors, observed that the Court is
bound by the later judgment of the Hon'ble Supreme Court i.e.
Mohamed Hussain Gulam Ali Shariffi V/s MMC & Ors., 2017(6) ALL
M.R. 420 (S.C.) The order of the Trial Court adding the intervener as
party was in the set aside.
8. Admittedly in the present suit, the notice under Section 55 of the
MRTP Act is challenged. In the light of the judgment in case of
Mohamed Hussain Gulam Ali Shariffi V/s MMC & Ors. The
intervener cannot said to the necessary party.
The legality of the impugned notice in the suit is to be decided on
merits. The disputes centers between plaintiff and the corporation and
the disputes between plaintiff and the intervener cannot be settled in
the present suit.
9. So also the Hon'ble High Court in case of Deju Somaya Salain
V/s MMC & Ors. had observed that it is bound the later judgment of
the Supreme Court in case of Mohamed Hussain Gulam Ali Shariffi
V/s MMC & Ors. which is later of the judgment in case of Aliji
Momonji & Co V/s Lalji Mavji & Ors. (1996) 5 Supreme Court Cases
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7 Ch.S. 916-2018 in Suit no. 2278-2018
379.
This Court is also bound by the later judgment of the Supreme
Court in case of Mohamed Hussain Gulam Ali Shariffi V/s MMC &
Ors. and the judgment of the Hon'ble High Court in case of Deju
Somaya Salain V/s MMC & Ors.
The application for adding the proposed defendant i.e. applicant/
intervener therefore cannot be entertained.
In the result, following order is passed.
ORDER
Chamber Summons No. 916 of 2018 is rejected.
(Sanjay N. Yadav)
Judge,
Date: 28.06.2019 City Civil Court, Mumbai.
Dictated on : 28.06.2019
Transcribed on : 28.06.2019
Signed by HHJ on : 03.07.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.07.2019 at 5.20 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. S. N. Yadav
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
28.06.2019
JUDGMENT/ORDER signed by
P.O. on
03.07.2019
JUDGMENT/ORDER uploaded
on
03.07.2019
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