Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch/Sum. 915/18 in Stamp No.7372/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.915 OF 2018
IN
STAMP NO.7372 OF 2018
M/s Omega Engineering Company Plaintiff.
V/s.
1. Municipal Corporation for Greater Mumbai.
2. The Asst. Municipal Commissioner,
3. Asst. Engineer (B&FI), S Ward. Defendants.
And
Shashikant Ramchandra Gawand Applicant.
Advocate Mr. D.A. Thorat for Applicant.
Advocate Ms. Khobragade for Plaintiff.
Advocate Ms. Tondwalkar for Defts./BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 12th JUNE, 2018
ORAL ORDER
The applicant has filed present chamber summons in the
present suit for adding him as a defendant.
2. The applicant submits that he is the coowner of the plot of
land admeasuring 15,000 Sq. Yards bearing survey no.146 Hissa No.1
and 2 corresponding to CTS Nos. 210, 210/1 to 88 of Village Bhandup.
After the death of coowner, applicant alongwith other heirs and legal
representatives of coowner have became the owners of said land, on
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which the suit property is situated. The applicant has enclosed 7/12
extract, Property Registration Card and City Survey Plan alongwith
chamber summons. He also submitted that BMC also issued notice in
their name alongwith the plaintiff under Section 55 of MITP Act dated
28.04.2018. He further submits that he is one of the coowners of the
said land, in which suit premises is illegally constructed. Though he is
the necessary and proper party for adjudication of issues in the present
suit, the plaintiff deliberately and intentionally have not joined them in
the present suit, therefore, he prayed to add him as a defendant.
3. Notice of the present chamber summons issued to plaintiff.
Plaintiff filed their reply, thereby strongly objected present chamber
summons on the ground that the chamber summons filed by the
applicant is not maintainable. The said plot is taken for the
development by the developer and hence the developer is playing proxy
war with the present plaintiff. Skicon Infrastructure is having office at
the said suit land, for which POI is issued for the development in
respect of said land. The Skicon Infrastructure is continuously giving
the complaint against the structure of the plaintiff. Being the developer,
who is pressurizing the plaintiff to vacate the premises and handover
the vacant possession without giving alternate accommodation. There
is no instruction that the applicant is the complainant, on whose
instance the notice is issued. The Skicon Infrastructure had obstructed
the entry of the present plaintiff and caused inconvenience to the
plaintiff and other tenants, against which the complaint has been
addressed to BMC. The notice was been issued for the same. Only with
intention to help the developer, the applicant has filed present
application so as to not provide the alternate accommodation to the
present plaintiff. As the applicant is not the necessary party as alleged
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and neither on the basis of complaint of applicant, the notice is issued.
Hence, they prayed to reject the chamber summons.
4. Heard advocate Mr. Thorat for applicant and advocate Mr.
Khobragade for plaintiff.
After perusal of documents enclosed with the plaint it is
observed that the notice under Section 55 of MITP Act dated
28.04.2018 is also issued to the applicant as a owner alongwith the
plaintiff as a occupier. From the 7/12 extract and Property Card
enclosed with the chamber summons it is revealed that the applicant is
one of the owners of the land, in which suit premises is situated. Even
at the time of argument advocate for the plaintiff admitted that the
applicant is the owner of the land, in which the suit structure is lying.
5. When the Court pointed out, whether the other coowners
have given Power of Attorney to the applicant, he filed present
application. The applicant has filed Power of Attorney dated
10.02.2006, thereby all the other coowners have given Power of
Attorney to the present applicant for giving the development rights in
respect of suit land and any suit arise regarding the same. In that
capacity the applicant on behalf of the coowner, filed present chamber
summons. The applicant also filed Power of Attorney given by applicant
in the name of Mahesh Nagindas Manek, who has filed affidavit in
support of chamber summons.
6. In the present case the applicant referred the citation of
Hon'ble Apex Court reported in (1996) 5 SCC 379 in the case of Aliji
Momonji & Co. V/s Lalji Kavji and Others, in which it is observed
that
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Where the presence of the respondent is
necessary for complete and effectual adjudication of
the dispute, though no relied is sought, he is a proper
party. Necessary party is one without whose presence
no effective and complete adjudication of the dispute
could be made and no relief granted. 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
licenses 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 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. In the context of the question whether
the respondentlanlord had only commercial interest
in the property would not arise.
7. Per contra, the advocate for the plaintiff referred the
citation of Hon'ble Apex Court reported in LAWS (SC)20161262 in
the case of Mohamed Hussain Gulam Ali Shariffi V/s Municipal
Corportaton of Greater Bombay and Ors., in which it has held that
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When the notice under Section 351 of the Act
issued by respondent no.1 (Corporation) to the
appellant is legally valid or not, to decide this
question, only necessary and proper party to the suit is
the Mumbai Municipal Corporation, Greater Mumbai.
When the suit is filed for the legality and
validity, the notice issued by the MMC to the Court is
not called upon to adjudicate the rights between the
tenant and the owner in relation to the suit house. The
same can be decided in the separate suit, which is
pending between the parties. Merely because the 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 of the nature of cause of
action on which the suit is founded.
8. After perusal of citation of Apex Court filed by the plaintiff
it is observed that in that case, the plaintiff filed suit, thereby
challenged the notice issued by BMC under Section 351 of MMC Act, in
which respondent nos. 2 and 3 filed chamber summons to implead them
as a defendant, as they claimed to have the ownership right in the suit
house. The respondent nos. 2 and 3 alleged that one Civil Suit
no.424/08 seeking specific performance of the agreement is filed by
respondent nos. 2 and 3 in relation to the suit house and the same was
pending. The purpose of the citation referred by the plaintiff and the
facts of the present case are totally different. In the citation relied by the
plaintiff, there was a dispute whether respondent nos. 2 and 3 are the
owners of the suit property. In the present case it is not disputed that
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the applicant is the owner of the suit property. Therefore, the citation
of the Apex Court relied by the plaintiff is not applicable in the present
case.
9. The plaintiff also relied on the citation of Hom'ble Bombay
High Court reported in LAWS(BOM)1987134 in the case of Luis
Roberto Vaz V/s Roque Silvestre Vaz, in which it has held that
Order I, Rule 10(2) of CPC – Impleadment of
Parties – Suit for permanent and mandatory injunction
– Filed by one of the coowners against X – Other co
owners are required to be impleaded as parties only
when there is any claim of exclusive ownership in such
suit against other – coowners.
10. In the above citation referred by the plaintiff, the suit is
between the coowners. But in the present case, the suit is not between
the coowners. Therefore, the said citation relied by the plaintiff is also
not applicable in the present case.
11. As per citation relied by the applicant even though no relief
sought against them, being the landlord they are the necessary party to
the suit. In the present case also though plaintiff doesn't seek any relief
against the landlord but being the owner he is the necessary party to
the present suit. In the circumstances, I pass following order :
ORDER
1. Chamber Summons No.915 of 2018 is allowed.
2. The plaintiff is hereby directed to amend the plaint as per
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Rule.
4. Ch/Sum disposed of accordingly.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 12/06/2018.
Dictated on : 12/06/2018
Transcribed on : 13/06/2018
Signed on : 13/06/2018
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:8: Ch/Sum. 915/18 in Stamp No.7372/18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/06/2018 At 5.43 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
12/06/2018
Judgment/Order signed by P.O. on 13/06/2018
Judgment/Order uploaded on 13/06/2018
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