Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch/Sum. 924/18 in Stamp No.4426/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.924 OF 2018
IN
STAMP NO.4426 OF 2018
Niranjan Krishna Panda
of M/s Panda Food Express
Occ. Business, Indian Inhabitant,
Residing at Baba Apartment,
4th Floor, Navpada, Kurla (W),
Mumbai – 400 072. Plaintiff.
V/s.
The Municipal Corporation of Greater Bombay
A Body corporate constituted under the
Bombay Municipal Corporation Act, 1888,
Having its office at Mahapalika Marg,
Opp. CST, Fort, Mumbai – 400 001. Defendants.
And
Mr. Oswald Paul Gomes
Age 60, Occ. Nil,
Adult, Indian Inhabitant of Mumbai,
Residing at Braze Gome Chawl,
Opp. Vishnu Diary Navpada,
Kurla (W), Mumbai400 070. Applicant.
Advocate Mr. Nilesh Pandey for Applicant.
Advocate Mr. Pratap Singh for Plaintiff.
Advocate Ms. Hajare for Defts./BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 18th JULY, 2018
ORAL ORDER
The applicant has filed present chamber summons for
impleading him as a party.
-- 1 of 5 --
:2: Ch/Sum. 924/18 in Stamp No.4426/18
2. Applicant submits that he alongwith the other owners and
landlord in respect of premises, to whom the license issued is the
subject matter of the suit. The plaintiffs are making unauthorized use of
the premises, thereby changing the user of the premises from residential
to commercial without therein any permission or any sanction from
applicant and also from Municipal corporation. Plaintiffs have already
filed L.C. Suit No.2820/17 against defendants for the same relief and
applicant is party/defendant in that suit. In that suit adinterim relief
was refused by this Court after perusal of documents. The plaintiff
hidden the said fact and filed present suit without making applicant as a
defendant. The applicant being the owner and landlord of the suit
property, he is the proper and necessary party, hence, prayed to allow
his chamber summons.
3. Plaintiff filed their reply, thereby strongly objected present
chamber summons on the ground that the plaintiff is challenging the
notice issued by BMC under Section 394 of MMC Act. The said notice is
issued in the name of plaintiff and not in the name of applicant,
therefore, the applicant is no way concerned with the said license and
hence, not necessary to be joined as party. The applicant is the owner
of the suit chawl premises and he already filed application RAE in the
Small Cause Court against the plaintiff. Hence, the chamber summons
taken out by the applicant be dismissed.
4. Heard advocate for applicant, plaintiff and defendants.
The applicant relied upon the citation reported in 2001 (3)
Mh.L.J. in the case of Adam A. Sorathia and Anr., Vs. Municipal
Corporation of Gr. Bombay and anr., in which it has held that
-- 2 of 5 --
:3: Ch/Sum. 924/18 in Stamp No.4426/18
Bombay Municipal Corporation Act, S.351 and
Civil Procedure Code, O.1, R.10 – Addition of parties –
Suit by tenant against Bombay Municipal Corporation
challenging notice under Section 351 of Bombay
Municipal Corporation Act directing removal of
unauthorized extension of shop premises –
Impleadment of landlords as parties – Landlords have
direct and substantial interest in demised premises
and would be able to place all facts before trial court
for adjudicating upon issues effectually and were
proper parties though relied of perpetual injunction
was sought only against Municipal Corporation –
Names of landlords ordered to be added as party
defendants.
5. Per contra advocate for the plaintiff relied upon judgment
of Hon'ble Apex Court reported in 2017 (6) ALL MR 420 (S.C.) in
the case of Mohammed Hussain Gulam Ali Shariffi V/s Municipal
Corporation of Greater Bombay and Ors, in which it has held that
Necessary Party – Suit filed only against
Municipal Corporation – Applicants claiming to have
purchased suit property from plaintiff, sought to be
added as defendants – Held, for deciding legality of
demolition notice, presence of applicants is not
required – Rights between plaintiff and applicants
regarding suit property can be decided in separate suit
– In instant suit, applicants are neither necessary nor
proper parties.
-- 3 of 5 --
:4: Ch/Sum. 924/18 in Stamp No.4426/18
6. After going through the pleadings of the plaint, avernment
in the chamber summons and the reply filed by the plaintiff and after
going through the citation relied by both the parties, it is revealed that
the applicant is the owner of the suit premises. The applicant has given
the suit premises to the plaintiff for residential purpose. In the said
premises the plaintiff is running the business in name and style 'M/s
Panda's Food Express. The present suit is filed regarding the health
license of M/s Panda's Food Express which is cancelled by BMC. Earlier
also plaintiff filed suit no.2820/17, in which the plaintiff made
applicant as a party/defendant no.3. The present suit is regarding the
same subject matter. Though in the present case no relief is sought
against the applicant, but on the complaint made by the applicant the
BMC has issued the notice. The applicant being the landlord of the said
chawl, is responsible for any illegal act committed by his tenant. The
BMC has issued notice dtd. 12.01.2018 under Section 394(3) to
plaintiff in respect of keeping eating house on the said address. If
tomorrow anything dangerous to life, health and property is happened,
being the land owner the applicant is also responsible for the same as
he has given the suit premises to plaintiff on rental basis. Hence, the
citation relied by the plaintiff is not applicable in the present case. If the
applicant added as a party, no prejudice is going to cause to the
plaintiff. Hence, I proceed to pass following order :
ORDER
1. Ch/Sum No. 924/17 is allowed.
2. Direction given to plaintiff to carry out necessary
amendment in the plaint as per the Rule within 15 days.
-- 4 of 5 --
:5: Ch/Sum. 924/18 in Stamp No.4426/18
3. Ch/sum. Disposed of accordingly.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 18/07/2018.
Dictated on : 18/07/2018
Transcribed on : 20/07/2018
Signed on : 21/07/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23/07/2018 At 11.05 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
18/07/2018
Judgment/Order signed by P.O. on 21/07/2018
Judgment/Order uploaded on 23/07/2018
-- 5 of 5 --