Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons No. 957/2018 ..1.. In L.C. Suit No. 556/2018
CNR NO.MHCC010070782018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO. 957 OF 2018
IN
L.C. SUIT NO. 556 OF 2018
Mr. Faiyaz Abdul Aziz,
Aged : 50 Years, Occ. : Business,
Running his Business in the name and Style
of "B.K.C. Foor Wear" at Shop No. 3,
Ground Floor, 1/448, Opp. Sasy Mall,
New Mill Road, Kurla (West),
Mumbai 400 070. ...Plaintiff.
Versus
1. The Municipal Corporation of
Gr. Mumbai,
Having their Head Officer At :
Mahapalika Building,
Opp. C.S.T. Railway Station,
Mumbai 400 001.
2. Designated Officer,
Assistant Engineer (Building and Factory),
Mumbai Municipal Corporation, "L" Ward,
Municipal Market Building, S. G. Barve Marg,
Kurla (West), Mumbai 400 070. ...Defendants.
AND
1. Jamiat Ahlehadees Education Society,
Its Registered Office At :
Maulana Azad High School Building,
Ahlehadees Manzil, Mominpura,
31D, Maulana Azad Road,
Mumbai 400 011.
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Chamber Summons No. 957/2018 ..2.. In L.C. Suit No. 556/2018
2. Ibrahim Abdul Kader Mansuri,
Constituted Attorney,
Residing At : 32/34 Umar Khadi Cross Lane,
K.M.T. IInd Building, (Maniyiar Building),
3rd Floor, Room No. 22, Mumbai 400 009. ...Interveners.
Appearance :
Mr. A. A. Pandey, Advocate for Plaintiff.
Ms. Chavan, Advocate for defendant/MCGM.
C.A. of Applicant Ibrahim Abdul Kadar Masuri.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 24TH OCTOBER, 2019.
O R A L O R D E R
The applicant has taken out Chamber Summons for its
impleadment as defendant No. 2 on the ground that the plaintiff has
falsely claimed to be its tenant, by mentioning wrong address of the suit
shop has played fraud upon the Court and has secured adinterim relief.
2. In brief the applicant’s case is that, it is an Educational
Society and Trust duly registered. It is situated at 448, New Mill Road,
Kurla (West), Mumbai. It is neither the landlord nor owner of shop No.3
mentioned as suit premises in the plaint. It is not the owner of the
premises i.e. Building No.1/448. The plaintiff has mentioned the
address of shop No.3 on the ground floor in the building No.1/448
which is not owned by the applicant. Therefore, there was no question
to serve said notice under Section 351 on the plaintiff at said address.
The plaintiff has wrongly claimed that the applicant is the owner of
building No.1/448 in which the suit shop allegedly exists. The plaintiff
has no locus to maintain the suit. The impugned notice is issued in the
name of the applicant which could not be challenged by the plaintiff by
filing a suit. The plaintiff does not have any rent receipt issued by the
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Chamber Summons No. 957/2018 ..3.. In L.C. Suit No. 556/2018
applicant. The plaintiff has mentioned address at 448 as well as at
building No.1/448. The plaintiff has misled and misguided this Court by
playing fraud. The illegal construction is carried out on the land of the
applicant. The plaintiff has claimed that only landlord can give the
details about the construction. In order to expose the plaintiff’s fraud
applicant’s present in the suit is necessary. The applicant being the
owner and landlord of Muslim Jamat Khana will be in a better position
to throw light on the controversy on this aspect.
3. Chamber Summons is opposed on the ground that the
plaintiff is tenant of the applicant. However, considering the
controversy raised in the suit, the applicant’s presence in present suit is
not necessary to effectively decide suit wherein the challenge is to a
notice issued under Section 351 of M.M.C. Act. The statement regarding
plaintiff’s tenancy and the alleged fraud by the plaintiff on the Court are
false.
4. Perused. Heard.
5. The applicant's constituted attorney argued the Chamber
Summons in person. He submitted that the applicant is the complainant
on whose complaint impugned notice was issued. It is also the owner of
the building in which the suit premises is situated. In his reply the
plaintiff has admitted that the applicant is the landlord. The documents
annexed to the plaint reveal that plaintiff has relied upon two sets of
documents, one revealing address at building No.448 and another
revealing the address at building No.1/448. Any order in the suit will
affect the applicant’s interest. Applicant’s presence is necessary to
decide the lis in the suit effectively and therefore the applicant be added
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as a party to the suit. In support of his submission he relied upon M/s.
Aliji Momonji & Co. V/s. Lalji Mavji & Ors, JT 1996 (7) 53.
6. On the other hand the Advocate for plaintiff has submitted
that in a suit challenging notice under Section 351 of the M.M.C. Act,
the presence of owner is not necessary. He further submitted that the
applicant, being landlord, is not necessarily to be a party to present suit
since the plaintiff had challenged a notice under Section 351 of M.M.C.
Act. The reliefs sought are only against the Municipal Corporation.
Therefore, the only necessary party is Municipal Corporation. In support
of his submission he relied upon Mohamed Hussain Gulam Ali Shariffi
V/s. Municipal Corporation of Greater Bombay and Ors., 2017 (6)
ALL M.R. 420 (S.C.), the judgment dated 04.04.2018 of the Hon’ble
Bombay High Court in Writ Petition No. 937/2017 and Writ Petition
No. 938/2017, the judgment dated 24.09.2018 of the Hon’ble Bombay
High Court in Writ Petition No. 7123/2018 and the order dated
18.01.2019 in Writ Petition No. 5528/2018.
7. In M/s. Aliji Momonji & Co.'s case the Hon’ble Supreme
Court has observed that,
"In view of the finding that in the event of
building being demolished, right, title and interest of the
landlord would directly be affected, the landlord would
be a proper party, though no relief has been sought for
against the landlord. The High Court, therefore, was
right in refusing to interfere with the order passed by the
trial Court impleading the landlords."
8. In Mohamed Hussain Gulam Ali Shariffi's case the
Hon’ble Supreme Cort has held,
"In our considered opinion, having regard to
the nature of the controversy, which is the subject
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Chamber Summons No. 957/2018 ..5.. In L.C. Suit No. 556/2018
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 (( of
S.L.P. Paper Book).
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 and 3 is not at all required. In other
words, the suit can be decided even in the absence of
Respondent Nos. 2 and 3."
9. In the case of Shriman Kishor son of Chandrakant Urane
V/s. City of Nagpur Corporation and Ors., in Writ Petition No.
937/2017 and 938/2017, dated 04.04.2018, the Hon’ble Bombay
High Court has held,
"In the light of the aforesaid law, if the
impugned order is perused, it can be seen that the only
reason given by the trial Court for directing addition of
respondent Nos. 2 to 4 is that the decision in the suit
would affect the rights of the said respondents. As
noted above, the notice in question merely informs the
plaintiff that the property in question was in a
dilapidated condition. In the suit, there is no relief
sought against the owners of the property. Merely
because it has been averred in the plaint that the said
notice was issued at the behest of respondent Nos. 2 to
4 would not be sufficient to direct addition of
respondent Nos. 2 to 4. It is always open for the said
respondents to adjudicate their rights as against the
petitioner. In the present suit, they are not found to be
necessary parties."
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Chamber Summons No. 957/2018 ..6.. In L.C. Suit No. 556/2018
10. In the case of Deju Somaya Salian V/s. The Municipal
Corporation of Gr. Mumbai & Ors., in Writ Petition No. 7123/2018,
dated 24.09.2018, the Hon’ble Bombay High Court has observed,
"It is not the case of the petitioner (original
plaintiff) in the plaint that the respondent No. 3 is
neither landlord nor the actual occupant of the suit
property. The reliefs claimed in the suit filed by the
petitioner is only for challenging the validity of the
notice issued by the respondent No.1 under Section
354A of the Mumbai Municipal Corporation Act. I am
respectfully bound by the later judgment of the Supreme
Court in case of Mohamed Hussain Gulam Ali
Shariffi (supra). The impugned order passed by the
learned trial judge is contrary to the principles of law
laid down by the Supreme Court in case of Mohamed
Hussain Gulam Ali Shariffi (supra) and thus deserves
to be set aside."
11. In the case of Sandeep Hiralal Bafna V/s. Municipal
Corporation of Greater Mumbai & Anr., in Writ Petition No.
5525/2018, dated 18.01.2019, while admitting the Writ Petition the
Hon’ble Bombay High Court has observed,
"Admittedly, in the present proceedings, the
PetitionerPlaintiff challenges the said notice calling
upon the petitioner to remove unauthorised
construction, if any. This itself shows that the main
cause in the present proceedings is between the
petitioner and the respondent Municipal Corporation.
The Municipal Corporation is competent to place on
record the entire material to justify their said notice."
12. In view of observations of the Hon’ble Bombay High Court
in Deju Somayya Salian's case cited above, the landlord need not be
impeded as a necessary party in a suit challenging a notice issued by
Municipal Corporation in a suit by tenant. These observations are after
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Chamber Summons No. 957/2018 ..7.. In L.C. Suit No. 556/2018
considering the ratio in the case of M/s. Aliji Momonji & Co. V/s. Lalji
Mavji & Ors, cited supra.
13. The applicant has come with a case that he is not the
landlord of the premises i.e. shop No.3 in building No.1/448 which is
described as suit premises or suit shop in the plaint. In view of
statement of applicant itself, the applicant need not be joined in the suit
as a party as the lis in the suit can be effectively adjudicated even in its
absence. Even if the applicant is considered as the owner of the
premises, in view of the observations of the hon'be Bombay High Court
in Deju Somayya Salian's case, the applicant is not a necessary party. In
the result, I hold that the Chamber Summons is misconceived. Hence,
following order.
ORDER
1. Chamber Summons No. 957/2018 is dismissed.
2. No order as to costs.
(A. N. MARE)
Judge,
Date : 24.10.2019 City Civil Court, Gr. Mumbai.
Dictated On : 24.10.2019
Transcribed on : 25.10.2019
HHJ Signed on : 04.11.2019
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Chamber Summons No. 957/2018 ..8.. In L.C. Suit No. 556/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.11.2019 3.49 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 24.10.2019
Order signed by P.O. on 04.11.2019
Order uploaded on 04.11.2019
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