Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons no.959 of 2018
In
L.C.Suit No1509 of 2018
MHCC010070862018
Nanabhai Bhattabhai Makwana ..Plaintiff
V/s
Municipal Corporation of Gr. Bombay ..Defendants
& anr.
And
M/s Reshma Constructions,
a Proprietorship concern of
M/s Reshma A. Rizvi
Adult, Occupation: Business,
and having office at Rizvi House,
1st floor, Hill Road, Bandra (West)
Mumbai400 050 ..Applicant/proposed defendant
Advocate Mahesh Mishra for applicant
Advocate Madhuri Shinde for plaintiff
Advocate G.O.Giri for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 8th April 2019
(Court Room No.06)
O R D E R
1 Applicant Akhtar Rizvi has filed this chamber summons
under order 1 rule 10(2) of Code of Civil Procedure, 1908 to implead
him as a defendant in the present suit.
2 According to applicant, plaintiff has filed the present suit
and thereby challenged the notice and order in respect of the
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unauthorized construction and shed in the property known as
'Daginawala Mansion, bearing TPS III, F.P. No. 546, C.S. No 1/1223 &
2/1223 situated at Opp Mahim Railway Station, Mahim (West)
Mumbai 400 016. Applicant is the owner of the above plots (including
suit premises). Applicant has purchased the property by Registered
Consent Decree dated 9th February, 1983 from the erstwhile owner,
Mr. Mohd. Husein Kurban Husein Daginawalla and Ors. The name of
the applicant is entered in the Property Register Card. Plaintiff is illegal
occupant of an unauthorized shed constructed in the Applicant's
property. Municipal Corporation initiated action against plaintiff U/s
351 of MMC Act.
3 Applicant further stated that if any order in this suit is
passed that will prejudice the rights of the applicant. Hence, applicant
is necessary and proper party and accordingly prayed to allow the
chamber summons.
4 Plaintiff filed his affidavit in reply. Plaintiff denied that
applicant is necessary and proper party of the suit.. According to
plaintiff the suit premises is in existence since 1949. The earlier owner
allowed the plaintiff to reside in the suit premises and appointed to the
plaintiff as a sweeper of the chawl. Applicant has no right and interest
in the suit premises. The said property was only sought to be
transferred by affidavit dated 7/7/1992 in the name of Reshma
Construction. However, it is difficult to hold that the property was in
fact and in law got transferred in the name of Reshma construction.
According to plaintiff, Reshma Construction has though BMC Property
card by virtue of affidavit dated 7/7/1992 however, the said entry is
for fiscal purpose only. Applicant has no instrument of transfer of
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property. Plaintiff has challenged the notice U/s 351 of MMC Act and
order passed there on. Plaintiff has sought relief against the defendant
Municipal corporation. Hence, applicant is neither necessary nor proper
party to the suit. Accordingly prayed to dismiss the chamber summons.
5 Mr. Ravi Thankaian advocate for applicant has submitted
that applicant is the owner/landlord of the suit premises. Applicant has
acquired premises from earlier owner Mr. Mohd. Husein Kurban Husein
Daginawalla and Ors... The name of applicant is also recorded in the
Municipal Corporation therefore if any order is passed in this suit that
will affect the right and interest of the applicant. Therefore, applicant is
necessary and proper party to the suit. Hence , he prayed to make
chamber summons absolute.
6 Ms Madhuri Shinde advocate for plaintiff has submitted
that plaintiff has challenged the notice and order issued by
defendant/MCGM. Plaintiff has sought relief of declaration and
injunction in the present suit. The dispute is between plaintiff and
Municipal corporation. Thus, applicant is neither necessary nor proper
party to the suit. She further submitted that the suit premises is in
existence since 1949. Earlier owner appointed the plaintiff as a sweeper
of chawl and allotted the suit premises. Plaintiff has documents to show
that the suit premises is in existence since long. She further submitted
that the name of applicant is entered in the Municipal Corporation
record merely on the basis of affidavit therefore applicant has no any
deed of transfer. Hence, she prayed to dismiss the chamber summons.
In suport of her contention she relied on Mohamed Hussain Gulam
Ali Shariffi V/s Municipal Corporation of Greater Bombay and Ors
2017 (6) ALL MR 420(SC)
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7 Plaintiff has filed the present suit against the Municipal
Corporation for Gr. Mumbai and its executive engineer, G North Ward.
Plaintiff has pleaded that plaintiff is in possession of the suit premises
since long. However, defendant corporation issued notice to plaintiff
U/s 351 of the MMC Act. It is alleged that the said notice is illegal and
bad in law. Thereafter, the defendant no. 2 had passed order. Thus, in
this suit plaintiff has challenged the notice and order issued by
defendant Municipal Corporation . In the notice it is alleged that
unauthorized construction of room with brick mesonry wall and
A.C.Sheet roof. From the documents produced by applicant it appears
that applicant is the owner /landlord of the suit premises. Therefore,
the question is whether applicant is necessary and proper party to the
present suit.
8 A necessary party is one in whose absence an effective
decree cannot be passed. A proper party is one whose presence is
necessary to determine the controversy between the parties.
9 Here in the present suit plaintiff has not sought any relief
against the landlord/owner. It is true that plaintiff is a dominus litus of
the suit. However, under order 1 rule 10(2) of C.P.C. Court has power
to add any person as party to the suit if the said person is necessary and
proper party to the suit. However, considering the nature of dispute , I
find that applicant is neither necessary nor proper party to the suit.
10 In Mohamed Hussain Gulam Ali Shariffi V/s Municipal
Corporation of Greater Bombay and Ors 2017 (6) ALL MR 420
Hon'ble Supreme Court held in para no. 13,14 & 15 that:
13 In our considered opinion, having regard to the nature of
the controversy, which is the subject matter of the suit,
respondent Nos 2 & 3 are neither necessary nor proper parties.
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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 .
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 & 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.
11 Reverting to the factual score of the present case, I find
that the ratio laid down in the above rulings is squarely applicable to
the case in hand. Hence following order:
ORDER
1 Chamber Summons no. 959 of 2018 is dismissed.
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2 Ch/s disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 8/04/2019
Typed on : 9/04/2019
Signed by HHJ. :9/04/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
10/04/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
8/04/2019
JUDGEMENT/ORDER signed by
P.O. on
9/4/2019
JUDGEMENT/ORDER uploaded
on
10/4/2019
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