Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO.1276 OF 2019.
IN
SUIT NO. 1642 OF 2019
(CNR NO. MHCCO10071082019)
Habib Esmail Educational Trust )
a Public Charitable and Educational Trust, )
registered under the provisions of the )
Maharashtra Public Trusts Act, 1950 bearing )
registration number B1268(GBR) )
having its registered office at Darul Habib )
29, Netaji Subhash Road, (Marine Drive) )
Mumbai400 020 and having correspondence )
address at Haji Mohamed Building, Gr.Flr,115 )
Shayda Marg, Dongri Off.Imam Husain(a.s) )
Chowk, Mumbai400 009 represented )
through its Trust Secretary, Mr.N.M.Farooqui )
and it's A.P.R.O.Ms Nikhat Panjwani )...Applicant/
Intervener
In the matter between:
Kesar Baug Trust, a Public Trust registered )
the provisions of Maharashtra Public Trust Act, )
1950 bearing registration number B381(GBR) )
having its office at Kesar Baug Hall, Ground Flr. )
Habib Esmail Educational Trust Building, )
Principal Shaikh Hasan Marg, Dongri, )
Mumbai400 009. )...Plaintiff.
Versus
The Asstt. Engineer (Bldg & Factory), )
-- 1 of 10 --
2
"B" Ward, Municipal Office, )
2nd floor, Babela Tank Road, )
Mumbai400 009. )
2. The Municipal Corporation of )
Greater Bombay, a Body )
Corporate constituted under the )
Bombay Municipal Corporation )
at, 1888, having its office at )
Mahapalika Marg, Opp: C.S.T., )
Fort, Bombay 400 001. ) ...Defendants
Appearance:
Advocate Mr.Bharat Chaudhary for applicant.
Advocate Mr.P.D.Gandhy for Plaintiff.
Advocate Smt. Rawade for Defendant/MCGM.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 20th JULY, 2019.
(C.R.No.06)
O R D E R
This is a chamber summons taken out by the
applicant/Intervenor for adding party to it as defendant no.3. The
plaintiff resisted this chamber summons by giving reply. Read the
present chamber summons, reply of the plaintiff thereon. Heard both
the learned counsels on behalf of both the sides at length. Perused
record.
-- 2 of 10 --
3
2. In short, it is the contention of the applicant/Intervenor
trust that the applicant is a public charitable and educational trust
registered under the provisions of the Maharashtra Public Trust Act
1950. The defendant is the owner of plot nos. 31, 32, 37, 38 of Nowroji
Hill Estate bearing Cadastral Surve No. 22A/1721 Mandvi Division and
Assessed by the Assessor and Collector of Municipal Corporation under
BWard Nos.3649, 3650, 3651, 3652, 3552, 3651(1) and 3652(2)
(hereinafter referred to the said 'plot' ) which is reserved for education
purpose. The defendant leased the said plot to plaintiff under a
registered lease deed. While the said plot was leased to plaintiff, one
Haidery Trust was running a School therefrom under the name and
style ' Haidery High School'. In the 1972, the said Haidery Trust went
bankrupt pursuant to which it was decided to amalgamate Haider Trust
with Habib Esmail Memorial Trust. The Habib Esmail Memorial Trust
began to operate the School from the existing structure on the said plot.
3. The applicant submits that the existing structure on the
said plot was in dilapidated condition and was in need of immediate
repairs. However, the plaintiff did not have the resources to undertake
the repairs of the said structure. The plaintiff therefore subleased the
said plot to Habib Esmail Trust vide Agreement dtd. 6th December,
1975 for reconstruction of the said structure. Under agreement dated
6th December 1975, it was agreed that plaintiff would be entitled to
utilize the ground floor and right side open space of the newly
constructed building as a hall and the Habib Esmail Memorial Trust
would be entitled to utilize the upper floors for education and medical
purposes.
-- 3 of 10 --
4
4. The applicant submits that the applicant has constructed
suit building consisting of ground plus six floors and terrace. The
applicant handed over the ground floor hall and right side open space
to the plaintiff. The applicant began to operate a school viz. New Habib
High School from upper floor of the said building imparting quality
education to over 5000 students with a staff strength of over 200
members to conduct the affairs of the applicant.
5. The applicant submits that during the vacation of May
2017, the plaintiff trespassed and encroached upon the terrace of the
said building and constructed a turf by nettling the terrace premises on
all sides using Nets, Galvanized iron (GI) poles, G.I.racks and G.I Roofs.
The plaintiff also constructed pantry, Booking office, storerooms etc.
thereby completely obstructing the terrace of the said building and
rendering the only other emergency escape route in the said building
inaccessible. The applicant immediately notified the police authorities
including the concerned officers of defendant by filing several
complaints. However, no action was taken against the plaintiff.
Mr.Javed R.Shroff, Managing Trustee of the applicant called upon the
defendant to conduct a thorough inspection of the said building and on
the same day i.e. 15th June 2019, one Mr.U.K.Bhagat, Sr.Fire Officer of
Indira Fire station of defendant inspected the building. Thereafter, as
the report of the Fire Brigade Report dtd. 18th June, 2019, the
defendant issued notice to the plaintiff to forthwith stop and remove the
unlawful, illegal encroachment, obstruction, construction, installations
and erection in the said building failing the defendant threatened to
remove the same.
6. The learned counsel of the applicant argued that the
-- 4 of 10 --
5
applicant is the proper and necessary party in the present suit. No
adjudication can be done without implead to the present applicant.
Decision of the Court in the present matter will directly affected to the
applicant trust. Therefore, by allowing this chamber summons to add to
the applicant as a defendant. The learned counsel on behalf of the
applicant has placed his reliance in the case of Municipal Council,
Hansi, District Hissar, Haryana, V/s. Mani Raj and others, reported
in AIR 2001 Supreme Court 1861. In the present appeal, the Hon'ble
Supreme Court has held that,
'' Intervention application not liable to be dismissed on
grounds of delay Particularly, when appellant was not
party to earlier award cases Intervention application
allowed Case remitted back to High Court for disposal
afresh after affording opportunity of hearing to appellant.''
The learned counsel on behalf of the applicant has further placed his
reliance in the case of M/s. Aliji Monoji & Co. Vs. Lalji Mavji and
others, reported in AIR 1997 SUPREME COURT 64. In this case, the
Hon'ble Supreme Court has held that,
"Civil P.C.(5 of 1908), O.1,R.10 proper partySuit for
perpetual injunction restraining Municipal Corporation
from demolition of demised building Landlord is proper
party."
7. The judgment placed by the learned council of the
applicant, the Hon'ble Supreme Court has considered in the case of
M/s. Aliji Monoji & Co. Vs. Lalji Mavji and others and Sandeep
Hiralal Bafna Vs. Municipal Corporation of Greater Mumbai and
another of the Hon'ble High Court of Judicature at Bombay Civil
Appellate Jurisdiction in Writ Petition No. 5525/2018 and considered
-- 5 of 10 --
6
the correct of the case of Mohamed Hussain Gulam Ali Shariffi V/s.
Municipal Corporation of Greater Bombay and others, reported in
MANU/SC/1710/2016.
8. The learned counsel on behalf of the plaintiff has argued
that the present chamber summons taken out by the
applicant/Intervenor is nothing but as abuse of process of law. The
applicant has no locus to intervene in this suit. The applicant is neither
proper nor necessary party in the present suit. The plaintiff is in
possession of the terrace where the suit premises is located. The
defendant/Corporation issued letter bearing no. ACB/SR/122/BS/1920
dated 20th June 2019, to the plaintiff and threatened to demolish the
turf and netting of the plaintiff which are on terrace of suit premises.
The present suit came to be filed by the plaintiff for declaring that the
letter issued by the defendant dtd. 20/06/2019 is invalid and illegal. It
is also prayer of the plaintiff against the defendant/BMC for permanent
restraining to the defendants/Corporation from taking any action
pursuant to the said letter dtd.20/06/2019. The main cause in the suit
is between the plaintiff and MCGM. The MCGM i.e. defendant is
competent to place on record the entire material to justify the letter
dated 20/6/2019. On these grounds, the learned counsel on behalf of
the plaintiff is requested that present chamber summons of the
applicant is liable to be dismissed.
9. The learned counsel on behalf of the plaintiff has placed his
reliance in the case of Mohamed Hussain Gulam Ali Shariffi V/s.
Municipal Corporation of Greater Bombay and others, reported in
MANU/SC/1710/2016. In appeal before the Hon'ble Supreme Court
the respondent no.2 and 3 have requested for adding to them as
-- 6 of 10 --
7
defendant nos. 2 and 3 as they have interest in ownership in respect of
the suit house. The Hon'ble Supreme Court has taken a view that
respondent nos. 2 and 3 are neither necessary nor proper parties to the
suit. Therefore, application of the respondent nos. 2 and 3 has been
dismissed.
10. The above said view of the Hon'ble Supreme Court is taken
in the case of Sandeep Hiralal Bafna Vs. Municipal Corporation of
Greater Mumbai and another of the Hon'ble High Court of Judicature
at Bombay Civil Appellate Jurisdiction in Writ Petition No. 5525/2018
and in the case of Deju Somaya Salian V/s. The Municipal
Corporation of Greater Mumbai & Ors. of the Hon'ble High Court of
Judicature at Bombay Civil Appellate Jurisdiction in Writ Petition No.
7123/2018.
11. The learned counsel on behalf of the plaintiff has placed
his further Reliance in the case of Abdul Hasan Shaikh Mansuri Vs.
Municipal Corporation of Mumbai and Ors. reported in
MANU/MH/1430/2006.
12. The learned counsel on behalf of the plaintiff has placed his
further reliance on the judgment of Hon'ble Supreme Court of India, in
Civil Appeal Nos. 55225523 of 2019 in the case of Gurmit Singh
Bhatia Appellant Vs. Kiran Kant Robinson and others Respondent.
In this judgment, the Hon'ble Supreme Court observed that,
''The plaintiffs cannot be forced to add party against whom
he does not want to fight. It he does so, in that case, it will
be at the risk of the plaintiffs.''
-- 7 of 10 --
8
13. After hearing arguments advanced on behalf of both the
parties and after scrutiny of the pleadings of the party, it appears to me
that the plaintiff Kesar Baug Trust challenged letter bearing No.
ACB/SR/122/BS/1920 dated 20th June 2019, addressed by the
defendants/Corporation to the plaintiff. The judgments cited on behalf
of he plaintiff (supra) Mohamed Hussain Gulam Ali Shariffi V/s.
Municipal Corporation of Greater Bombay and others and others
judgments relied on behalf of the plaintiff it appears that interested
party even landlord is not proper and necessary parties. Therefore, the
Hon'ble Supreme Court dismissed application of the respondent nos. 2
and 3.
14. I have gone through the judgments supra relied by the
learned counsel on behalf of the plaintiff, with due respect ratio held in
citations are not applicable with the case in my hand due to differ of
facts and circumstances. In the present case in my hand, on the
complaint of Mr. Javed Shroff dated 15/6/2019 Managing Trustee of
the applicant Trust, Shri U.K.Bhagat, Sr. Station Officer and Divisional
Fire Officer Mumbai Fire brigade made report to the
defendants/Corporation after completion of inspection of the suit
premises. In the report of Sr. Station Officer Mumbai Fire Brigade they
are recommendations in para no.7 in their report. Recommendation (a)
is. In view of the above trustees of Kesar Baug (plaintiff) and Habib
Esmail Education Trust (applicant) were instructed not to look the
entrance/exist gates and not to lock terrace doors. It shall be kept open
for all the time. The terrace shall be kept clean and unobstructed for
assembling occupants in case of emergency. (The report is filed by the
applicant at page no.193). On the basis of report of Mumbai Fire
Brigade dated 18/6/2019, the defendant Corporation issued letter
-- 8 of 10 --
9
under challenge bearing No. ACB/SR/122/BS/1920 dated 20th June
2019 to the plaintiff.
15. Considering safety of life of 5000 students with 200 staff of
the applicant trust, the applicant trust is the proper and necessary party
to the suit. The applicant trust has locus to file present chamber
summons. There is direct effect of decision of the present suit on the
applicant. Therefore, the applicant is entitled to add party as defendant
no.3. Hence, I am inclined to allow this chamber summons by passing
following order.
ORDER
1. Chamber Summons No.1276/19 is hereby allowed as prayed for.
2. The plaintiffs and its advocate are directed to carry out the
amendment by adding applicant as defendant no.3 within stipulated
period.
3. Chamber Summons No.1276/19 is disposed of accordingly.
Date : 20.07.2019. (R.V.Kokare)
I/c. Judge,
City Civil Court, Gr. Bombay.
Dictated on : 20.07.2019
Transcribed on: 20.07.2019
Signed by HHJ: 22.07.2019
-- 9 of 10 --
10
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
23.07.2019 2.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR No.06)
Date of Pronouncement of
Judgment/Order
20.07.2019
Judgment/order signed by P.O on 22.07.2019
Judgment/order uploaded on 23.07.2019
-- 10 of 10 --