Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch/Sum. 975/18 in L.C. Suit No.938/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CHAMBER SUMMONS NO.975 OF 2018
IN
L.C. SUIT NO.939 OF 2018
M/s Indian Steel Corporation
through Partner Jitendra Balvir Singh,
age 63 years, an adult, Occ. Business
Indian Inhabitant of Mumbai, having
address at ISC Compound, Janta Market,
Subhash Road, L.B.S. Marg,
Bhandup (West), Mumbai – 400 078. Plaintiff.
V/s.
The Municipal Corporation of Greater Mumbai,
'S' Ward Designated Officer,
Asst. Engineer (B & F)I, L.B.S. Road,
Near Mangatram Petrol Pump,
Bhandup (West), Mumbai – 400 078. Defendants.
And
M/s Horizon Enterprise
having its address at Srishti House,
1st Floor, Opp. Vikas Centre,
N.S.B. Road, Mulund (West),
Mumbai – 40 0080. Applicant.
Advocate Mr. Thorat h/f Advocate Shailesh Shukla for plaintiff.
Advocate Ms. Tondwalkar for Defts./BMC.
Advocate Hardik Desai h/f Advocate P.D. Gandhy for applicant.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 04th JULY, 2018
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:2: Ch/Sum. 975/18 in L.C. Suit No.938/18
ORAL ORDER
The applicant filed present chamber summons for
impleading them as a party. Applicant submits that the plaintiff has
filed the suit challenging the notice under Section 351 of MMC Act
dated 22.02.2018 and Order dated 16.03.2018. Applicant submits that
applicant is the coowner of the suit property. Applicant is in possession
of property card, which he enclosed with the chamber summons
reflecting the name of applicant. There are inter se disputes between
the plaintiff and the applicant pending before Hon'ble High Court,
Original side. The permission for carrying on studio activities of suit
property, was cancelled since long. There was fire incident in nearby
property, where similar studio activity was being carried out and there
was damage to property and also some casualties. Applicant will also be
in a position to aid and assist the Court in arriving at a just an judicious
decision on various facts and documents. In such circumstances, the
applicant is necessary and proper party under Order I Rule 10 (2) of
CPC. Hence, prayed to allow the chamber summons.
2. The Plaintiffs filed their reply, thereby strongly objected
present chamber summons on the ground that the chamber summons is
based on false allegations, not on any documentary evidence. Applicant
is no concerned with suit premises and the premises of applicant is far
away from the suit premises. Applicant is not the coowner of suit
property. Suit plot of land is situated on different CTS numbers and the
applicant has no concern with the suit premises. Applicant has not
showed any document regarding he is the partner of applicant's
enterprises. Merely, on the basis of revenue record and name in
property card do not prove the applicant is owner of the suit premises.
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:3: Ch/Sum. 975/18 in L.C. Suit No.938/18
The license is issued by defendant in favour of the plaintiff for running
the business in the said compound. The applicant is not the coowner of
suit property. The applicant already filed suit before Hon'ble High Court
for partition. In both the suit in Hon'ble Bombay High Court refused the
adinterim relief to the applicant. Plaintiff challenged the cancellation of
licenses before the Court, which is illegally cancelled by corporation
after the illegal complaint by the applicant. Applicant already initiated
Court proceeding therefore, no concerned in the present matter.
Applicant use the machinery of defendant to harass the plaintiff. The
applicant is not the necessary and proper party to decide the real
controversy in the present case. Hence, prayed to reject the application.
3. Heard advocate Hardik Desai for applicant and Adv. Rahul
Thorat for plaintiff.
After perusal of plaint on record it is observed that the
plaintiff filed present suit, thereby challenged notice dated 22.02.2018
issued by the BMC and Order dated 16.03.2018. The said notice is
issued in the name of plaintiff. The plaintiff in their plaint stated that
suit premises is situated on plot bearing CTS No. 400, which is the
property of HUF. Perused the suit tax assessment of the suit structure
which is dated 31.03.1961.
4. The applicant enclosed the copy of property card alongwith
the copy of chamber summons, in which the entry dated 11.08.2011
showed in the name of applicant as per the Registered Deed between
one Tapendrasingh Narendrasingh and Tapendrasingh Narendrasingh
at one part and applicant at another part. After perusal of property card
it seems that on 19.04.1971 the name of father of plaintiff and the
father of Tapendrasingh and Dipendrasingh is entered in the property
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:4: Ch/Sum. 975/18 in L.C. Suit No.938/18
card. It is regarding the structure of CTS No. 400 admeasuring 6299.2
sq. meter. From the documents enclosed with the plaint and chamber
summons it is revealed that the business of the plaintiff and defendant,
though it is carried out in same CTS number but both are the different
structure. Applicant's name is entered in the property card CTS 400
admeasuring area 6299.20 in 11.08.2011. From the record it is also
observed that the applicant filed suit for partition before Hon'ble High
Court, in which Hon'ble High Court has refused adinterim to the
applicants.
5. As per the Order I, Rule 10 of the CPC, the person to be
joined as a party, must be one, whose presence is necessary. Without
whom, no order can be made effectively. The proper party is one, in
whose absence affective order can be made but whose presence is
necessary for complete and final decision on the question involved in
the proceeding.
6. Applicant relied on citation of Apex Court reported in
1996 SCALE (5) 485 in the case of M/s Aliji Momnji & Co., V/s Lalji
Mavji & Ors., in which it has held that –
In the event of suit structure being demolished,
right title interest of the landlord would directly be
affected, the landlord would be proper party, though
no relief has been sought against the landlord.
The landlord of the owner of the premises
would be the better person to throw the adequate life
of the controversy. The landlord are the proper party
though the relief is sought only against the
corporation for perpetual injunction restraining the
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:5: Ch/Sum. 975/18 in L.C. Suit No.938/18
corporation from demolishing suit structure. The
landlord would be entitled to place all the fact before
the Trial Court and therefore, the presence of the
landlord before the Trial Court would be necessary for
adjudication of the issues completely.
7. Per contra advocate for the plaintiff relied on the citation 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.
8. From the record it is admitted fact that the name of the
applicant is entered in Property Card on 11.08.2011. In the present
case, the plaintiff has challenged the notice issued by the BMC and
sought the relief against the defendant/BMC. To prove the
authorization of structure, which is as per the First Tax Assessment of
the year 1961. The applicant is not the necessary and proper party. As
the applicant is the subsequent purchaser in the year 2011 therefore,
they are not able to assist the Court whatever situation prior to 2011.
9. The partition suits filed by the applicants are pending
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:6: Ch/Sum. 975/18 in L.C. Suit No.938/18
before the Hon'ble High Court. The applicants nowhere mentioned that
how they are related to the suit structure of the plaintiff. Except
property card they have not filed any document on record to show that
they are the coowner of the suit structure. Only on their complaint
notice is issued to the plaintiff, it doesn't mean that they are the
necessary party to the present suit. Hence, I pass following order :
ORDER
Ch/Sum No. 975/18 is rejected and accordingly disposed
of.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 04/07/2018.
Dictated on : 04/07/2018
Transcribed on : 06/07/2018
Signed on : 09/07/2018
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:7: Ch/Sum. 975/18 in L.C. Suit No.938/18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09/07/2018 At 1.27 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
04/07/2018
Judgment/Order signed by P.O. on 09/07/2018
Judgment/Order uploaded on 09/07/2018
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