Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Chamber summons 1016 of 2018
In
L.C.Suit No.611 of 2018
Mr. Kamlesh Kishormal Jain and ors ..Plaintiffs
V/s
The Municipal Corporation of
Greater Mumbai and anr ..Defendant
And
Nikki Apartment Coop Hsg society Ltd. ..Proposed Defendant
Ld Adv A.J.Bhor for plaintiff.
Adv. Kumawat for defendant/MMC
Adv. P.G.Parkar for applicant
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 8th January 2019
(Court Room No.06)
O R D E R
1- Applicant Nikki Apartment Coop Hsg Society Ltd has
taken out this chamber summons under order 1 rule 10(2) of Code of
Civil Procedure to implead it as a defendant in the suit.
2 Facts leading to the chamber summons are as under:
Applicant is the cooperative housing society. The flat of
the plaintiff is situated in the building in the said cooperative housing
society. Plaintiffs have unauthorizedly constructed door and windows
on the terrace flat beyond the sanctioned plan. Plaintiffs have acquired
said flat recently and they are not members of the society. Applicants
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society had lodged complaint to Municipal Corporation in respect of the
unauthorized construction of the plaintiff. The Municipal Corporation
initiated action against the plaintiff U/s 351 of MMC Act. Plaintiffs
challenged the said notice and order by this suit and made allegations
against society and its office bearers. Therefore, the applicant is
necessary party to the present suit.
3 Applicant further contended that earlier plaintiff had filed
L.C.Suit No 2637/2017 against the Municipal Corporation. In that suit
applicant had filed chamber summons however the said suit is disposed
of by the Court. If applicant is made party to the suit no prejudice will
be caused to the plaintiff. Hence, prayed to allow the chamber
summons.
4 Plaintiff filed his affidavit in reply. According to plaintiff,
plaintiff has challenged the notice issued by designated officer of
defendant Municipal corporation issued under section 351 of MMC Act
and order passed thereon. Applicant has no locus standi to join in the
suit as a party defendant. Applicant is not necessary party. Plaintiffs
denied that they have constructed unauthorized door and window as
alleged.. There is a dispute between plaintiff and applicant and same is
pending before the Registrar Cooperative Society, Mumbai. Thus, the
applicant is neither necessary nor proper party to the suit. Defendant/
Municipal Corporation is able to defend the suit. Hence prayed to
dismiss the chamber summons.
5 From the rival contention of both the parties following
points arise for my consideration to which I record my findings against
them for the reasons given below:
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Points Findings
1 Whether applicant is necessary
party to the suit?
In the negative
2 Whether applicant is proper
party to the suit?
In the negative
3What order? As per final order.
REASONS
6 I have heard Shri P.G.Parkar advocate for applicant and
Shri A.J.Bhor advocate for plaintiff.
7 Shri P.G.Parkar advocate for applicant has submitted that
applicant is the cooperative society wherein the suit premises is
situated. He admitted that there is dispute between applicant and
plaintiff. Earlier plaintiff had filed the suit bearing no.2637/2017. In
that suit applicant had filed chamber summons but this Court has
disposed of the suit by giving direction to the Municipal Corporation.
He further submitted that applicant has interest in the premises.
Applicant is necessary party to the suit. Hence applicant be added in
the suit as a defendant. In support of his contention he relied on:
1 Adam A. Sorathia and Ors V/s Municipal Corporation of
Greater Bombay an Ors C.R.A 243 of 1999.
2 Digambar S/o Gangaram Halde (Patil) V/s Sayyad Khaja S/o
Sayyad Mohiyoddin 2018(5) Mh.L.J
8 Shri A.J.Bhor advocate for plaintiff has submitted that the
proceeding is U/s 351 of the MMC Act. Plaintiff has challenged the
notice and order of defendant Municipal Corporation. Plaintiffs have
purchased the flat and they are owners of the flat. Merely the flat is
situated in the building and applicant is the cooperative society does
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not entitle the applicant to implead as a defendant in the suit. In fact
the defendant corporation has taken action on the basis of the
complaint of the applicant. Therefore, applicant is not necessary party
and prayed to dismiss the chamber summons.
9 Plaintiff by this suit have challenged the notice U/s 351 of
the MMC Act and order passed thereon. Earlier plaintiff had
challenged the notice in suit no.2637 of 2017. My Ld. Predecessor
directed the defendant corporation to consider the reply and pass order
a fresh. In view of this direction suit and notice of motion was disposed
of. Thereafter, the defendant corporation passed fresh order and
plaintiff has challenged the said order in this suit.
10 Applicant has come with a case that applicant is the Co
operative Society wherein the suit premises is situated and therefore
the applicant is the necessary and proper party. Except this statement
applicant has not shown that how the applicant is the necessary and
proper party to the present suit.
11 Plaintiff is the dominus litus of the suit. However, the
court has discretion to add or delete any person in the suit under order
1 rule 10(2) of Civil Procedure Code. For addition of the party, such
party must be either necessary or proper party. A necessary party is one
in whose absence an effective decree cannot be passed and proper
party is one whose presence is necessary to determine the controversy
between the parties.
12 Here in the present suit, the action is initiated on the
complaint of the applicant. The dispute is pending between the parties
before the Registrar Cooperative Society, Mumbai. The present action
is U/s 351 of the MMC Act. Therefore, in this scenario I find that
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applicant is neither necessary nor proper party to the suit. Cause in the
present suit can be effectively adjudicated in absence of the applicant.
In Adam A. Sorathia and Ors V/s Municipal Corporation of
Greater Bombay an Ors C.R.A 243 of 1999 Hon'ble High Court in
para no. 16 held that :
16 Reverting back to the facts of the present case on hand, it
is clear that the notice issued by the Corporation dated 2nd
January,1995 refers to the unauthorized extension made
by respondent no.2 which is annexed to the dismissed
premises. It has virtually become a part of the demised
premises. The landlords have direct and substantial
interest in the demised premises, the demolition of which,
is sought by notice issued under section 351 by the
Bombay Municipal Corporation. In the event of its
demolition their rights are bound to be affected.
Further in Digambar S/o Gangaram Halde (Patil) V/s
Sayyad Khaja S/o Sayyad Mohiyoddin 2018(5) Mh.L.J
Hon'ble High Court in para no.9 held that:
9 Normally, the party is not added against the wishes of
Plaintiff, still the jurisdiction of the Court is not barred to
invoke powers under Order I, Rule 10(2) of the Code of
Civil Procedure either on its own motion or on the
application made by any person to pass order to join such
person as a plaintiff or defendant as the case may be,
whose presence before the Court, the Court may found
necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
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involved in the suit. Thus, the basic purpose of exercise of
powers under Order I Rule 10(2) of the Code of Civil
Procedure is to avoid multiplicity of proceeding and to
effectively decide the dispute between the parties. The
person to be added as defendant may not be necessary
party, but for adjudication of suit, if the Court deems it fit
that for proper adjudication, the person needs to be join as
a party defendant to the suit then the Court can exercise
such powers under Order I, Rule 10(2) of the Code of Civil
Procedure.
13 Reverting to the factual score of the present suit applicant
is not the landlord of the suit premises. The dispute is between
plaintiffs and the Municipal Corporation in respect of the unauthorized
structure. Therefore, I answer the points in the negative and pass the
following order:
ORDER
1 Chamber Summons no. 1016 of 2018 is hereby
dismissed.
2 No order as to costs.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 8/01/2019
Typed on :10/1/2019
Signed by HHJ. : 11/1/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
11/1/2019 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
8/01/2019
JUDGEMENT/ORDER signed by
P.O. on
11/1/2019
JUDGEMENT/ORDER uploaded
on
11/1/2019
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1 Plaintiff replied the said letter through his advocate dated
20/2/1998. The Court receiver by the letter dated 24/06/1998
addressed to the plaintiff alleging that the plaintiff illegally occupying
the unauthorized structure and unauthorizely carried out the
construction. The Court receiver called upon the plaintiff to hand over
the possession of the said portion and demolished the unauthorized
structure. Plaintiff gave reply dated 15/07/98 to the Court receiver and
denied the allegations. Thereafter, at the istance of Raj
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