Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO. 1384 OF 2019
IN
L.C. SUIT (STAMP) NO. 6416 OF 2019
Bright Brothers Enterprises Builders )
and Developers )...Plaintiff
)
Versus )
Municipal Corporation of Greater Mumbai )
& Ors. )...Defendants
And )
Mr.Hussain Munir Shaikh )..Applicant
Appearance:
Advocate Mr.Sanjay Singh for applicant.
Advocate Mr. Devendra Singh for plaintiff.
Advocate Mr.M.H.Parashurami a/w. Mr. Sutar for Defendant /MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
(C.R.No.06)
DATE : 29th JULY, 2019.
O R D E R
This is a chamber summons taken out by the applicant for
adding party to him as defendant. The plaintiff resisted this chamber
summons by giving its reply. Read the chamber summons, Reply of the
plaintiff. Heard both the learned counsels on behalf of both the sides
at length. Perused the record.
2. In short, it is the contention of the applicant that upon
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deriving knowledge of the present suit filed by the plaintiff he has on
the advice of his advocate applied for RTI from the defendant for
providing the papers and proceedings of the present suit so as to enable
him to file the present chamber summons for impleading him as a
party defendant to the suit. He is residing at address situated at room
no. 4, 2nd Floor, Jariwala Building, Kamathipura 3rd Lane, Two Tanks,
Mumbai Central, Mumbai. Thereafter, he got the information from the
relevant source that the plaintiff had in connivance with the architect
M/s. A.P.Dharia & Associates had without receipt of the Occupation
Certificate had allowed the occupants to use the same as residence.
Hence, violate the provisions of MCGM Act.
3. The applicant has further submitted that he approached the
plaintiff and explained the plaintiff that the plaintiff must cease and
desist from allowing the occupant to reside in the suit premises. The
plaintiff had now started selling the flats which are illegally constructed
in the unauthorised and illegal structure i.e. the suit premises to several
people who are now residing in the illegally constructed flats in the suit
premises. The applicant requested to the defendants to take
appropriate action against the plaintiff for illegal and unauthorised
construction.
4. The applicant further submitted that he constantly
addressing letters to various authorities to place on record that the
plaintiff has illegally constructed the suit premises and has been posing
a threat not only to the people staying in the said suit premises but also
to adjacent structure. The applicant is the interested person in the suit
premises. He is the proper and necessary party and accordingly be
impleaded as a party defendant in the present suit. On these grounds,
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the applicant has requested that chamber summons may kindly be
allowed and he will add as defendant in the present suit. Hence, this
chamber summons.
5. In response to the chamber summons, the plaintiff has
submitted that the present chamber summons taken out by the
applicant is nothing but an abuse of process of law. The applicant has
not at all concern with the suit premises . The applicant has no locus to
intervene in the suit. The applicant has taken out chamber summons
with malafide intentions and ill motive only in order to harras and
pressurize on one pretext or other. The applicant has not come to this
Hon'ble Court with clean hands and has suppressed various martial
facts from this Hon'ble Court. Though, complaint have been filed by the
present applicant, the right to intervene as defendant in the present suit
as a complainant is neither a necessary nor a proper party. Applicant is
in no way affected by the outcome of suit. On these grounds, the
learned counsel on behalf of the plaintiff requested that the present
chamber summons is liable to be dismissed.
6. In the case of Mohamed Hussain Gulam Ali Shariffi V/s.
Municipal Corporation of Greater Bombay and Ors. reported in
MANU/SC/1710/2016. In the suit before the Hon'ble Supreme Court
the respondents no. 2 and 3 requested for adding to be as defendants
no.2 and 3 as they have interest in ownership in respect of the suit
house. The Hon'ble Supreme Court has taken the view that respondents
no.2 and 3 are neither necessary and nor proper parties to the suit.
Therefore application of the respondents no.2 and 3 has been
dismissed.
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7. The above same view of the Hon'ble Supreme Court is
taken in the case of Shriman Kishor son of Chandrakant Urane V/s.
City of Nagpur Corporation and others in the Writ Petition No. 937
of 2017 and Writ Petition No. 938 of 2017 of the Hon'ble High Court
Of Judicature At Bombay, Nagpur Bench.
8. The same view is also taken by the Hon'ble High Court Of
Judicature At Bombay in the case of Deju Somaya Salian V/s. The
Municipal Corporation of Gr. Mumbai & Ors. holding that the
intervener is one of the coowner of the suit property, is also not proper
and necessary party.
9. On perusal of the present suit, it appears to me that the
plaintiff has filed the present suit against defendant no.1 Municipal
Corporation of Greater Mumbai and its officers i.e. defendants no. 2, 3
and 4 wherein the challenge Notices dated 09.08.2016, 13.04.2017,
01.04.2019 and 12.06.2019 issued by the defendants to the plaintiff. In
the notices impugned in the suit, the main grievance of the defendant
no.1 Municipal Corporation is that the plaintiff has made some
unauthorized construction in the suit premises situated at C.S. No.774
of Byculla Division Building No. 1820, bearing Cess No. E1400 and
E.1401, situated at 5th Kamathipura , Mumbai.
10. On perusal of this chamber summons, it appears to me that
the applicant is the complainant who had filed the complaint against
the plaintiff about unauthorised and illegal construction in respect of
the suit property to the defendants. The applicant who is mere
complainant has not accrued right to as a party in the suit. The
applicant is neither proper nor necessary party in the present suit. To
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decide the dispute in between the plaintiff and the defendants, I am of
the opinion that the only necessary and proper party to the suit is only
the defendant no.1 Municipal Corporation of greater Mumbai who has
issued said notices to the plaintiff. Hence, this chamber summons is
liable to be dismissed. I have proceed to pass following order.
ORDER
Chamber Summons No.1384 of 2019 is hereby dismissed.
Date :29/07/2019. (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Direct dictated on : 29/07/2019.
Signed by HHJ : 30/07/2019.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
31.07.2019 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR No.06)
Date of Pronouncement of
Judgment/Order
29.07.2019
Judgment/order signed by P.O on 30.07.2019
Judgment/order uploaded on 31.07.2019
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