Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No. 1584/2019 in
L.C. Suit No. 1348/2019.
MHCC010089292019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1584 OF 2019.
IN
L.C. SUIT NO. 1348 OF 2019.
Kamruddin Kutbuddin Penwala........................…. …... Plaintiff.
V/s.
M.C.G.M..…..……………………………………….. …... Defendant.
And
Esmail Ebrahim Dhariwala. ……..………………..... .….. Applicant.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 13th July, 2022.
APPEARANCES :
Mr. Virendra T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant.
Ms. Punita Arora, Ld. Advocate for the Applicant.
01. The applicant has taken out this Chamber Summons (for
the brevity 'Ch/s.'), for directing the plaintiff to join him defendant No.
2 in the plaint. Perused the Ch/s., his accompanying affidavit and say of
defendant No.1.
02. Considering the record, the points for determination, along-
with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether presence the applicant is
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions
involved in the suit ?………………....….. …No.
(ii). What Order ? ..............…......................... ….As per final Order.
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.2. CH/S No. 1584/2019 in
L.C. Suit No. 1348/2019.
REASONS FOR FINDINGS
AS TO POINT NO. 1 :
03. By filing this Ch/s., the applicant came with a specific case
that since 13.07.1981, he, along-with the other legal heirs of deceased
Badruddin Ebrahim Dhariwala, is the co-owner and the landlord of the
immovable properties, including this suit property, bearing C.T.S. Nos.
85, 85/18, 85/19, 85/20, 85/21 and 85/22, situated at Village Kurla,
Royal Residency, Kale Marg, Kurla (West), Mumbai -400 070. Even, the
property cards bear their names as legal heirs of deceased Badruddin.
The plaintiff is not his tenant, as regards the suit Shop No. 5. Moreover,
the defendant rightly issued the notice of dtd. 12.09.2018, calling upon
the plaintiff to show existence of the suit structure prior to 01.04.1962,
as he was creating hurdle and obstruction for constructing of drainage
and Kale Marg road widening. However, this plaintiff failed to show its
existence prior to 01.04.1962 i.e. the datum line. Moreover, he failed to
file the documents of ownership and rent receipt as a tenant of the suit
structure. Therefore, he is an illegal occupant. The defendant issued the
notice on 12.09.2018, as he along-with other structures creating hurdles
for construction of the said drainage and widening of Kale Marg Road.
Being so, he needs to be joined as defendant No. 2 in the suit to assist
this Court for adjudication of the matter. He is the landlord and owner
of the suit property and hence, he is required to be joined in the suit as
necessary party. Although, the plaintiff remained absent to file the say
on this Ch/s.. The defendant submitted for suitable Orders of this Court.
Ld. Advocate for the defendant urged that he is unnecessarily dragged
in the suit and the plaintiff had no cause of action against him.
04. Having considered the rival stands, at the outset, it is worth
to be noted that by filing this suit, the plaintiff came with a specific case
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.3. CH/S No. 1584/2019 in
L.C. Suit No. 1348/2019.
that he is the licensee of the suit shop. Initially, its owner Barkatali Haji
Nagori was carrying out his business from the suit shop under the name
of the ‘Kisan Dairy’. He is having electricity bills, etc.. The suit premises
is assessed to N.A. Order and taxes. On 12.09.2018, the defendant sent
letter, calling upon him to furnish the documents for further action. On
19.09.2018, he replied this letter, however, till date the defendant did
not consider his documents. Contrarily, on one pretext or the other, his
Officers are threatening the plaintiff to demolish this suit premises. On
04.05.2019, the Officers of the defendant namely Mr. Patil and Mr. Palve
visited at the suit premises and threatened the plaintiff. They were not
ready to listen to him. In this way, the defendant is bent upon to take
the land along-with the structure for the purpose of road widening and
drainage work, without following the due process of law. Hence, he had
to institute this suit for perpetual injunction, restraining this defendant
to proceed against the suit premises without following the due process
of law.
05. Now, in view of this restricted scope of the matter, here, it
would be worth to note that by filing this Ch/s., the applicant is posing
himself as the owner and the landlord of the suit immovable properties,
including this suit shops, bearing C.T.S. Nos. 85, 85/18, 85/19, 85/20,
85/21 and 85/22, situated at Village Kurla, He contended that the letter
dtd. 12.09.2018 was rightly issued by the defendant as the plaintiff was
obstructing construction of the drainage and Kale Marg road widening.
He is not his tenant and is in unlawful occupation of this suit premise. It
is further his say that the plaintiff failed to prove existence of this suit
premises prior to 01.04.1962 and hence, his addition in the suit as party
defendant would assist to decide the suit issues regarding the plaintiff's
such obstruction of the drainage construction and road widening work.
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.4. CH/S No. 1584/2019 in
L.C. Suit No. 1348/2019.
Needless to say that no such issue is involved in this suit. At the costs of
repetition, here in this suit, the plaintiff contended that on 12.09.2018,
the defendant issued letter, directing him to submit documents and on
19.09.2018, he replied this letter. However, till date, the defendant did
not consider his documents. Contrarily, his Officers threatened him to
demolish the suit premises. This way, the defendant is intending to take
the land, along-with the structure, for the purpose of road widening and
drainage work. Hence, he prayed for the grant of a perpetual injunction,
restraining this defendant to proceed against the suit premises, without
following the due process of law. On this backdrop, it can be arrived at
safely that the applicant may be having some issues with this plaintiff.
He is also denying his status as 'the tenant' and contended that he is an
unlawful occupant of the suit premises. However, the fact remained that
this suit is limited to the extent of determining the sanctity of letter dtd.
12.09.2018 and later, the plaintiff's entitlement for perpetual injunction,
as against the alleged threats by the defendant. Obviously, the conflicts
of '
interse' interests of this applicant and the plaintiff are not the issues
involved in this suit.
06. Concluding my discussions, I am of the opinion that taking
into account the restricted scope of this suit, presence of the applicant is
not required to effectually adjudicate upon the suit issues. He is neither
necessary nor proper party to this suit and the suit can be decided even
in his absence. If said differently, in my considered opinion, to decide
this matter, the only necessary and proper party required for the suit is
the defendant, who had issued the said letter. It is the settled principle
of law that the plaintiff being a '
dominus-litis' of the suit can't 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
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.5. CH/S No. 1584/2019 in
L.C. Suit No. 1348/2019.
added as party is the necessary party and without his presence neither
the suit can proceed and nor relief can be granted. It is only then such
person can be allowed to be party, else the suit will have to be dismissed
for non-impleadment of such necessary party. However, this is not the
position in this matter. In the circumstances, this Court is of the opinion
that presence of this applicant is absolutely not needed for the effectual
adjudication of this suit. Hence, I answered point No.1 in the negative
and in answer to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 1584/2019 stands dismissed.
(ii). Chamber Summons No. 1584/2019, is, accordingly,
disposed of.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 13.07.2022. City Civil Court, Mumbai.
Dictated on : 13.07.2022.
Transcribed on : 13.07.2022.
Signed on : 13.07.2022.
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.6. CH/S No. 1584/2019 in
L.C. Suit No. 1348/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On 14.07.2022. at 4.00 p.m. Mrs. S.R.Mejari
UPLOADED DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.) H.H.J. A.G. Santani
C.R. No.11
Date of Pronouncement of
Judgment/Order
13.07.2022.
Judgment /Order signed by P.O. on 13.07.2022.
Judgment/Order uploaded on 14.07.2022.
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