Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010097972019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1740 OF 2019
IN
LONG CAUSE SUIT NO.2531 OF 2019
Mr. Rashid Ismail Khan ….Applicant
In the Matter Between
Adil Qamar Khan ...Plaintiff.
V/s.
The Municipal Corporation of
Greater Mumbai … Defendants
CORAM : HIS HONOUR JUDGE
SHRI. RAJESH K. KHOMANE
CITY CIVIL COURT
GR.BOMBAY ( C.R.NO.06)
DATE : 01/03/2023
Adv. Mr. Prajot H. Jaggi for the Applicant.
Adv.Mr. B. P. Shukla for the plaintiff.
Adv.Ms. Meena Dhuri for defendant/BMC.
ORAL ORDER
1. This Chamber summons has been taken out by the
applicant Rashid Ismail Khan under Order I Rule 10 of the Code of Civil
Procedure for impleading him as party defendant in this suit.
2. In brief, it is contended in the chamber summons that he is
landlord of the building known as ' Amirani Mansion ' situated at 263E,
Miya Mohammed Chotani Road, CTS No. 1A/1223, Mahim Division,
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Mahim (W), Mumbai400016. ,Room No. 21 situated on 4 th floor of the
said building is subject matter of the suit. ( for the sake of convenience
hereinafter it is referred to as 'suit premises'). The suit premises
comprises of two rooms. Originally suit premises let out to the mother
of the plaintiff on monthly rent of Rs.50/alongwith taxes. After the
death of plaintiff's mother, the plaintiff became tenant of the suit
premises. But the plaintiff without written consent of the applicant as
well as without permission of the competent authority have carried out
additions and alterations in the suit premises. He also encroached upon
the terrace of the said building. Therefore, defendant/BMC issued
notice under section 351 of the Mumbai Municipal Corporation Act (in
short, ' MMC Act') directing him to remove unauthorized construction.
According to the applicant, he is landlord of the suit premises, therefore
his interest and right would be affected if impugned notice is enforced.
So he is praying to implead him as party defendant in this suit.
3. The plaintiff has filed say to the chamber summons and
resisted the same. According to the plaintiff, the applicant is neither
necessary nor proper party. In this suit, impugned notice is challenged
which is issued by the defendant/BMC to him. The applicant has no
concerned with the impugned notice, therefore, according to the
plaintiff, applicant is neither necessary nor proper party. Hence, he
prays for dismissal of the chamber summons.
4. I have gone through the chamber summons and reply.
Heard both sides advocates. Advocate Mr. Prajot H. Jaggi for the
applicant submits that the applicant is landlord of the suit premises
therefore, he has direct and substantial interest in the suit premises. By
the impugned notice the plaintiff is directed to remove unauthorised
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construction carried in the suit premises. If the notice is implemented
his interest would be certainly affected. Therefore, according to the
Adv. Mr. Prajot H. Jaggi, applicant is necessary and proper party. In his
support he has relied on the following citations:
i) Kantaben w/o. Chandulal Kalidas Vs. Parsi Dairy Farms and
Ors.(1985 (2) Bom CR 353),
ii) M/s.Aliji Momonji & co. vs. Lalji Mavji & Ors (JT 1996 (7)53),
iii) Adam A. Sorathia & Anr. Vs. Municipal Corporation of Greater
Mumbai 2002 (4) Bom CR 419)
Wherein it is held that landlord is necessary and proper party in
suit where demolition notice is challenged.
5. On the other hand, Adv. Mr. B. P. Shukla for the plaintiff argues
that the landlord is neither nor necessary party as dispute revolves
around the impugned notice issued by the defendant/BMC to the
plaintiff. relied on following citations:
i) Mohamed Hussain Gualm Ali Shariffi Vs. Municipal Corporation of
Greater Bombay & Ors. ( 2017 (6) ALL MR 420 (S.C.)
ii) Deju Somaya Salian Vs. The Municipal Corporation of Gr. Mumbai
& Ors. ( Writ Petition No. 7123 of 2018 decided on 24.09.2018)
6. Admittedly, the plaintiff has challenged notice under
section 351 of the MMC Act issued by the defendant/BMC. It is alleged
by the defendant/BMC that the plaintiff has unauthorizedly carried out
construction in the suit premises. So the defendant/BMC issued
impugned notice directing the plaintiff to remove or demolish such
unauthorized construction. The plaintiff has not denied that he is tenant
of the suit premises. However, it is his contention that dispute revolved
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in the suit around impugned notice, therefore, even though the
applicant is landlord but defendant/BMC is only necessary party in this
suit as defendant/BMC has issued impugned notice. However, the
applicant is landlord of the suit premises and he has direct and
substantial interest in the suit premises. In the event of its demolition,
his rights materially be affected. His right, title and interest in the suit
premises would be jeopardy to the tenant. Therefore, he is necessary
and proper party. His presence is necessary for complete and effectual
adjudication of the dispute and without his presence no effective and
complete adjudication of the dispute could be made. As such, the
applicant is necessary and proper party as he is landlord of the suit
premises. He has substantial and direct interest in the suit premises.
Therefore, if action of demolition of notice structure initiated by the
defendant/BMC its challenged rights of landlord of building will directly
or materially affected therefore his presence is necessary. Hence,
chamber summons deserves to be allowed. With this, I pass following
order.
ORDER
1. Chamber Summons No.1740/2019 is allowed in terms of
prayer clause (a).
2. The plaintiff is directed to implead applicant as party defendant
in the suit within 14 days from the date of this order.
3. Chamber Summons No.1740/2019 is disposed off.
(Rajesh K. Khomane)
Date 01.03.2023 Adhoc Judge,City Civil Court,
Gr.Bombay.
Dictated on : 01.03.2023
Typed on : 01.03.2023
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/03/2023 02.30 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. K. Khomane (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
01/03/2023
JUDGMENT/ORDER signed by
P.O.on
01/03/2023
JUDGMENT/ORDER uploaded on 02/03/2023
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