Final Order 1

Order Details: Chamber summons
Pdf Text: .1. CH/S No. 1785/2019 in
L.C. Suit No. 1650/2018.
MHCC010101662019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1785 OF 2019.
IN
L.C. SUIT NO. 1650 OF 2018.
Nanji Devji Shah.…......................………………… …... Plaintiff.
V/s.
M.C.G.M.…..……………………………………….. …... Defendant.
And
Sai Leela Apartments CHS. Ltd…………………….. …… Applicant.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 1st April, 2022.
APPEARANCES :
Mr. Mukesh Dubey, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant.
Mr. Mahamuni, Ld. Advocate for the Applicant.
01. The applicant - Sai Leela Apartments Co-op. HSG. Society
Ltd. through its authorized Officer- Krishna N. Shetty, the Chairman and
authorized signatory, filed this Chamber Summons (for brevity 'Ch/s.'),
for addition as party defendant in the present suit. Perused the Ch/s.,
the accompanying affidavit of Mr. Shetty, and say filed by the plaintiff.
Heard both the sides.
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 Society
is necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions
involved in the suit ?………………....….. …No.
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.2. CH/S No. 1785/2019 in
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(ii). What Order ? ..............…....................... ….As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO. 1
03. By filing this Chamber Summons, the applicant came with a
specific case that the applicant Society is owner of the entire plot of the
land, where the suit premises is situated. The Approved plan of the said
building is annexed to the Ch/s., wherein the 'yellow' colored portion is
place legal construction of 70 (B) of the suit premises is existing and the
illegal structure, carried by the plaintiff, is shown in the 'pink' color. The
applicant is owner of the entire plot as per the Consent Terms, signed in
S.C. Suit No. 2625 of 2003 and the plaintiff is also a signatory to it. On
many occasions, this applicant complained about illegal structure of the
plaintiff, for which the suit notice is issued. The said illegal structure is
not having electricity connection. This was built overnight when nobody
was there. This entire action has been taken on the complaints of this
applicant and therefore, it is proper party to this suit. Initially, by filing
Ch/s. No.1652/2018, the applicant prayed for his addition as a party to
the suit. However, the same stood dismissed, holding that there was no
authorization in favour of signatory of the said Ch/s. In support of this
Ch/s. the applicant filed the copy Letter Head of the applicant, bearing
the reference of resolution, passed in favour of Mr. Shetty authorizing to
proceed against illegal construction /encroachment of the plaintiff, copy
of Approved plan, Consent terms, Order on Ch/s. No. 1652/2018.
04. The plaintiff objected the Ch/s. in view of his detailed say
and contended that the applicant is trying to settle the private dispute
by using machinery of the defendant. Earlier also, the above dismissed.
Further, in view of letter dtd. 18.02.2005, issued by Mr. Shetty, i.e. the
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.3. CH/S No. 1785/2019 in
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present Chairman of the applicant, he informed that the suit premises is
an independent structure. The said letter is annexed at Exhibit A.
Moreover, the suit premises is in existence prior to the year of 1962 and
it is referred as 'Shed' in the Assessment records. That apart, the said
Consent Terms are not in respect of the suit premises. As such, the
applicant's presence is not required for this suit. To support his reply, the
plaintiff filed copy of the letter dtd. 18.02.2005 at Exhibit A. He also
relied on the case Mohammed Hussain Gulam Ali Shariffi Vrs. M.C.G.M.
And the Others, Civil Appeal No. 2016 (Arising out of SLP(C)No. 35321
of 2016, dtd. 09.12.2016
05. 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
that the defendant, without following the due process of law, issued the
notice dtd. 28.04.2018, vide Section 354-A of the M.M.C. Act, which he
received on 02.05.2018. The said notice is issued against the principles
of law. It is also vague and issued without application of mind. There is
no unauthorized construction of Shed with G.I. Sheets, as alleged by the
defendant. Although, he replied the notice and filed various documents,
the defendant is bent upon enforce this notice. He has apprehensions of
demolition of the suit premises, which is located in 'Slum' area. As such,
this notice needs to be declared as null and void. In the circumstances,
he had to file this suit for reliefs of declaration and perpetual injunction.
Now, in view of this restricted scope of the suit, here, it would be worth
to note that by filing this Ch/s., the applicant is posing himself as owner
of the entire land, including the part where the suit premises is situated.
He is trying to justify his addition in the suit on the grounds that mainly,
on his complaints, the defendant proceeded against the suit premises.
Be that as it may, the fact remains that this suit is filed for limited relief
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.4. CH/S No. 1785/2019 in
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of declaration against the said notice and consequential relief for grant
of injunction, restraining this defendant to act upon the same. Here, it
would not be out of place to refer letter dtd. 18.02.2005 relied by this
plaintiff as per Exhibit A. It seems that this letter was issued by both the
plaintiff and Mr. Shetty to the defendant, informing that Shop Nos. 70 B
and 70 C are occupied by them and the concerned Developer did not
enter into any agreements with them. On this background, it can safely
be arrived at that now, applicant may be having some issues with this
plaintiff. However, the fact remains that this suit is limited to the extent
of the alleged construction by the plaintiff and sanctity to the suit notice
issued by the defendant. Obviously, the conflicts of 'interse interests' of
the applicant and the plaintiff are not the issues involved in this suit.
Here, it is pertinent to note that to substantiate 'authority' of Mr. Shetty,
this time, the applicant placed copy of Letter dtd. 20.06.2018, bearing
reference of resolution, duly authorizing him to proceed against illegal
constructions of the plaintiff. However, again, this Letter is silent about
details of any such Meeting, held by the applicant in this reference. Nor,
even copy of the Minutes is filed on the record, to fortify passing of this
resolution to that effect.
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 MCGM, who had issued the suit notice. I am in respectful
agreement with the ratio laid in the case of Mohammed Hussain Gulam
Ali Shariffi, Cited supra. The same is squarely applicable to this case. It
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.5. CH/S No. 1785/2019 in
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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 added as party is a necessary party and without his
presence neither the suit can proceed and nor the relief can be granted.
It is only then such person can be allowed to become 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, I
am of the view that presence of this applicant is absolutely not required
for 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. 1785 of 2019 stands dismissed.
(ii) Chamber Summons No. 1785 of 2019, accordingly, stands
disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 01.04.2022. City Civil Court, Mumbai.
Dictated on : 01.04.2022.
Transcribed on : 04.04.2022.
Signed on : 04.04.2022.
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.6. CH/S No. 1785/2019 in
L.C. Suit No. 1650/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On 04.04.2022 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
01.04.2022.
Judgment /Order signed by P.O. on 04.04.2022
Judgment/Order uploaded on 04.04.2022
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