Final Order 1

Order Details: Chamber summons
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 1842 OF 2019
(CNR No. MHCC010104182019)
IN
LONG CAUSE SUIT NO.1362 OF 2019
Rupali R. Dhanani ... Plaintiff
V/s.
1. Designated Officer D.O.II
and Anr. ...Defendants
And
Shri. Sunil Murlidhar Bhagat …..Applicant
CORAM : HIS HONOUR JUDGE
SHRI. RAJESH K. KHOMANE
CITY CIVIL COURT
GR.BOMBAY ( C.R.NO.06)
DATE : 03/11/2022
Adv. Mr. Ramchandra Narayanan for the plaintiff.
Adv. Ms. Pooja Thakkar for the applicants.
Adv.Mr. Diwate for the defendants/BMC.
ORAL ORDER
1. This Chamber summons has been taken out by Shri. Sunil
M. Bhagat seeking his impleadment in this suit under Order I Rule 10 of
the Code of Civil Procedure.
2. This suit has been filed for declaration that the show cause
notice dated 24.12.2018 issued by the BMC under section 351 of MMC
Act is not legal and valid. According to the applicant, he is coowner
and landlord of the building known as “Khimiya Kunj” standing on plot
No. 42A, Sion(W) ( for the sake of convenience it is referred to as 'suit
building').
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3. The suit building consists of several flats. The plaintiff
occupies flat no.5 and the present applicant resides in flat no.8 of the
suit building. The applicant and his aunts namely Veena Bhagat and
Sheila Bhagat are coowners/ landlord/landladies of the suit building.
4. The suit building originally owned by the applicant's great
grandfather namely Choithram K. Bhagat. After sad demise of his
Choithram his two sons namely Madhowdas Choithram Bhagat and Mr.
Tirathads Choithram Bhagat became coowners of the suit building.
However, Mr. Tirathdas C. Bhagat settled down in Rajasthan at his
native place and he or his family never stayed in the suit building.
Therefore, Mr. Madhowdas Bhagat was alone managing the affairs of
the suit building. After sad demise of Madhowdas C. Bhagat, his son
Murlidhar who was father of present applicant managed the affairs of
the suit building alongwith the present applicant and his mother. Thus,
according to the present applicant , he is coowner and landlord of the
suit building.
5. The plaintiff is his tenant. The defendant/ BMC issued
showcause to the plaintiff alleging therein that he has made
unauthorized construction in the tenanted premises. The plaintiff has
challenged the validity of the said notice in this suit. Therefore,
according to the applicant, being landlord of the suit building his rights
are involved in the present suit and it would be affected if any order
passed in pursuance of the impugned notice. So, he contends that he is
necessary and proper party in this suit.
6. The plaintiff has filed reply and resisted the chamber
summons of the applicant. The plaintiff has denied that the applicant is
his landlord. It is his contention that in the present suit he has
challenged the validity of the notice issued by the defendants/BMC to
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him. So, the applicant is not necessary or proper party. So, he prays for
dismissal of chamber summons.
7. I have heard both the sides advocates and citations relied
by the advocate for the applicant. I have also gone through the
pleadings of both parties. In the light of averment of the party, it has to
be considered whether the applicant is necessary or proper party in the
present suit. A necessary party is one without whom, no order can be
made effectively; a proper party is one in whose absence an effective
order can be made but whose presence is necessary for a complete
adjudication and final decision on the question involved in the
proceeding. In this suit the subject matter is show cause notice issued by
the defendants/BMC to the plaintiff under section 351 of the MMC Act.
Thus, controversy revolved around validity of the said notice issued by
the defendants/BMC to the plaintiff and the issue is whether show
cause notice is justified or not.
8. The applicant is interested in supporting the
defendants/BMC and sustaining the action taken against the plaintiff.
But the basic question which is required to be decided in this suit is
validity of show cause notice dated 24.12.2018. Hence, dispute revolves
around the legality of show cause notice. The applicant is claiming to be
coowner or landlord of the suit building. The plaintiff is called upon to
remove demise structure by the show cause noticed dated 24.12.2018.
So grievance of the defendants/BMC is against the plaintiff is for
violation of Municipal laws. Question as to whether there is violation of
Municipal Laws by the plaintiff only is in between plaintiff and
defendants/BMC. On perusal of the said notice, what it appears that it
has been addressed not only to the tenants i.e. plaintiff but also owner
or landlord of the suit building. The plaintiff claimed his ownership over
the suit building. In this connection, the plaintiff has filed on record
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certain documents. The plaintiff has relied on one letter issued to him
by the plaintiff on 05.01.2021 thereby seeking his permission for
repairing door of tenanted premises. Another letter dated 27.01.2022 is
also placed on record. From the same it can be seen that the present
plaintiff alongwith remaining tenants of the suit building addressed to
the present applicant and agreed to contribute expenses if any charged
by the defendants/BMC about water supply to the suit building. Copy of
Bail Application which is moved by the elder son of plaintiff in learned
Metropolitan Magistrate, Kurla is also filed on record, wherein it has
been mentioned that the present applicant being landlord of the
plaintiff filed complaint against him. Thus, from all letters which are
correspondence between the plaintiff and present applicant, primafacie
what it appears that plaintiff admitted or accepted applicant is landlord.
Question is whether landlord is necessary or proper party to the suit for
injunction against defendants/BMC for demolition of demised building .
The landlord has direct and substantial interest in the demised building
before demolition which notice under section 351 of the MMC Act was
issued. In the event of its demolition his right would materially affected
his right, title and interest in the property would be jeopardy with
tenant. Therefore, if action of demolition of notice structure initiated by
the defendants/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. 1842/2019 is allowed.
2. The plaintiff is directed to implead the present applicant namely
Sunil M. Bhagat as a party defendant in the suit within 14 days
from the date of this order.
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3. Chamber Summons No. 1842/2019 is disposed off.
(Rajesh K. Khomane)
Date03/11/2022 Adhoc Judge,City Civil Court,
Gr.Bombay.
Dictated on : 03/11/2022
Typed on : 04/11/2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09/11/2022 05.30 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
03/11/2022
JUDGMENT/ORDER signed by
P.O.on
09/11/2022
JUDGMENT/ORDER uploaded on 09/11/2022
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