Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010112792019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
CHAMBER SUMMONS NO. 1980 OF 2019
IN
NOTICE OF MOTION NO. 3616 OF 2019
IN
L.C. SUIT NO. 1923 OF 2019
CNR No. MHCC010112792019
Anisuddin Mohammad Jamil
Age and Occupation not known,
Having address at Room No. 29 and 30,
Ahmed Building, 236A, Mauldana Azad Road ,
Madanpura, Mumbai 400 008. ... Plaintiff
V/s.
Municipal Commissioner of Greater Mumbai,
having its office at Mahapalika Marg,
Mumbai 400 001.
... Defendants
And
Sunni Muslim Chota Qabrastan
A trust having Registration No. MSBW/ MUM
340/2015, having registered office at
Sunni Masjid E Bilal, Shuklaji Street,
Mumbai 400 008. .. Applicant
-- 1 of 12 --
2 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
Appearance:
Adv. A.R. Pandey for the Plaintiff.
Adv. Javed Khan for the applicant.
Adv.Smt. Vidya Vyavahare for MCGM/ defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 12.04.2022
ORDER
1. The applicant/ intervener has taken out this chamber summons
in the notice of motion for directing the plaintiff to implead him as
party defendant in the present suit. The chamber summons is strongly
opposed by the plaintiff by filing reply.
2. Perused the chamber summons, affidavit in support of the
same, the documents produced alongwith the chamber summons, the
reply filed by plaintiff alongwith documents and the authorities cited by
the respective advocates for applicant and plaintiff.
3. Heard Ld. Advocate for applicant, Ld. Advocate for plaintiff
and defendant respectively.
4. As it transpires from the chamber summons, it is the
contention of applicant that it is a registered Wakf and the chamber
summons is filed by the authorized person of Wakf. Applicant Wakf is
the landlord and owner in respect of Shop No.1 and 1A on ground floor
-- 2 of 12 --
3 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
at Corner of Chhota Sonapur, 250, Maulana Shaukatali Road, Mumbai
400 008 i.e the suit premises and the plaintiff is the tenant in respect of
commercial premises on which the hotel was earlier run by them. It is
pleaded that the plaintiff has carried out illegal work over the suit
premises, which is narrated in the chamber summons. Therefore, the
Municipal Corporation of Grater Mumbai issued notice under section
354A of MMC Act to the plaintiff on dtd.2.2.2019 calling upon him to
stop the illegal work being carried out in the suit premises and
adjoining shop. The plaintiff has removed the intermiddling wall of the
suit premises and adjacent premises and also removed the slopping roof
and have changed to flat roof. By making it a flat, the plaintiff have kept
8 AC Units on the said roof and also constructed two huged chimney. In
spite of receipt of notice under section 354A the plaintiff did not stop
the illegal work of additions and alterations of permanent nature. The
applicant had addressed complaint to MCGM on dtd.27.2.2019,
however, the plaintiff did not stop making alterations. The plaintiff has
carried out additions and alterations of permanent nature in utter gross
violation of MMC Act and MRTP Act as well as D.C.Rules. Even the
plaintiff have consumed the FSI available to the applicant. Furthermore,
the applicant has filed RAE Suit No. 987/2019 and RAE Suit
no.988/2019 against the plaintiff in Small Causes Court regarding
carrying out business activity in the suit premises and additions and
alterations. The unlawful occupants and the plaintiff had tendered
undertaking that they will not carry out any addition and alteration in
the suit premises. However, the plaintiff still constructed and altered the
suit premises. The applicant has specifically submitted that in order to
bring these facts on record it is necessary in the interest of justice to join
them as a party defendant no.2 in the present suit. Hence, the chamber
-- 3 of 12 --
4 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
summons is taken out with the prayer of their impleadment by making
the chamber summons absolute.
5. The Ld. Advocate for applicant placed reliance on the
authority in the case of M/s. Dunhill Doma Coop Hsg So. Ltd. V/s.
Manuel Mergulhao and Others in W.P(Stamp) No. 93200 of 2020.
In this authority it is held that the society owning the premises in which
unauthorized construction was made for which a notice under section
351 of MMC Act was issued, was vitally affected and ought to be joined.
Therefore, on the basis of said findings the applicant in said matter was
allowed to be impleaded in said suit distinguishing the findings in
Mohd. Hussain Gulam Ali Shariffi V/s. Municipal Corporation of Gr.
Bombay and others . It is further held in the said authority that in the
case of Mohd. Hussain the impleadment was sought simply on the
basis that the suit property was subject matter of agreement for sale in
between an existing party to the suit and the intervenor, specific
performance of which was sought separately by the third party
intervenor. Therefore, the impleadment was not allowed. But in the
case in hand the petitioner society is the owner of the whole structure
including the stilt portion, which is claimed to have been unauthorized
by enclosed by the plaintiff. The applicant is vitally interested in
protecting its property. Therefore, the applicant is necessary to be
joined as a party defendant to the suit.
6. The advocate for applicant has further placed reliance on
the authority in the case of Mulraj Khatau and Son’s Ltd. V/s. Nagesh
Samar Bahadur Singh reported in LAWs (Bom.) 2018 3 212 . In this
authority also similar findings are made allowing impleadment of the
-- 4 of 12 --
5 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
petitioner as defendant.
7. Relying upon said authorities the advocate for the applicant
made submissions that for the reasons stated in the above authorities,
the ratio in the case of Mohd. Hussain Gulam Ali Shariffi’s Case cannot
be made applicable to the present case. Being owner of the suit
premises, applicant is vitally interested in protecting the property,
hence, he may be added as party defendant to the suit.
8. The plaintiff has filed reply to the present chamber
summons and it is categorically submitted that the applicant is neither
necessary nor proper party to the suit and the presence of the applicant
before this court is not necessary in any manner to decide the issues
involved in the present suit. It is pointed out that the plaintiff has
challenged notice under section 351 of MMC Act issued by the
defendant MCGM stating that the same is issued illegally in high
handed manner and without any proper cause. The notice action is
challenged by the plaintiff. So the scope of suit is the illegal nature of
notice. Therefore, looking to the prayer sought in the plaint, the
presence of applicant is not at all necessary before this court for
adjudication of the suit. It is specifically said that they denied that
applicant is the landlord and owner of the suit premises. It is further
contended that even, if it is assumed that the applicant is the landlord
of the suit premises, then also they cannot be held as necessary or
proper party to the suit. Hence, the plaintiff prayed for dismissal of
chamber summons.
9. The ld. Advocate for plaintiff prayed that the applicant is not the
-- 5 of 12 --
6 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
necessary party to the present suit, hence chamber summons is liable to
be dismissed. In order to substantiate its submission, the plaintiff has
placed reliance on the following citations.:
1. Mohd. Hussain Gulam Ali Shariffi V/s. Municipal Corporation
and Gr. Bombay and Others , MENU/ SC/1710/2016.
2. Shriram Kishor Son of Chandrakant Urane V/s. City of Nagpur
Corporation in W.P.No. 937 of 2017 and 938 of 2017 of Bombay
High Court Nagpur Bench. Dtd. 4.4.2018.
3. Deju Somayya Salin V/s. MCGM and others in W.P.No. 7123 of
2018 of Bombay High Court dtd. 24.9.2018.
4. Sandeep Hiralal Bafana V/s. MCGM in W.P No. 5525 of 2018
of Bombay High Court dtd. 18.1.2019, and
5. Santosh son of Hanumant Salunkhe v/s. Municipal
Commissioner Ahemadnagar Municipal Corporation and others in
W.P.No.3398 of 2018 of Bombay High Court Aurangabad Bench
dtd. 4.5.2018.
10. Relying upon the ratio cited in all above authorities the
advocate for plaintiff has prayed for dismissal of the chamber summons.
11. I have gone through all the authorities cited by respective
parties. In the case of Mohd. Hussain Gulam Ali Shariffi as cited supra it
is held that the basic question which is required to be decided in the
suit, is whether notice issued under section 351 of the Act by the
respondent Corporation is legally valid or not. To decide this question,
the only necessary and proper party to the suit is the Mumbai Municipal
Corporation, Gr. Mumbai, who has issued such notice and for deciding
this question either way, the presence of respondent nos. 2 and 3 is not
-- 6 of 12 --
7 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
at all required. In other words, the suit can be decided even in the
absence of respondent nos. 2 and 3 .
12. In the above matter, the respondent nos. 2 and 3 filed
chamber summons seeking permission to implead them as defendant in
the suit. It was alleged that the respondent nos. 2 and 3 had an interest
in the suit house in as much as they claimed to have ownership rights in
the suit house and suit seeking specific performance of the agreement
was pending before the court. In those circumstances, it was prayed that
for proper adjudication for rights of the parties in relation to the suit
house, their impleadment is necessary. In those circumstances, the court
held that the question to be decided in the disputed suit is the legality
and validity of notice under section 351 of the MMC Act for which
rights of parties need not be adjudicated by the court. With said
findings, the impleadment prayer was rejected by High Court.
13. The advocate for applicant has submitted that in the case of M/s.
Dunhill Dome Coop Hsg. Soc. Ltd . as cited supra, the Hon’ble High
Court has distinguished said fact from the facts in Mohd. Hussain’s Case
and arrived at the conclusion that the party interested in the suit
property is the necessary party.
14. I have gone through the contents of the suit plaint and
notice of motion taken out by the plaintiff. It transpires that the
plaintiff has challenged the notice issued by the defendant no.1 MCGM
under section 351 of MMC Act with the prayer that the defendant and
their representative and/or any person claiming through the defendant
be restrained by an order of injunction of this court from in any manner
-- 7 of 12 --
8 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
demolishing and pulling down and/or interfering with and/or initiating
any action in respect of suit premises pursuant to the notice under
section 351 of MMC Act and also pursuant to the speaking order passed
by the defendants.
15. Thus, prayer clause shows that the scope of the suit is
limited as to the validity and legality of notice action proposed by the
defendant MCGM for demolishing the suit structure. The relief is only
against the notice. The same relief do not have direct nexus with the
rights of parties. The advocate for the applicant submitted that in the
case of Mohd. Hussain the rights of parties regarding suit premises
Wakf was subjudice and were not determined. However, in the present
suit applicants status as landlord is not under challenge. He is vitally
interested in the suit premises. In said circumstances, in their absence,
the matter cannot be adjudicated upon and effective decree cannot be
passed. Further more it is said that the tenant has no right to enter into
his litigation.
16. As I have stated above the scope of the suit is the
determination of notice action proposed by the defendant MCGM
against the notice structure allegedly constructed by the plaintiff. Said
nature of the suit is totally different from the nature of the suit dealing
with rights of parties to the suit structure. The court has to decide
whether, the structure is constructed without following the sanction
plan or without permission of defendant. For said purpose the
ownership of party cannot be a vital question. Furthermore, in the
present suit also, the plaintiff has challenged the ownership of the
present applicant over the suit premises and the applicant also placed
-- 8 of 12 --
9 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
various documents on record showing and justifying their ownership
tile over the suit premises. Said documents includes the order passed in
Suit No.692/1910, the mutation application order under Wakf Act,
1995, the order passed by Hon’ble High Court Civil interim application
No.1/2020 in Civil Revision Application (Stamp) No.180/2020 and the
order passed in the RAE Suits before Small Causes Court etc. Said
record shows that again this court has to enter into the merits of the
case regarding ownership of the suit premises which cannot be a subject
matter of present suit.
17. Above all it transpires from the contents of chamber
summons that the applicant also alleged about the additions and
alterations allegedly made by the plaintiff in the suit premises justifying
the issuance of notice under section 351 of MMC Act against the
plaintiff. Obviously the defendant/MCGM, who has issued notice, also
come up with the same contentions. In the said circumstances, I hold
that it is only the MCGM which can be a necessary and proper party to
the present suit, who can prove the unauthorized construction if any.
Even, if it the applicant is not added in the suit to justify the notice
action, it is for the plaintiff to prove that alleged construction is legal
and made as per the rules and regulations framed for the purpose of
constructions of the premises i.e with the permission of Competent
Authority.
18. The plaintiff has challenged the impugned notice issued by
the Municipal Corporation. The plaintiff is the tenant of the notice
structure. The plaintiff has not sought any relief against the present
applicant. Therefore, in view of the observations of Hon’ble Apex Court
-- 9 of 12 --
10 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
in the case of Mohd. Hussain Gulam Ali, cited supra and facts of the
present case, it appears that in the present matter, the question for
determination is whether the notice issued by the defendant under
section 351 of MMC Act is legally valid or not.
19. It is settled principle of law that the plaintiff being a
dominus litis cannot be forced to add any person as party to his suit
unless it is held keeping view the pleadings and the reliefs claimed
therein that a person sought to be added as a party is necessary party
and without his presence neither the suit can proceed nor the relief can
be granted. It is only when such person can be allowed to become party,
else the suit will have to be dismissed for non impleadment of such
necessary party.
20. Such is not the case appearing here, in the present matter.
Even in absence of the owner or occupier of the premises, the party to
whom notice has been issued and the party who has issued the notice
can plead and prove the legality and validity of notice action.
21. Furthermore, considering the nature of the suit and the
relief claimed in the present matter, it transpires that non impleadment
of applicant as a party defendant is not likely to adversely affect the
rights and interest of the applicant. The applicant can sue the plaintiff
separately by filing a separate suit regrading alteration and addition or
change of user. Hence, considering the said circumstance, I hold that
the authority cited supra by the advocate for the plaintiff including the
authority in the case of Mohd. Hussain, are squarely applicable to the
present case. Further, I hold that the presence of the applicant before
-- 10 of 12 --
11 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
the court is not necessary in order to enable the court to effectively and
completely to adjudicate upon and settled all questions involved in the
suit.
22. Hence, I hold that in the present matter impleadment of the
applicant as defendant is not necessary and the plaintiff is not liable to
get the directions for such impleadment and amendment in the suit
plaint. As such the chamber summons is liable to be rejected with the
aforesaid findings. Hence , following order is passed:
ORDER
1. Chamber Summons stands dismissed.
2. The Chamber summons No. 980/2019 in Notice of Motion No.
3616/2019 is disposed off .
Date: 12.4.2022.
(A.H.KASHIKAR)
ADHOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.05)
Directly dictated on computer on : 12.4.2022
Signed on : 13.4.2022
-- 11 of 12 --
12 Ch/s no. 1980/2019 in NM no. 3616/2019
in L.C. Suit No.1923/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.4.2022 5.45 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
12.4.2022
JUDGMENT/ORDER signed by
P.O.on
13.4.2022
JUDGMENT/ORDER uploaded on 13.4.2022
-- 12 of 12 --