Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.: MHCC01-011300-2019. .1. CH/S. No. 1990/2019 in
L.C. Suit No. 2602/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1990 OF 2019.
IN
L.C. SUIT NO. 2602 OF 2017.
Naushad Kalim Shaikh+1. ..................……….. ….. PLAINTIFFS.
V/s.
MCGM…... …...…………………………………. ….. DEFENDANT.
And
A.H. Wadia Trust +4. …...……………………… …… APPLICANTS.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 29th November, 2022.
APPEARANCES :
Mr. Virendra T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendants.
Mr. Manish Trivedi, Ld. Advocate for the Applicants.
01. The applicants have taken out this Chamber Summons (for
the brevity the 'Ch/s.'), for their addition as 'the party defendants' in this
suit and for other ancillary reliefs. Perused the Ch/s. and accompanying
affidavit of applicant No.2. The plaintiffs admitted the plaint averments
as their say to this Ch/s.. 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 of the applicants is
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions
involved in the suit ?………………....…. …
Yes, they are the
proper parties to
the suit.
(ii). What Order ? ..............…....................... …. As per final Order.
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CNR No.: MHCC01-011300-2019. .2. CH/S. No. 1990/2019 in
L.C. Suit No. 2602/2017.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By filing this Ch/s., the applicants came with a specific case
that applicant No. 1 i.e. Trust is owner of the land bearing CTS No. 119,
Survey No. 8, Hissa No. 1 (Pt) and the other applicants are its Trustees.
Applicant No.1 is the Public Trust, owning lands at Mumbai Suburban.
Accordingly, the applicants have a direct interest in subject matter of the
suit. They are owners of the said land and also the structures standing
thereat. Hence, they are required to be heard before passing any Orders
in this suit, as the same may affect their rights in the property. Being the
owners, they are also the necessary and proper parties. On the contrary,
the plaintiffs are the trespassers, having no rights upon the said land. In
support of their contentions, they filed copy of Property Card pertaining
to CTS No. 119, etc.. and relied upon the cases of Aliji Momonji & Co. V.
Lalji Mavji and the Others, (1996) 5 SCC 379, Ranjitsingh Linga V.
MCGM, 2010(2) MhLJ 703, Adam A. Sorathia V. MCGM, 2001 (3) MhLJ
288 and on M/s. Dunhill Dome CHS Ltd. V. Manuel Mergulhao and
Others, in WP (Stamp) No.93200/2020, dtd. 05.10.2020. In the reply,
the plaintiffs resisted the Ch/s. on the ground that the applicants'
presence is not needed to this suit. In support of their contentions, they
relied upon the case of Mohd. Hussain Gulam Ali Shariffi V. MCGM &
the Others, 2017 (6) ALL MR 420 (SC).
04. Having considered the rival stands, at the outset, it is to be
noted that by filing this suit, the plaintiffs challenged the notice of dtd.
31.10.2017, issued U/s. 354-A of the MMC Act, and the Speaking Order
of dtd. 13.11.2017. The record shows that the applicants are the owners
of the said land, more particularly, where the suit premises is situated.
Being so, considering the nature of suit, their presence would certainly
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CNR No.: MHCC01-011300-2019. .3. CH/S. No. 1990/2019 in
L.C. Suit No. 2602/2017.
facilitate effectual adjudication of the suit issues. Further, the applicants
are having their direct and substantial interest in the subject matter and
therefore, passing of any Order, without hearing them, may affect their
rights. I do agree that they are not 'the necessary parties', in absence of
whom the suit cannot be decided. However, surely, their presence would
assist to decide the suit controversy and in this way, they are 'the proper
parties' to this suit. No prejudice would be caused even to the plaintiffs,
if they are joined as ‘the party defendants’ in this suit. On this backdrop,
in my opinion, the ratio laid in the cases, relied upon by the applicants,
is more appealing to the present facts. Hence, I answered point No.1 in
the affirmative and to answer point No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No.1990/2019 is partly allowed in
terms of prayer clause (a) only.
(ii). The plaintiffs are called upon to incorporate names of
the applicants as the defendants in the cause title of
plaint, within two weeks from the passing of this Order,
and to file the copy of amended plaint simultaneously.
(iii). The plaintiffs are further called upon to ensure due service
of pleadings on newly added defendants, within two weeks
therefrom.
(iv). Chamber Summons No. 1990/2019 accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 29.11.2022. City Civil Court, Mumbai.
Dictated on : 29.11.2022.
Transcribed on : 30.11.2022.
Checked and Signed on : 01.12.2022.
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CNR No.: MHCC01-011300-2019. .4. CH/S. No. 1990/2019 in
L.C. Suit No. 2602/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02.12.2022 at 12.05 p.m. Mrs. S.R.Mejari
Name of the Judge HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 29.11.2022
Judgment/Order signed by P.O. on 30.11.2022
Judgment/Order uploaded on 02.12.2022
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