Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch.S. 2008-2019 in Suit No. 2688-19
CNR NO.MHCC010113872019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS No. 2008 OF 2019
IN
L.C. SUIT NO. 2688 OF 2019
Riyad Rashid Oomerbhoy ...Applicant/Intervenor
In the matter between
Abubacker Salim Begmohamed …..Plaintiff
Versus
Designated Officer, Assst. Engineer & Anr. …..Defendants
Coram : Shri Sanjay N. Yadav, Judge
(Court Room No. 05)
Date : 25th November, 2019.
Appearance:
Ld. Adv. Mr. J.K. Master for applicant.
Ld. Adv. Mr. Hardik Desai for plaintiff
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. Heard Learned Advocate for the applicant, Advocate for the
plaintiff and Learned Advocate for the defendant corporation.
2. By this Chamber Summons, the applicant seeks to be added as
party defendant to the suit.
It is the contention of the applicant he as well as the plaintiff are
the members of the Wakf are the descendants of the Settlor and as such
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are the beneficiaries of the Wakf. It is contended that the notice
structure is illegal is causing hindrance to the applicant and is putting
additional load on a 104 years old building. The applicant accordingly
has sought to be permitted to be added as party in the suit. The
plaintiff had contended that the notice structure is illegal, has caused
grave harm and further immense hardship and extreme discomfort. It is
contended that tenants are unable to access water tanks and other
facilities because of the unauthorised construction.
3. The Learned Advocate for the applicant relied upon following
judgments:
a) in case of Kantaben Chandulal Kalidas Vs. Parsi Dairy farm &
Ors. (1985)Mh.L.J. It had observed as follows:
''Order 1, Rule 10 (2) gives ample power to Court to direct
joinder of parties. Such a joinder against the will of the plaintiff is not
ordered but if necessary in the interest of justice the same can nonetheless
be directed. The owner of a property with regard to which an injunction
suit of the present type is filed could be impleaded as a proper party upon
the application of such owner notwithstanding the fact that the suit was
for injunction against the Municipal Corporation.''
b) in case of Rajnish Kumar Jain & Ors. Vs. Thane Municipal
Corporation & Ors. 2018 SCC OnLine Bom 739. It had observed as
follows:
''At this stage, it may also be stated that, the impleadment of
the present Petitioners in the Suit filed by Respondent Nos. 2 and 3 is
allowed, thereby indicating that both the parties are interested in the same
subject matter of the litigation i.e. suit plots claiming ownership and rights
over the same property.''
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c) in case of M/s. Aliji Monoji & Co., Vs. Lalji Mavji & Ors. AIR 1997
Supreme Court 64. It had observed as follows:
''The landlord is a property party to the suit for perpetual
injunction against Municipal Corporation for demolition of demised
building on ground of unauthorised construction through no relief is
sought from against him.''
d) in case of Chandrakant Dharma Bhonu Vs. Pandurang
Ramchandra Dandekar. It had observed as follows:
''The petitioner is directly and substantially concerned with
and affected by the proceedings before the City Civil Court for more than
one reason. The action of carrying out an allegedly unauthorised
construction and the alleged encroachment by the first respondent directly
affects the rights of the petitioners.'' Therefore is necessary party.
e) in case of Lodha Properties Development Pvt. Ltd. Mumbai Vs.
Kedia Holdings Pvt., Ltd. Mumbai 7 ors. It had observed as follows:
''Applicant in the plaint for which an opportunity
undoubtedly is required to be given to the Applicant, the same can only be
given if the Applicant is impleaded in the suit in question.''
g) in case of Rajiv Goel Vs. Sohan Lal Khosla & Anr. 2010 SCC
OnLine P & H 1884:AIR 2010 P & H 111. It had observed as follows:
''It is not a strict rule that a person cannot be added as a
defendant against the wishes of the plaintiff. If a person is likely to be
affected by the result of the suit, he becomes a proper party and should be
allowed to be added.''
f) in case of Jivanlal Damodardas Wani Vs. Narayan Ukha Sali 1971
SCC OnLine Bom:47 (1971) 73 Bom LR 814: AIR 1972 Bom 148
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4. It is settled law that the plaintiff is dominus litis and had not
bound to sue every possible adverse claimant in the same suit and he
can choose to implead only those persons against whom he wishes to
proceed but the Court may at any stage of the suit direct addition of
parties. A party can be joined as defendant even though the plaintiff
does not think that he has any cause of action against him. The
question of impleadment of a party has to be decided on the touchstone
of Order 1 Rule 10 which provides that only a necessary and proper
party may be added.
Rule 10(2) gives a wide discretion to meet every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the
necessary party on record. 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 and final decision on the question involved in the proceeding.
The judicial discretion in addition of parties has to be exercised in view
of all the facts and circumstances of a particular case. The Court is
empowered to join a person whose presence is necessary for the
prescribed purpose and cannot under the rule direct the addition of a
person whose presence is not necessary for that purpose. If the
intervener has a cause of action against the plaintiff relating to the
subject matter of the exist cause of action, the Court has power to join
the intervener so as to give effect to the primary object of the order
which is to avoid multiplicity of actions.
5. In case of Mohamed Hussain Gulam Ali Shariffi V/s MMC &
Ors. 2017 (6) ALL MR 420 (S.C.) The Hon'ble Supreme Court
observed paragraph no. 13 to 18 as under:
13) In our considered opinion, having regard to the nature of
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the controversy, which is the subject matter of the suit respondent nos.
2 and 3 are neither necessary nor proper parties. As would be clear
from mere perusal of the plaint, the basic question, which is required to
be decided in the suit, is whether notice issued under Section 351 of the
Act by respondent no. 1 (Corporation) to the appellant is legally valid
or not (see prayer (a) in the plaint page 251 of Volume II of S.L.P.
Paper Book).
14) To decide this question, in our considered opinion, the only
necessary and proper party to the suit is the Mumbai Municipal
Corporation, Greater Mumbai i.e. Respondent no. 1, who has issued
such notice, and for deciding this question either way, the presence of
respondent nos. 2 & 3 is not at all required. In other words, the suit can
be decided even in the absence of respondent nos. 2 and 3.
15) It is a settled principle of law, which does not need any
authority to support the principle, that the plaintiff being a dominus litis
cannot 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 nonimpleadment of such necessary party.
Such does not appear to be a case here.
16) We do not find that the presence of respondent nos. 2 and
3 in the facts of this case is required for deciding the legality of notice
impugned in the suit on merits because the dispute centers around the
question of legality and validity of the notice which, as mentioned
above, arises between respondent no. 1, who has issued the notice, and
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the person to whom it is given i.e. appellant.
17) In the suit in question, the Court is not called upon to
adjudicate the rights between the appellant and respondents nos. 2 and
3 in relation to the suit house, Any such dispute, if arises, the same can
be decided in the separate suit, which is pending between the parties or
may be field, if required, by the parties against each other but such
dispute cannot be tried on the cause of action pleaded in the present
suit by the appellant where the lis is essentially between the appellant
(plaintiff) and respondent no. 1. Merely because th suit house is the
subject matter between all the parties is no ground to get the dispute
arising between the parties settled in one suit regardless of the nature of
cause of action on which the suit is founded.
18) We cannot, therefore, agree with the reasoning of the two
Courts that since respondent nos. 2 and 3 are proper parties (though
not necessary) to the suit and, therefore, they should be arrayed as
party defendants.
It was observed by the Hon'ble Court that plaintiff cannot be
forced to add any person as party to his suit unless it is held keeping in
view of pleadings that person sought to be added as a party is a
necessary party and without presence neither the suit can proceed 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. It is observed that in order to
decide the legality of the notice, the presence of the landlord is not
necessary. It is observed that the Court is not called upon to adjudicate
the rights between the proposed respondents. It was further held that
merely because the suit house is the subject matter between all the
parties is no ground to get the dispute arising settled in one suit
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regardless of the nature of cause of action on which the suit is founded.
6. The Hon'ble Bombay High Court relying upon the judgment in
Civil Appellate Jurisdiction in Writ Petition No. 7123/2018 in case
of Deju Somaya Salain V/s MMC & Ors, observed that the Court is
bound by the later judgment of the Hon'ble Supreme Court i.e.
Mohamed Hussain Gulam Ali Shariffi V/s MMC & Ors., 2017(6) ALL
M.R. 420 (S.C.) The order of the Trial Court adding the landlord as
party was in the set aside.
7. Admittedly in the present suit, the notice under Section 354A of
the M.M.C Act, 1888 is challenged. In the light of the judgment in case
of Mohamed Hussain Gulam Ali Shariffi V/s MMC & Ors. The
authorities relied by plaintiff do not help his cause. The applicant
cannot said to the necessary party.
The legality of the impugned notice in the suit is to be decided on
merits. The disputes centers between plaintiff and the corporation and
the dispute between plaintiff and the applicant cannot be settled in the
present suit.
8. So also the Hon'ble High Court in case of Deju Somaya Salain
V/s MMC & Ors. had observed that it is bound the later judgment of
the Supreme Court in case of Mohamed Hussain Gulam Ali Shariffi
V/s MMC & Ors. which is later of the judgment in case of Aliji
Momonji & Co V/s Lalji Mavji & Ors. (1996) 5 Supreme Court Cases
379.
This Court is also bound by the later judgment of the Supreme
Court in case of Mohamed Hussain Gulam Ali Shariffi V/s MMC &
Ors. and the judgment of the Hon'ble High Court in case of Deju
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Somaya Salain V/s MMC & Ors.
The application for adding the the applicant therefore, cannot be
entertained.
In the result, following order is passed.
ORDER
Chamber Summons No. 2008 of 2019 is rejected.
(Sanjay N. Yadav)
Judge,
Date: 25.11.2019 City Civil Court, Mumbai.
Dictated on : 25.11.2019
Transcribed on : 27.11.2019
Signed by HHJ on : 03.12.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.12.2019 at 5.20 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. S. N. Yadav
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
25.11.2019
JUDGMENT/ORDER signed by P.O.
on
03.12.2019
JUDGMENT/ORDER uploaded on 03.12.2019
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