Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. MHCC01-011587-2019. .1. CH/S No. 2038/2019 in
L.C. Suit No. 1379/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 2038 OF 2019.
IN
L.C. SUIT NO. 1379 OF 2018.
Harsha Vipinkumar Chopra. …........................... … PLAINTIFF.
V/s.
MCGM. ............................................................... … DEFENDANT.
And
Yeshwant Vaktavarmal Jain. ................................ ….. APPLICANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 20th December, 2022.
APPEARANCES :
Mr. R.V. Sipahimalani, Ld. Advocate for the Plaintiff.
Mrs. J.V. Mhatre, Ld. Advocate for the Defendant/MCGM.
Mr. Wasim Ansari, Ld. Advocate for the Applicant.
*****
01. The applicant has taken out this Chamber Summons (for
brevity the Ch/s.), for his addition as the defendant in the suit. Perused
the Ch/s., his accompanying affidavit and the reply. Also gone through
the plaintiff's written submissions. 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 the presence of the applicant is
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions
involved in the suit ?.............................. .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
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CNR No. MHCC01-011587-2019. .2. CH/S No. 2038/2019 in
L.C. Suit No. 1379/2018.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By this Ch/s., the applicant came with the specific case that
he, along-with his late mother Dhakubai Vaktavarmal Jain are owners of
properties bearing CTS Nos. 508 and 508/1 to 508/4, situated at Village
Kanjur, Bhandup and Mulund. Initially, this plaintiff filed LC Suit No. 90
of 2009, assailing the notice issued U/s. 354-A of the MMC Act, against
this structure. In that suit, this applicant and his late mother filed Ch/s.
No. 508 of 2010 for their addition as defendants In the said suit and it
was allowed. Further, when the plaintiff assailed this Order by filing WP
No. 8642 of 2011, the petition came to be rejected. In fact, as the father
of plaintiff started carrying unauthorized constructions, he lodged many
complaints against him with the defendant / MCGM and this action was
initiated. The plaintiff did not disclose the facts and did not join him as
party to this suit. He supported his contentions by relying on the copies
of P.R. Cards, Orders in WP No. 8642 of 2011, NM No. 1609 of 2018, in
LC Suit No. 90 of 2009. He also placed his reliance on the cases of Aliji
Momonji & Co. V. Lalji Mavji and the Others, (1996) 5 SCC 379 and on
Milind Dattatreya Sugavkar V. MCGM and Another, 2006 (1) Mh.
L.J.385. In reply, the plaintiff objected this Ch/s. on the counts that the
applicant's very rights as the alleged owner is disputed by Mr. Jayawant
Patil, who obtained a decree against them. Moreover, this Ch/s. is filed
belatedly and considering scope of the suit, his presence is not required
as party to this suit. Although, he admitted that in the said suit, he and
his late mother were added as the parties. In support of his contentions,
he relied upon the cases of Ramesh Hirachand Kundanmal V. MCGM
and the Others, (1992) 2 SCC 524 and on Mohd. Hussain Gulam Ali
Shariffi V. MCGM and the Others, 2017 (6) ALL MR 420.
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CNR No. MHCC01-011587-2019. .3. CH/S No. 2038/2019 in
L.C. Suit No. 1379/2018.
04. Having considered the rival stands, here, it is worth notable
that initially, the plaintiff filed Suit No. 90 of 2009, assailing the notice
issued U/s. 354-A of the MMC Act against this very structure. Further, it
is the matter of record that therein, this applicant and his mother were
joined as the parties. Even the said WP, filed by the plaintiff against this
Order of addition, stood rejected. Now coming to the present matter, it
is filed for the same structure, assailing the notice issued U/s. 351 of the
MMC Act. The record, more particularly copies of P.R. Cards, reveals the
applicant's name as owner of the said properties. Simultaneously, at this
stage, the plaintiff could not show that his alleged rights are otherwise
put to an end legally. On this background, apparently, he is owner of the
properties and considering the nature of the suit, he is having direct and
substantial rights in this matter. That apart, his presence is also decided
as 'necessary' in the earlier suit, filed relating to this identical structure,
but for the notice issued U/s. 354-A of the MMC Act. On this backdrop,
certainly, passing of any Orders, without affording him any opportunity
of begin heard, may affect his rights. Consequently, I am of the opinion
that in the light of ratios laid in the matters of Aliji Momonji and Milind
Dattatreya Sugavkar, Cited Supra, the applicant is a proper party to this
suit. I have gone through the ratios laid in the cases relied upon by the
plaintiff. In the case of Ramesh Hirachand Kundanmal, Cited Supra, the
'lessee' was held as not necessary or proper party in the suit whereas in
the matter of Mohd. Hussain Gulam Ali Shariffi, Cited Supra, there was
an agreement between the parties for 'the specific performance' and one
separate suit was pending. This is not the position in the present matter.
Here, the applicant is the owner of the properties, having the direct and
substantial interest in the structure. Therefore, with all respects, I am of
the view that the ratios laid in these cases are not appealing to this case.
Hence, I answered point No.1 in the affirmative and in answer to point
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CNR No. MHCC01-011587-2019. .4. CH/S No. 2038/2019 in
L.C. Suit No. 1379/2018.
No. 2, I pass the following Order :
-: O R D E R :-
(i). Chamber Summons No. 2038/2019 is made absolute in
terms of prayer clause (a) only.
(ii). The plaintiff is called upon to add the applicant as
defendant No. 2 in the cause title of plaint, within two
weeks from the passing of this Order, and to file copy of
amended plaint simultaneously. She is called upon to
supply the copies of pleadings on this newly added
defendant within two weeks therefrom.
(iii). Chamber Summons No. 2038/2019, accordingly,
stands disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 20.12.2022. City Civil Court, Mumbai.
Dictated on : 20.12.2022.
Transcribed on : 20.12.2022.
Signed on : 20.12.2022.
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CNR No. MHCC01-011587-2019. .5. CH/S No. 2038/2019 in
L.C. Suit No. 1379/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT /ORDER”
On 21.12.2022 at 02.08 a.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
20.12.2022.
Judgment /Order signed by P.O. on 20.12.2022.
Judgment/Order uploaded on 21.12.2022.
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