Final Order 1

Order Details: Chamber summons
Pdf Text: Order on C/S.2081-19 1 Su.No.1074-2018
MHCC010117842019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON CHAMBER SUMMONS NO. 2081 OF 2019
(CNR No. MHCC01-011784-2019)
IN
L.C. SUIT NO. 1074 OF 2018
(CNR No. MHCC01-004862-2018)
Sri. Sai Nidhi Realtors Pvt.Ltd., ]...Applicant
Versus
Rahul Nanji Dedhia ]...Plaintiffs
And
Municipal Corporation for Greater Bombay. ]...Defendants
CORAM : HIS HONOUR JUDGE
SHRI U.J. MORE
(Court Room no. 8)
DATED : 26th October, 2020
------------------------------------------------------------------------------------------------------
Appearances:-
Ld. Adv. Ms. Rubiya Taneja for the Plaintiff.
Ld. Adv. Mrs.Smita Chavan for defendant/MCGM.
Ld. Adv. Mr. Dalal a/w Adv. Harshal Parekh for applicant.
ORDER ON CHAMBER SUMMONS NO. 2081 OF 2019
1. The Chamber Summons is filed by the applicant to direct
the plaintiff to add the applicant as a defendant in the present suit
-- 1 of 6 --
Order on C/S.2081-19 2 Su.No.1074-2018
being a landlord of the suit property and be pleased to allow to plaintiff
to carry out necessary amendment in the plaint and proceedings.
2. The plaintiff filed reply alongwith written submission. It is
submitted by the plaintiff that, suit is filed by the plaintiffs for
declaration that impugned notices issued by the Defendants alleged to
be under section 354 of MMC Act, 1988, as illegal, unenforceable and
not binding upon the plaintiff and quashed and injunction on the
various grounds. The applicants have no locus and / or right or
authority to seek any relief by way of present Chamber Summons in a
suit which is filed by the plaintiffs.
3. There is existence relationship of a landlord and tenant
between the plaintiff and applicants but this court has no jurisdiction to
entertain such application as a specific remady is provided under
Maharashtra Rent Control Act, and therefore, prayed for rejection of
Chamber Summons.
4. I have heard, learned Adv. Mr. Dalal for the applicant. He
pithily submitted that, the plaintiff has challenged notice dated
10/04/2018 issued under 354 of MMC Act,1988. The notice itself
speaks allegations against the landlord i.e. this applicant. The plaintiff is
already making allegations against the applicant in capacity as a
landlord para No.11, 12, 16, and 17 of plaint. The para 09 of plaint
mentioned the name of applicant M/s. Sai Nidhi Realtors Pvt.Ltd.
Hence, applicant is necessary party. There is redevelopment process
pending between the parties. The applicant was participant in that TAC
process and also submitted suit structure audited report the subject to
-- 2 of 6 --
Order on C/S.2081-19 3 Su.No.1074-2018
outcome and suit is depend on the presence of this applicant in suit as a
party.
5. Heard both sides at considerable length.
6. The Chamber summons filed by the applicant is one under
Order 1 Rule 10 of the Code of Civil Procedure. It is well settled that a
party can be impleaded in the suit if either it is a necessary or a proper
party.
7. It is settled position that, the person who seeks equity shall
come with clean hands. After minute perusal of the plaint, it transpires
that, there are certain allegations against the landlord for not taking
any action as per provisions of the MMC Act and BMC guidelines for the
safer interest of tenants. Para 09 of plaint transpires that,
“The plaintiffs
state that subsequently it was learnt by the plaintiffs that one M/s. Sai
Nidhi Developers has acquired the rights in respect of the said building
from the said M/S Yashodhan Developers. The Plaintiff therefore
expecting a hope of repairs / redevelopment vide letter dated
19.12.2017 extended their full support and requested to call for an
urgent meeting and finalize the re-development process by giving full
detail as required under the law. In spite of their readiness and
willingness to co-operate nothing is heard from the landlord till date
except a bare words putting the life of plaintiff and other tenants with
their families in danger for all these years since 2010.” This reference
in plaint are serious allegations against the applicant i.e. landlord with
specific name. The plaintiff is not ready to implead the applicant as a
party by making serious allegations and seeking relief against the
-- 3 of 6 --
Order on C/S.2081-19 4 Su.No.1074-2018
landlord. Such approach at the instance of plaintiff is not fair and just
within the eyes of the law. If a party who wants relief against the other
party without making them party. It would be abuse of process of law.
8. The suit for challenging notice Under Section 354 of MMC
Act, 1988, regarding the dilapidated building/dangerous building,
where as per the law settled by Hon’ble Bombay High Court in Writ
Petition No. 1135 of 2014 and also MCGM guideline dated 25/05/2018,
in the context of dilapidated building the landlord has to play ample
role and therefore, I am of the opinion that, presence of landlord is
material in that suit to decide controversy between parties and certainly
it will not hamper rights of the plaintiffs. If any order passed against
suit structure where landlord / owner is not party; it would be mockery
of justice.
9. The Learned advocate for applicant placed reliance on
following case law:
“Civil Appeal No. 12273 of 2016 by Hon’ble
Supreme Court, Mohd. Hussain Gulam Ali Shariff V/s
Municipal Corporation of Greater Bombay.”
With due respect the ratio of the above Judgment is not
applicable to the considering facts of the case in hand.
10. The Learned advocate for applicant placed reliance on
following case law:
“Aliji Momonji & Co. V. Lalji Mavji in Civil
-- 4 of 6 --
Order on C/S.2081-19 5 Su.No.1074-2018
Appeal No. 9477 of 1996, decided on July 12, 1996 by
Hon’ble Supreme Court.”
I am Respectfully bound by the above judgment of the
Hon’ble Supreme court.
11. Thus, the allegations leveled against landlord i.e. applicant
are serious for which applicant needs to resist on merit. The presence of
applicant as a party defendant would be necessary to decide
controversial issues between parties. In short the applicant is necessary
party to present suit. Hence I pass to following order.
O R D E R
1. Chamber Summons No.2081 of 2019 is partly allowed.
2. Chamber Summons prayer (a) only is made absolute.
3. The plaintiff would be required to join the applicant as a party
defendant to the suit in question.
4. Plaintiff to carry out amendment within two weeks from today
and serve amended copy of the plaint on the defendant.
5. Chamber Summons No. 2081 of 2019 is disposed off accordingly.
(U.J. More)
Judge,
Date: 26/10/2020 City Civil Court, Gr. Mumbai
Dictated on : 26.10.2020
Transcribed on : 26.10.2020
Signed by HHJ on : 27.10.2020
-- 5 of 6 --
Order on C/S.2081-19 6 Su.No.1074-2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28.10.2020 at 12.20 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More.
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
26.10.2020
JUDGMENT/ORDER signed by
P.O. on
27.10.2020
JUDGMENT/ORDER uploaded
on
28.10.2020
-- 6 of 6 --