Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO. 2183 OF 2019
(CNR NO. MHCC01-012661-2019)
IN
L.C.SUIT NO. 3308 OF 2019
1. Mrs. Urvi Jayesh Ghatalia & Anr. … Plaintiff
V/s.
Municipal Corporation of Greater Mumbai ...Defendants
And
Rekha Sadan Cooperative Housing Society ...Applicants
Proposed defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 08/08/2024
Adv. Chaitanya Jadhav i/b SC legal for the plaintiff.
Adv. Dharmesh Vyas for the defendant/BMC
Adv. Priya Lombade h/f Adv. Bharat Joshi for the applicant.
ORAL ORDER
This chamber summons is taken out by Rekha
Sadan Co-operative Society, through its Secretary to implead
society as a necessary party to the suit.
-- 1 of 6 --
2
2. Read Chamber summons, reply filed by plaintiff.
Heard both the sides.
3. This is a suit for declaration and injunction.
Applicant averred that Housing society is a lessee by virtue of
Indenture of Lease dated 20.07.1961. But, the said Indenture
of lease dated 20.07.1961 is not filed on record. On the basis
of complaint dated 24.08.2023 impugned notice is issued by
the defendant/BMC. On perusal of true copy of extract of
resolution dated 01.12.2019, it appears that secretary of Rekha
Sadan Cooperative housing Society authorized to represent
Society. Hence, by virtue of resolution dated01.12.2019
present society through secretary are authorized to file present
chamber summons before the Court.
4. At this juncture, it is necessary to mention here that
“ a necessary party is a party whose presence for the suit is
absolutely essential and in whose absence an effective decree
cannot be passed. A person is a proper party if his presence
enables the Court to adjudicate upon the question raised in the
suit more effectually and completely. In the light of this settle
principle, applicant specifically averred that by virtue of
indenture dated 20.07.1961, the building Rekha Sadan
Cooperative Housing society is constructed and society is
owner of the building. In the present case it is not disputed
-- 2 of 6 --
3
that plaintiff is one of the flat holder i.e. flat No. 15, 3 r d floor
of applicant/ intervener society. The dispute in the present suit
is in respect of alleged unauthorised construction by covering
terrace with Ladi Coba roofing material. The open terrace is
meant for common use for all the member of the society.
Therefore, rights and interest of applicant/intervener society is
involved in the present case.
5. At this juncture, it is submitted on behalf of
applicant that society is a necessary party to the suit.
Applicant placed reliance in following case laws.
a] Ramesh Hirachand Kundanmal Vs. MCGM and
Ors. ( 1992) 2 SCC 524).
b] Aliji Monoji & Co. Vs. Lalji Mavji and Ors ( AIR
1997 SC 64).
c] Chandrakant Dharma Bhonj Vs. Pandurang
Ramchandra Dandekar ( 2004(2) Mh. L. J.
782.
d] Milind Dattatreya Sugavkar Vs. MCGM and
Ors. 2006 (2) Bom. C.R.617.
e] Mulraj Khatau and Sons Ltd. Vs. Nagesh Samar
Bahadur Singh and Ors (2018(3)Mh.L.J. 54.
6. On the other hand, plaintiff submitted before the
Court the dispute is in respect of alleged unauthorised
-- 3 of 6 --
4
construction. Therefore, presence of applicant/intervener is
not necessary for the just decision of the suit.
7. In the present case, it is not disputed that plaintiff
is owner of flat No.15. It is further not disputed that present
plot is a lease hold plot on which building known as Rekha
Sadan Cooperative Housing Society is constructed. Applicant/
society being owner of building are having rights in respect of
alleged encroachment on common terrace of the society. The
case laws placed on record by applicant/ intervener are helpful
to his case. Hence, submissions raised on behalf of plaintiff are
not acceptable one.
8. In the present suit alleged encroachment is on the
common terrace of the society, therefore, rights of intervener/
applicant society are involved in the subject matter of the suit.
Apart from this, in order to decide the legality of impugned
notice and speaking order presence of applicant/
intervener/society is found to be necessary. In absence of
applicant/intervener effective decree cannot be passed. Hence,
for effect, final adjudication of the subject matter of the suit
as well as to resolve the real controversy between the parties,
presence of applicant/ intervener as a proper party to the suit
is necessary. From the above discussions, in view of Order I
Rule 10 (2) of the Code of Civil Procedure, I proceed to pass
-- 4 of 6 --
5
following order.
ORDER
1. Chamber summons No.2183/2019 is allowed in terms of
prayer clause (a).
2. Plaintiff to carry out necessary amendment by impleading
applicant/intervener as a proper party to the suit in the
array of defendant within 14 days from the date of this
order and file amended plaint within statutory period.
3. Both the parties to take note of this order.
4. Cost in cause.
5. Chamber summons No.2183/2019 is disposed off.
Date- 08/08/2024 (R. B. Parvekar)
Judge, City Civil Court
Gr. Mumbai
D i c t a t e d o n : 0 8 / 0 8 / 2 0 2 4
Ty p e d o n : 0 8 / 0 8 / 2 0 2 4
s i g n e d o n :
-- 5 of 6 --
6
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/08/2024 03.00 p.m. ( Mayuresh
P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
08/08/2024
JUDGMENT/ORDER signed by
P.O.on
13/08/2024
JUDGMENT/ORDER uploaded on 13/08/2024
-- 6 of 6 --