Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order on C/S.2347-19 in Su.No.2725-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON CHAMBER SUMMONS NO.2347 OF 2019
(CNR No. MHCC010136082019)
IN
L.C. SUIT NO. 2725 OF 2018
KUMAR DARARA & ORS. ]...APPLICANTS
In the matter between
RAJESH HOUSING PVT.LTD, ]...PLAINTIFF
Versus
THE DESIGNATED OFFICER, ASST.
ENGINEER. ]...APPLICANT
Appearances:
Ld. Advocate Mr. Chawla for the Plaintiff.
Ld. Adv. Ms. Patil for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J. MORE
(Court Room no. 8)
DATED : 07th January, 2020
ORDER ON CHAMBER SUMMONS NO.2347 OF 2019
1] The Chamber Summons is filed by the applicants praying to
add them as a necessary and proper party in the suit. It is stated that
applicants consistence and various complaints. The Respondent/MCGM
was required to issue the impugned notice u/s.351 of MMC Act to the
plaintiff. The order dt. 17/12/2019 passed by the Hon'ble High Court
in Writ Petition No.1556/2019, the present applicants have
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2 Order on C/S.2347-19 in Su.No.2725-18
expeditiously approached this court to add them as a necessary party.
The order dt. 17/12/2019 directs defendants i.e. specifically to the
Assistant Commissioner, Nward, MCGM to decide the representations
of the applicants and other tenants being members of their association
in individual capacity within 8 weeks from filing of fresh represents
after going through the papers in the above suit and orders therein with
other directions.
2] It is further submitted that the final outcome of the notice
of motion will affect the representations pending and to be filed before
the Assistant Commissioner, NWard, MCGM.
3] The Chamber Summons strongly objected by the plaintiff.
It is stated that the plaintiff is dominus litis and it is a prerogative of
plaintiff to choose the party to the suit. The applicants are not
remediless as the order passed by the Hon'ble High Court permits the
individual members to approach the Defendant/Corporation. It is
admitted position that the applicants are members of HMC Welfare
Association, which is recent firm and not registered. On this count
alone, the applicants ought not to be joined as party defendants to the
present suit. The plaintiff is a owner of suit premises by way of
conveyance. There are internal grievances of tenants, which cannot be a
subject matter of suit. The issue pertains to be issue of tenancy and say
ought to be canvassed and decide in a separate suit. The applicants
being members of unregistered association. There were 41 members is
each members were allowed to intervene it will lead to canvass.
4] Heard both sides at considered length. It is admitted
position that suit is filed against the BMC challenging the notice
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u/s.354A of the MMC Act dt. 22/9/2011. It reflects in the pleadings in
the plaint that “there was concerned of safety and security which was
raised by plaintiff and also the tenants of property” therefore it
transpires that the tenants within the capacity of members of HMC
Welfare Association has filed writ petition before the Hon'ble High
Court.
5] Let us focus a light on Rule of necessary party
There is essential distinction between unnecessary party
and proper party to a suit. A necessary party one who is present is
indispensable to the constitution of the suit, against whom the relief is
sought and without who no effective order can be passed whereas a
proper party is one in whose absence and effective order can be passed,
but whose presence is necessary for complete and final decision on the
question involve in the proceeding. In short, in absence of necessary
party no decree can be passed. In this particular case, the applicant has
to prove that they are either necessary or proper parties without whom
the suit cannot be proceed and decree cannot be drawn up accordingly.
The Learned advocate for plaintiff placed reliance on The Law laid
down by the Hon'ble Supreme Court in
1] Mohd. Hussain Gulam Ali Shariffi V/s Municipal
Corporation of Greater Bombay and ors. In Civil
Appeal No.12273 of 2016
6] It is held that having regard to the nature of controversy
which is subject matter of suit, respondent nos.2 and 3 are neither
necessary nor proper parties. As would be clear from mere perusal of
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plaint, the basic question which is required to be decided in the suit, is
whether notice u/s.351 of the Act by respondent no.1 (Corporation) is
legally valid or not. To decide this question, in one considered opinion,
the only necessary proper party to the suit is the Mumbai Municipal
Corporation, Greater Mumbai i.e. Respondent No.1 who has issued such
notice
2] Deju Somaya Salian V/s The Municipal Corporation
of Greater Mumbai
His Lordship of our Hon'ble High Court held that
W.P.No.7123/2018 “The relief claimed in the suit filed by the petitioner
in the suit is only for challenging the validity of the notice issued by
respondent no.1 u/s.354A of MMC Act. I am Respectfully bound by the
latest judgment of the Supreme court in case of Mohd. Hussain.
3] Sandeep Bafna V/s MMC, Mumbai & Anr.
W.P.No.5525 of 2018
In this judgment the Hon'ble High Court referred and
accepted the ratio laid down in above judgment.
5] All these case laws are clinchingly applicable to the case in
hand. In short it transpires that if suit is filed against the municipal
corporation Mumbai challenging the notice issued u/s.351 of MMC Act,
on description of suit structure demolition of industrial shades carried
out by party himself without permission of competent authority and
barricading plot using MS sheets. This notice itself challenged in the
capacity as a owner by the plaintiff and therefore as the subject matter
of the suit is restricted on the point of "notice" issued by the
defendant/Municipal Corporation this applicant does not have any right
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to implead them as party to the proceeding as concrete dispute is
between plaintiff and Mumbai Municipal corporation.
6] The Hon'ble Apex Court categorically held that if basic
question which is required to be decided in the suit, is legality of Notice
issued by corporation in same sense the case in hand also transpires
dispute on count of Notice u/s 351 of MMC Act. Therefore, only
Municipal Corporation is made as a only Defendant. Thus, in view of
pleadings of parties before me and law laid down by Hon'ble Apex
Court which is "Law of Land". The application to implead as a party to a
suit deserves to be rejected. Accordingly, I hold to pass following order:
O R D E R
1. Chamber Summons No.2347/2019 is rejected being
devoid of merits
2. Cost in Cause.
(U.J. More)
Judge,
Date : 07/01/2020 City Civil Court, Gr. Mumbai
Dictated on : 07.01.2020
Transcribed on : 07.01.2020
Signed by HHJ on : 08.01.2020
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6 Order on C/S.2347-19 in Su.No.2725-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.01.2020 at 11.30 a.m.
NAME OF TYPIST : Ms. Bhagyashri Kamble
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More.
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
07.01.2020
JUDGMENT/ORDER signed by
P.O. on
08.01.2020
JUDGMENT/ORDER uploaded
on
09.01.2020
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