Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO : MHCC010138162022. .1. CH/S No. 2102/2022 in
L.C. Suit No. 2709/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 2102 OF 2022.
IN
L.C. SUIT NO. 2709 OF 2017.
Digambar Vyankatrao Kharatmol. …………...... … PLAINTIFF.
V/s.
MCGM. …………………………………….....….. … DEFENDANT.
M/s. A.A. Enterprises. …………………….....…. … APPLICANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 20th July, 2024.
APPEARANCES :
Mr. Rahul Raut, Ld. Advocate for the Plaintiff.
Mr. Arvind Rathod, Ld. Advocate for the Defendant/MCGM.
Mr. J.K. Shah, Ld. Advocate for the Applicant.
*****
01. The applicant has taken out this Chamber Summons ('the
Ch/s.'), for his impleadment as defendant No. 2 in this suit. Perused the
Ch/s., the accompanying affidavit of Mr. Mohd. Akbar Jagrala, Partner
of the applicant, reply of the plaintiff and the applicant's reply-rejoinder.
Gone through the documents relied by the parties.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether the applicant's presence is
necessary in order to enable this Court
effectually and completely to adjudicate
upon and settle the questions involved
in the suit?.……………………………… ....
Yes. His presence is
required as proper
party for this suit.
(2). What Order? ..............…....................... …. As per Final Order.
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CNR NO : MHCC010138162022. .2. CH/S No. 2102/2022 in
L.C. Suit No. 2709/2017.
-:REASONS FOR THE FINDINGS:-
AS TO POINT NO. 1 :
03. By filing this Ch/s., the applicant came with a specific case
that by virtue of the Registered Deeds of Conveyance dtd. 02.02.2011,
he is the lawful owner of the land bearing CTS No. 94/C, New CTS No.
94/C/1, Survey No. 45, Hissa No.1-A, at Sai Leela CHS, Opposite Jivan
Sangram Society, Shivshakti Nagar, Opp. L&T Gate No.7, S.V. Road, at
Tunga Village, Mumbai (‘the suit land’). The suit premises is situated on
the suit land and being aggrieved by the unlawful construction carried
by the plaintiff, the applicant is compelled to take out this Ch/s.. Hence,
he is the necessary and proper party to this suit.More so, as the plaintiff
encroached upon the suit land by constructing the suit premises, firstly,
this applicant lodged complaint against the same with defendant No. 1
and hence, the notice U/s. 351 of the MMC Act was issued to him. This
way, his presence is necessary to assist this Court and to decide the suit
issues finally. Earlier, the plaintiff filed suit No. 1833/2018. However, in
that suit also, he did not claim any reliefs as regards his ownership and
it is also pending for consideration. In this backdrop, being the owner /
landlord of the suit land, he prayed for his addition in this suit. On his
turn, the plaintiff denied this NM as the applicant didn’t offer inspection
of the alleged Deeds of Conveyance of dtd. 02.02.2011 and he is neither
the necessary nor the proper party to this suit. Further, the independent
suits for declaration of ownership are pending in Court for adjudication.
The plaintiff is in possession of the suit premises, along-with this land,
and even the applicant knew this fact. Still, on 27.03.2017, he lodged a
false complaint against him with defendant No.1. He is not the landlord
or owner of the suit land and hence, this Ch/s. is liable to be dismissed.
In reply re-joinder, the applicant submitted that in suit No. 1833/2018,
more particularly, in para 13 to 15, and the documents filed at Exhibit K
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CNR NO : MHCC010138162022. .3. CH/S No. 2102/2022 in
L.C. Suit No. 2709/2017.
and L of the plaint compilation, the plaintiff also pleaded as regards the
above said Conveyance Deeds, which go to reveal that this applicant is a
lawful purchaser of the suit land. Even, he is joined as defendant No. 33
in the said suit. Still, the plaintiff didn’t assail legality of the said Deeds
and, rather, he admitted its execution. Consequently, this Ch/s. deserves
to be allowed. Else, he would suffer irreparably. In support of his claims,
the applicant filed copy of plaint, in suit No. 1833/2018, along-with the
documents annexed therewith.
04. Heard both the sides. Ld. counsel for the plaintiff submitted
that as the applicant is not a necessary or proper party to this suit, this
Ch/s. is to be dismissed. The plaintiff is dominus-litis of the matter and
therefore, he can't be compelled to join the applicant as defendant No.2
in this suit. In support of his contentions, he placed his reliance on the
matter of Mohd. Hussain Gulam Ali Shariffi Vs. MCGM, (2020) 14 SCC
392. Whereas, Ld. Advocate for the applicant submitted that he, being
the lawful purchaser of the suit land, his vital rights are involved in this
suit, specially when this notice is issued under Section 351 of the MMC
Act. As such, he is the necessary party to this suit. To support his stand,
he relied on the case of Ashok Babulal Avasthi Vs. Munna Nizamuddin
Khan, in W.P. No. 6933/2022, dtd. 29.11.2023.
05. Considering the rival submissions, at the outset, it is worth
notable that by filing this suit, the plaintiff prayed for a declaration that
the notice of dtd. 02.05.2017, issued U/s. 351 of the MMC Act, and the
Order dtd.30.10.2017, passed pertaining to the suit premises situated at
CTS No. 94/C, New CTS No. 94/C/1A, at Village Tunga. Now, in view of
this Ch/s., the applicant is presenting himself as the lawful purchaser of
this land. True that in reply to this Ch/s., the plaintiff denied validity of
the said Conveyance Deeds of dtd. 02.02.2011, relied by this applicant.
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CNR NO : MHCC010138162022. .4. CH/S No. 2102/2022 in
L.C. Suit No. 2709/2017.
However, contrarily, the plaint in suit No. 1833/2018 goes to reveal that
even the plaintiff is aware about execution of the said Registered Deeds.
In that matter, he contended that defendant Nos. 2 to 30 (therein) got
executed the Registered Power of Attorney dtd. 02.02.2011 in favour of
defendant Nos. 31 and 32 (therein) as to enable them to enter into the
Agreement for the Conveyance with defendant No. 33 (therein) i.e. this
applicant. Moreover, in view of the plaint compilation, this plaintiff filed
the Power of Attorney and the Conveyance Deed at Exhibit K and L. On
bare perusal of this Conveyance Deed, it is clear that by virtue thereof,
the applicant also lawfully purchased the land, where the suit premises
is situated. I do agree that in the light of the reliefs claimed on trial, the
scope of this suit is restricted. However, it can not be lost sight of that as
the applicant is lawful owner of the suit land, surely, his vital rights are
involved in this matter, specially when the suit notice is issued U/s. 351
of the MMC Act. Here, it is also pertinent to note that even by filing suit
No. 1833/2018, the present plaintiff didn't question legality of the said
Registered Power of Attorney and the Deeds of Conveyance, standing in
the applicant’s favour. Consequently, it cannot be said that their claim of
ownership is the subject matter of the said suit. Therefore, in my view,
ratio laid in the case of Mohd. Hussain Gulam Ali Shariffi, Cited Supra,
is not applicable to this matter. On the other hand, as the plaintiff is not
denying execution of the said Power of Attorney and Conveyance Deed,
passing of any Order in the applicant's absence may adversely affect his
interest in the suit land. Obviously, as no reliefs are sought against him,
he is not the necessary but proper party to this suit. For this proposition,
the applicant rightly relied on the case of Ashok Avasthi, Cited Supra. To
sum-up, as his vital rights are involved in the suit land, I do feel that his
presence is must to effectually adjudicate upon the suit issues and in his
absence, the suit can't be finally decided. Hence, I answered point No. 1
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CNR NO : MHCC010138162022. .5. CH/S No. 2102/2022 in
L.C. Suit No. 2709/2017.
in the affirmative and to answer point No.2, I pass the following Order:
-: O R D E R :-
(i). Chamber Summons No. 2102/2022 is made absolute in
terms of prayer Clause (a) only. Accordingly, the plaintiff
is called upon to carry out the proposed amendment
/addition of the applicant as defendant No. 2 in the plaint,
positively till the next date, and to file copy of amended
plaint simultaneously.
(ii). The plaintiff is further called upon to ensure due service of
pleadings and documents of his reliance on newly added
defendant No. 2 within 14 days therefrom.
(iii). Chamber Summons No. 2102/2022 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 20.07.2024. City Civil Court, Mumbai.
Dictated on : 20.07.2024.
Transcribed on : 24.07.2024.
Checked and Signed on : 26.07.2024.
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CNR NO : MHCC010138162022. .6. CH/S No. 2102/2022 in
L.C. Suit No. 2709/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
26.07.2024 at 1.28 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 20.07.2024.
Judgment/Order signed by P.O. on 26.07.2024.
Judgment/Order uploaded on 26.07.2024.
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