Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining the Corporation from demolishing the structure. In Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which were movable on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent No. 2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was not a matter which was to affect the legal rights of the landlord in that case. In the instant case, the landlords would be entitled to place all the facts before the trial Court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely.1
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Bombay High Court
Adam A. Sorathia And Anr. vs Municipal Corporation Of Greater ... on 11 April, 2001
Equivalent citations: 2002 (4) BomCR 419
1. This revision application is directed against the order dated 25th January, 1999 passed by the Judge, City Civil Court, Bombay in Chamber Summons No. 1577 of 1998 in L.C. Suit No. 1549 of 1995 whereby chamber summons was dismissed and prayer to join the applicants as party defendants to the suit was turned down.
FACTS IN BRIEF
2. The facts giving rise to the present revision application, in nut shell, are as under :-
The applicant No. 1 is the managing trustee of applicant No. 2 Trust, duly registered under the Bombay Public Trust Act. Applicant No. 2 is the Owner of 'Sabri Chawl' in which respondent No. 2/original plaintiff is occupying shop No. 10 as sub-tenant of the applicants.
3. The respondent No. 1, is the Bombay Municipal Corporation and, had issued notice dated 2nd January, 1995, under section 351 of the B.M.C. Act to the respondent No. 2 in respect of alleged illegal and unauthorised extension of the shop premises and thereafter passed order dated 1st March, 1996 directing the removal and demolition of the said illegal extension of the shop.
4. The respondent No. 2/plaintiff has challenged the aforesaid notice and order passed in pursuance thereof by respondent No. 1, by filing civil suit, which is pending in City Civil Court, Bombay for hearing and final disposal. The respondent No. 2 has also obtained an injunction restraining the Corporation from executing its order, wherein removal of unauthorised extension of the said shop was directed by the Corporation.
5. The applicants, after having acquired knowledge of the aforesaid suit filed by respondent No. 2, against the Corporation, challenging the notice directing removal of unauthorised extension of shop premises, and filed chamber summons in the above suit for their impleadment as parties to the suit being landlords and owners of the shop premises, which was the subject matter of notice and order of demolition. Necessary affidavit in support of the chamber summons was filed. The respondent No. 2 also filed his reply to the said chamber summons, wherein he admitted that the applicants are the owners of the shop premises, however, opposed the chamber summons on its own merits. The trial Court after hearing both the parties dismissed the chamber summons vide its order dated 25th January, 1999.
6. Aggrieved by the above order inter alia; rejecting applicants chamber summons for impleadment, the applicants invoked revisional jurisdiction of this Court and contended that they have a direct interest in the subject matter of suit and the suit property thus the chamber summons taken out by them ought to have been allowed by the trial Court.
7. In the aforesaid backdrop, the real question that arises for consideration is : whether the owners and landlords of the suit premises are necessary or proper parties to the suit filed against the Corporation restraining it from demolishing part of the demised premises or appurtenant thereto.
8. The law relating to the necessary and proper parties to the proceedings is no longer untouched. The law is settled by series of judgments of this Court and of the Apex Court that where the presence of respondent is necessary for complete and effectual adjudication of the dispute, though no reliefs is claimed, against him, he is a proper party.
9. The necessity to join the applicants as parties to the suit would definitely depend upon the relief that has been claimed. It shall have to be examined whether the reliefs claimed cannot be granted without the intervention and participation of the applicants. If it is so, then they would definitely be called as necessary parties. Reference to sub-rule (2) of Rule 10 of Order 1 of Civil Procedure Code at this juncture, would not be out of place. Under this provision a person, whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate and settle all the questions involved in the suit, will be necessary party and will have to be added. The Supreme Court in Udit Narayan Malpaharia v. Addl. Member, Board of Revenue, Bihar, , observed :-
"Though these observations came to be made while entertaining the matter under writ jurisdiction and not under the Code of Civil Procedure, 1908 ("C.P.C." for short), the principle set forth is equally salutary. The description as given in sub-rule (2) of Rule 10 of Order 1 of Civil Procedure Code, coupled with observations cited supra would give the sufficient idea regarding the meaning of the term "necessary and proper parties"."
It is equally true that the nature of controversy involved would equally decide the status of a party, namely, whether it is necessary or not. Both the questions have to be considered side by side. From that point of view that controversy raised in this revision application would require close scrutiny.
9-A. One Mr. Yusuf Gulam Ali Hussan is a tenant in a respect of Shop No. 10, Sabri Chawl located opposite Jogeshwari Railway Station, Mumbai. The petitioner No. 2-trust is the owner and landlord of the said property of which the petitioner No. 1 is the managing trustee. Mr. Yusuf Gulam Ali Hussan, tenant of the shop is not actually carrying on business at the said shop but respondent No. 2 one Mr. Feroz Japanwala, claiming to be a sub-tenant, is running a hair cutting saloon. The Deputy Commissioner of Bombay Municipal Corporation, Mumbai had issued notice dated 2nd January, 1995 to respondent No. 2 Mr. Feroz Japanwala under section 351 of the B.M.C. Act calling upon him to show cause as to why the extended portion of the shop viz. unauthorised construction work referred to therein should not be removed. The Deputy Commissioner was to adjudicate upon the show-cause notice. But the said show-cause notice could not be adjudicated as respondent No. 2 stopped the adjudication proceeding by obtaining injunction in a suit filed on 4th March, 1995 in the Court of City Civil, Mumbai being Suit No. 1549 of 1995, impleading Municipal Corporation as a sole defendant to the suit.
10. The trial Court initially granted ad interim injunction upto 15th March, 1995. The said injunction was thereafter extended upto 5th October 1995. However, pending disposal of Notice of Motion No. 1328 of 1995, the trial Court had injuncted the Corporation from removing and/or demolishing the alleged unauthorised extended portion of the Shop No. 10 with enclosed otla on the rear side in enforcement, execution and/or implementation of the said notice dated 2nd January, 1995 and from in any manner disturbing or interfering with respondent No. 2's possession. It appears that after hearing the parties to the above notice of motion and the present applicants, the same was disposed of by the trial Court vide order dated 30th September, 1995 directing the Deputy Commissioner to pass appropriate order after hearing the petitioner. The notice of motion was accordingly disposed of. It appears that the present applicants had also filed a writ petition bearing Writ Petition No. 1461 of 1995 before this Court seeking direction against the Bombay Municipal Corporation that they should also hear the applicants while adjudicating upon the show-cause notice. Accordingly, necessary direction allowing this request was issued by this Court while disposing of the said writ petition.
11. In the meanwhile, the present applicants also took out chamber summons for getting them impleaded as party defendants in the suit. The aforesaid prayer made by the applicants was turned down by the trial Court. Aggrieved by the said order present revision application is preferred.
THE ISSUES
12. In the wake of aforesaid facts and circumstances, the questions which need consideration are : whether the presence of the applicants is necessary for adjudicating the real controversy involved in this litigation and whether the present applicants are necessary or proper parties?
CONSIDERATION
13. Both the parties argued their respective cases at length. At this juncture, before adverting to the above questions, it will be necessary to refer to the judgment of the Calcutta High Court in case of Narain Chandra Garai v. Matri Bhandar Pvt. Ltd., wherein it was observed :
"It would appear, therefore, that persons may be added as a party only in two cases viz. (1) When he or she ought to have been joined as a defendant and is not so joined, (2) When without her presence the question in the suit cannot be completedly decided."
This is nothing but the reproduction of sub-rule (2) of Rule 10 of Order 1 of Civil Procedure Code. What the Calcutta High Court has observed is :
"The main consideration seems to be whether or not the presence of the petitioner is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in this suit. If the question at issue between the parties can be worked out without anyone else being brought in the stranger should not be added as a party. As already stated before, the petitioner cannot be considered to be a proper or a necessary party. That she may be eventually affected by the judgment or in the execution decree against the defendant No. 2 is a not a cogent ground to make her a party."
A similar view has been taken in Kaka Singh v. Rohi Singh, A.I.R. 1978 Punjab and Haryana 30. My attention was also invited to a ruling reported in Smt. Kantaben v. Parsi Dairy Farms, . The facts involved in that case were more or less similar. The Municipal Corporation had issued notice of demolition of the house and a tenant occupying that portion was served with the notice. In a suit the landlord put in an application for joining himself as a party because according to him he was the real person interested in the subject matter and it would be he who would suffer by the decree. In these peculiar circumstances, it was held that the landlord would be necessary party to the litigation.
RIVAL CONTENTIONS
14. It is the contention of the learned Counsel appearing for the applicants that the applicants being the owners and landlords of the suit shop, they would be in a better position to throw light on the controversy as to whether the alleged construction is legal or otherwise and, accordingly, their presence before the trial Court is necessary. The learned Counsel for the applicants placed reliance on the judgment of the Apex Court in the case of Aliji Momonji and Co. v. Lalji Mavji,1966(5) S.C.C. 379, and contended that the Apex Court ruled that in the event of demolition of building, right, title and interest of the landlord would directly be affected and, therefore, the landlord is proper party, even though, no relief is sought against him. The learned Counsel for the applicants further contended that in Writ Petition No. 1441 of 1995, Sabri Mosque Trust and another v. The State of Maharashtra and others, decided by learned Single Judge of this Court on 21st August, 1995, this Court had permitted the presence of present applicants before the Deputy Commissioner of Bombay Municipal Corporation and had directed him to hear the applicants while adjudicating upon the show-cause notice, issued by the Bombay Municipal Corporation for removal of illegal construction. The copy of the said order was produced before me and it was contended that if the landlords were permitted to appeal before the Deputy Commissioner and were authorised to make their submissions, then they could not be denied right to get themselves impleaded in the suit.
15. In reply, the learned Counsel for respondent No. 2 submitted that while considering the application for addition of parties, the Court has judicial discretion which has to be exercised having regard to the facts and circumstances of the case. In exercise of this discretion the Court can direct the plaintiff, though dominus litis, to implead a person as a necessary party defendant. He further contended that the trial Court having examined the issue from close angle and having held that the landlord was not a necessary and proper party, this Court should not direct the plaintiff to add the landlords as defendants in the suit. He sought to place reliance on the judgment of the Supreme Court in the case of Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay, ; wherein the Apex Court held that a person seeking impleadment in the suit must prove that he has direct or legal interest in the litigation. He further contended that in the alleged structure constructed by respondent No. 2, the applicants cannot have any interest as such their presence is not at all necessary before the trial Court.
FINDINGS
16. Reverting back to the facts of the present case on hand, it is clear that the notice issued by the Corporation dated 2nd January, 1995 refers to the unauthorised extension made by respondent No. 2 which is annexed to the demised premises. It has virtually become a part of the demised premises. The landlords have direct and substantial interest in the demised premises, the demolition of which, is sought by notice issued under section 351 by the Bombay Municipal Corporation. In the event of its demolition their rights are bound to be affected.
17. Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining the Corporation from demolishing the structure. In Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which were movable on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent No. 2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was not a matter which was to affect the legal rights of the landlord in that case. In the instant case, the landlords would be entitled to place all the facts before the trial Court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely.
CONCLUSION
18. In the result, impugned order is quashed and set aside. Revision application is allowed. Rule is made absolute in terms of prayer Clauses (a) and (b) with no order as to costs.
19. The respondent No. 2 (original plaintiff) is directed to add the names of present applicants as party defendants to the suit within 15 days from the date of receipt of writ from this Court. The trial Court thereafter shall proceed with the suit in accordance with law as expeditiously as possible, considering the nature of the suit and the rights of the parties involved therein.
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