Case: Mohamed Hussain Gulam Ali Shariffi Vs. Municipal Corporation of Greater Bombay & Others

Abhay Manohar Sapre, J. Leave granted. 2. This appeal is filed against the final judgment and order dated 16.11.2016 passed by the High Court of Judicature at Bombay in Writ Petition No. 11707 of 2014 whereby the High Court dismissed the writ petition filed by the appellant herein. 3. Facts of the case lie in a narrow compass so are the issue involved in the appeal, a short one. It would, however, be clear from the facts mentioned infra. 4. The appellant is the plaintiff whereas respondent No. 1 is defendant No. 1 and respondent Nos. 2 and 3 are sought to be added as defendant Nos. 2 and 3 at their instance in the suit filed by the appellant against respondent No.1. 5. The appellant has filed a suit against respondent No. 1 wherein the challenge is essentially to the notice dated 17.05.2013 issued by respondent No. 1 (Municipal Corporation of Greater Bombay) under Section 351 of the Mumbai Municipal Corporation Act, 1888 (for short the Act). In the notice impugned in the suit, the main grievance of respondent No. 1 is that the plaintiff has made some unauthorized construction in the building in question known as Haroon Manzil, Ground Floor, 354 S.V.Patel Road, Mumbai (hereinafter referred to as Suit house). 6. Challenging the legality of the notice dated 17.05.2013, the appellant had initially filed a writ petition in the High Court. However, it was withdrawn with a liberty to file the Civil Suit. 7. Accordingly, the appellant filed a Suit in the Bombay City Civil Court, Greater Mumbai challenging the notice dated 17.05.2013 issued under Section 351 of the Act as also letter dated 20.06.2013. The appellant also prayed for injunction restraining respondent No.1 (defendant No.1) from acting upon the notice dated 17.05.2013 and letter dated 20.06.2013. During the pendency of the suit, respondent Nos. 2 and 3 filed an application (Chamber Summons No. 1353 of 2014) seeking permission to implead them as defendants in the suit. It was, inter alia, alleged that respondent Nos. 2 and 3 have an interest in the suit house inasmuch as they claimed to have an ownership rights in the suit house. It was also alleged that one Civil Suit No. 424/2008 seeking specific performance of agreement is filed by respondent Nos. 2 and 3 in relation to the suit house and the same is pending. It was thus prayed that they (respondent Nos. 2 and 3) being necessary parties for proper adjudication of the rights of the parties in relation to the suit house be allowed to become defendants in the suit in question. 8. The appellant as the plaintiff opposed the aforesaid application (Chamber Summons No. 1353/2014) made by respondent Nos. 2 and 3 contending, inter alia, that the application is wholly misconceived and hence liable to be dismissed. It was contended that respondent Nos. 2 and 3 are neither necessary nor proper parties to the suit filed by the appellant whereas the only necessary party to the suit is respondent No.1 for proper adjudication of the dispute for which the suit is filed against respondent No.1. 9. The Trial Court, by order dated 16.10.2014 allowed the application (Chamber Summons No. 1353/2014) filed by respondent Nos. 2 and 3 and permitted them to become party-defendants in the suit. The Trial Court held that respondent Nos. 2 and 3 are proper parties, if not necessary, in the suit. 10. The appellant, felt aggrieved by this order, filed writ petition before the High Court. By impugned order dated 16.11.2016, the High Court dismissed the appellants writ petition giving rise to filing of this appeal by way of special leave petition against the impugned order of the High Court. 11. Heard Mr. Shyam Divan, learned senior counsel for the appellant and Ms. Firdaus Moosa, learned counsel for respondent Nos. 2 & 3. 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and set aside the impugned order. 13. In our considered opinion, having regard to the nature of the controversy, which is the subject matter of the suit, respondent Nos. 2 and 3 are neither necessary nor proper parties. As would be clear from mere perusal of the plaint, the basic question, which is required to be decided in the suit, is whether notice issued under Section 351 of the Act by respondent No. 1 (Corporation) to the appellant is legally valid or not (see prayer(a) in the plaint - page 251 of Volume II of S.L.P.Paper Book). 14. To decide this question, in our considered opinion, the only necessary and proper party to the suit is the Mumbai Municipal Corporation, Greater Mumbai, i.e., Respondent no 1, who has issued such notice, and for deciding this question either way, the presence of respondent Nos. 2 and 3 is not at all required. In other words, the suit can be decided even in the absence of respondent Nos. 2 and 3. 15. It is a settled principle of law, which does not need any authority to support the principle, that the plaintiff being a dominus litis cannot be forced to add any person as party to his suit unless it is held keeping in view the pleadings and the relief claimed therein that a person sought to be added as party is a necessary party and without his presence neither the suit can proceed and nor the relief can be granted. It is only then such person can be allowed to become party, else the suit will have to be dismissed for non-impleadment of such necessary party. Such does not appear to be a case here. 16. We do not find that the presence of respondent Nos. 2 and 3 in the facts of this case is required for deciding the legality of notice impugned in the suit on merits because the dispute centers around the question of legality and validity of the notice which, as mentioned above, arises between respondent No.1, who has issued the notice, and the person to whom it is given, i.e., appellant. 17. In the suit in question, the Court is not called upon to adjudicate the rights between the appellant and respondents Nos. 2 and 3 in relation to the suit house. Any such dispute, if arises, the same can be decided in the separate suit, which is pending between the parties or may be filed, if required, by the parties against each other but such dispute cannot be tried on the cause of action pleaded in the present suit by the appellant where the lis is essentially between the appellant (plaintiff) and respondent No. 1. Merely because the suit house is the subject matter between all the parties is no ground to get the dispute arising between the parties settled in one suit regardless of the nature of cause of action on which the suit is founded. 18. We cannot, therefore, agree with the reasoning of the two Courts that since respondent Nos. 2 and 3 are proper parties (though not necessary) to the suit and, therefore, they should be arrayed as party-defendants.

Decision:
1[ds]13. In our considered opinion, having regard to the nature of the controversy, which is the subject matter of the suit, respondent Nos. 2 and 3 are neither necessary nor proper parties. As would be clear from mere perusal of the plaint, the basic question, which is required to be decided in the suit, is whether notice issued under Section 351 of the Act by respondent No. 1 (Corporation) to the appellant is legally valid or not (see prayer(a) in the plaintpage 251 of Volume II of S.L.P.Paper Book)14. To decide this question, in our considered opinion, the only necessary and proper party to the suit is the Mumbai Municipal Corporation, Greater Mumbai, i.e., Respondent no 1, who has issued such notice, and for deciding this question either way, the presence of respondent Nos. 2 and 3 is not at all required. In other words, the suit can be decided even in the absence of respondent Nos. 2 and 315. It is a settled principle of law, which does not need any authority to support the principle, that the plaintiff being a dominus litis cannot be forced to add any person as party to his suit unless it is held keeping in view the pleadings and the relief claimed therein that a person sought to be added as party is a necessary party and without his presence neither the suit can proceed and nor the relief can be granted. It is only then such person can be allowed to become party, else the suit will have to be dismissed fort of such necessary party. Such does not appear to be a case here16. We do not find that the presence of respondent Nos. 2 and 3 in the facts of this case is required for deciding the legality of notice impugned in the suit on merits because the dispute centers around the question of legality and validity of the notice which, as mentioned above, arises between respondent No.1, who has issued the notice, and the person to whom it is given, i.e., appellant17. In the suit in question, the Court is not called upon to adjudicate the rights between the appellant and respondents Nos. 2 and 3 in relation to the suit house. Any such dispute, if arises, the same can be decided in the separate suit, which is pending between the parties or may be filed, if required, by the parties against each other but such dispute cannot be tried on the cause of action pleaded in the present suit by the appellant where the lis is essentially between the appellant (plaintiff) and respondent No. 1. Merely because the suit house is the subject matter between all the parties is no ground to get the dispute arising between the parties settled in one suit regardless of the nature of cause of action on which the suit is founded18. We cannot, therefore, agree with the reasoning of the two Courts that since respondent Nos. 2 and 3 are proper parties (though not necessary) to the suit and, therefore, they should be arrayed as