ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6488 OF 2008 PETITION NO. 6488 OF 2008 PETITION NO. 6488 OF 2008 Esteem Properties Pvt. Ltd., A company incorporated under the Companies Act, 1956 having its Office at 210/211, Gundecha Chambers, Nagindas Master Road, Fort, Mumbai-400 001. ...Petitioners. (Orig.Plaintiffs) Vs. 1. The Municipal Corporation of Greater Mumbai, a Body Corporate Constituted under the Municipal Corporation Act, 1888 and having its Head Office at Mahapalika Bhuvan, Mahapalika Marg, Opp. C.S.T., Fort, Mumbai 400 001. 2. Shri Gupta Ram Rekha Ram Bakhash, Room No.14, Behind S.H.Compound, Near DTC Hotel, Saraswati Nagar, Sahar Road, Andheri (East), Mumbai. 3. Mrs. Anmoyan Tipanna Shikari @ Mrs. Anbhavna Tipanna Vadari, Room No.14, CTS No.229, Village Sahar, Sahar Airport Road, Andheri (East), Mumbai 400 091. 4. Tresorie Traders Private Limited A company registered under Companies Act, 1956 having its Registered office at Tulsi Kunj, 60-A, Linking Road, Santacruz (West), Mumbai 400 054. ...Respondents. (Nos.1 to 3- Orig. Defendants & No.4- Prop.Defendant & Orig. Applicant in C/S No.347 of 2008) ( 2 ) Mr.F. Devitre, Sr.Counsel with Mr.Chirag Bowara i/by Mr. Chitnis Vaithy & Co. for the Petitioners. Mr.Devis Khambatta, Sr.Counsel with Mr.C.U.Singh, Sr.Counsel for Respondent No.4. Mr.S.M.Sakhardande with Mr.N.M.Sakhardane for Respondent No.3. Mr.A.J.Bhor i/by Mr.A.K.Nandanwar for Respondent No.1. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 10th November, 2008. : 10th November, 2008. : 10th November, 2008. P.C.:- P.C.:- P.C.:- By consent, heard finally. 2. The Petitioners- Original Plaintiffs have challenged the order dated 12th September, 2008 passed by the City Civil Court of Bombay, Dindoshi Branch, Mumbai in Chamber Summons No. 347 of 2008 in L.C.Suit No.1177 of 2008 allowing the Application of Respondent No.4 to join as a Defendant in the suit. 3. As averred by the Petitioners, on 09/08/2007, the Petitioners being owner and having right on the said plot, made complaints to the concern office of the Assistant Municipal Commissioner, complaining about illegal encroachment on the said property. ( 3 ) 4. On 09/05/2008, pursuant to the complaint, Bombay Municipal Corporation (Respondent No.1 hereinabove) issued Notice under Section 55 of M.R.T.P.Act, 1966 (hereinafter referred to as "the said Act") to Respondent No.2 hereinabove as illegal and unauthorised structure on the suit property. Respondent No.2 was refused to accept the said Notice and, therefore, the same was pasted at site. Pursuant to the above Notice, Respondent No.2 had asked for extension of time and requested to Respondent No.1 not to demolish the structure, accordingly time was given to Respondent No.2 in respect thereof. 5. On 10/06/2008, second notice was issued by Respondent No.1 intimating Respondent No.2 pursuant to the request, time has been granted however, documents produced by Respondent No.2 do not prove the authenticity of the said structure. The said structure is unauthorized and liable to be demolished. 6. On 11/06/2008, Respondent No.1 came at the site and demolished the entire illegal structure on the ( 4 ) said plot. 7. On 21/06/2008, Respondent No.1 through Assistant Engineer (Building & Factory) K/East Ward Office, Andheri (E), gave a letter to Respondent No.3 and granted permission/ order of restoration of the said structure. 8. On 23/06/2008, in view of the above letter dated 21/06/2008, the Petitioners have filed a suit bearing L.C.Suit No.1187 of 2008 against Respondent Nos. 1 to 3 for reliefs of declaration and also ad-interim and interim reliefs. The City Civil Court at Bombay was pleased to stay the Notice dated 21/06/2008 issued by Respondent No.1 and directed the parties to maintain status quo. During the pendency of the above suit, Respondent No.4 made an application by way of Chamber Summons bearing Chamber Summons No.347 of 2008 for joining them as Defendants in the said suit. The Petitioners have filed their reply and opposed the said Chamber Summons. ( 5 ) 9. On 12/09/2008, after hearing from both the sides, the City Civil Court was pleased to allow the Chamber Summons of Respondent No.4 and directed the Petitioners to join Respondent No.4 as Defendant in the said suit. Hence, the present Petition. 10. The suit is for declaration that the notice dated 17th May, 2008 and action of demolition initiated by Respondent No.1- Municipal Corporation is lawfully improper and the order dated 21st June, 2008 passed by Assistant Engineer of Respondent No.1 is illegal, improper and liable to be revoked/ cancelled and thereby also prayed for interim order (injunction) to take any action pursuance to the order dated 21st June, 2008. The defendant includes their servants, agents, representatives or persons acting through or under them. 11. The subject matter of notice dated 17th May, 2008 is "unauthorized construction of residential premises admeasuring approximately 51’0" x 45’0" & ht. is avg.8’0" with M.S.Sheet sides & M.S.Sheets on top". 12. To the Chamber Summons No.347 of 2008 added ( 6 ) Respondent No.4 averred as under:- . "I say that Defendant No.3 sold and transferred the suit structure to the Applicant abovenamed by a Deed of Assignment dated 15th July, 2006 and pursuant thereto the Applicant is in use, occupation and enjoyment of the suit structure which was wrongly demolished by Defendant No.1. I say that the Applicant is now in use, occupation and enjoyment of the land beneath the demolished structure and is entitled to remain upon the same and access the same from Sahar Road by passing through the suit plot." 13. The Petitioners- Plaintiffs in reply to the said Chamber Summons, apart from others averred as under:- . "In the circumstances, I respectfully submit that even the Defendant No.3 has lost the right, title and interest in the said structure of 100 sq. ft. and the land beneath thereto and having ( 7 ) illegally sold and assigned her right in favour of the Applicant and having received the consideration in respect and having handed over possession thereto, the applicant cannot claim any right title and interest in favour of the Defendant No.3 in the said structure as well as the land beneath thereto." 14. There is a deed of assignment dated 15th July, 2006 whereby, Defendant No.3 sold and transferred the suit structure to the Applicant (added Respondent No.4). The deed of assignment is dated 15th July, 2006 which is admittedly prior to the date of filing of present suit i.e. 23rd June, 2008. The rights and interest, therefore, in the property, at this stage, appears to be in existence in favour of the Applicant- Respondent No.4. 15. The suit is pending for trial. The Chamber Summons, therefore, has taken out under Order 1 Rule 10 (2) of the Code of Civil Procedure (for short, "CPC") has been rightly allowed. ( 8 ) 16. The validity of such transfer and or the legality of document of deed of assignment need detailed enquiry and deliberation. Defendant No.3 is the party to the proceedings. Added Respondent No.4 is claiming through Defendant No.3. Therefore, for proper adjudication and to settle the issue in all respect with regard to the subject matter of the suit property, Applicant- Respondent No.3 is proper and necessary party to the suit proceedings. 17. The Apex Court in M/s. Aliji Monoji & Co. Vs. M/s. Aliji Monoji & Co. Vs. M/s. Aliji Monoji & Co. Vs. Lalji Lalji Lalji Mavji & Ors., (1996) 5 SCC 379, Mavji & Ors., (1996) 5 SCC 379, Mavji & Ors., (1996) 5 SCC 379, supports that the landlord who has right, title and interest in the property and would directly be affected is a proper party. Same view is expressed in Ramesh Hirachand Ramesh Hirachand Ramesh Hirachand Kundanmal Kundanmal Kundanmal Vs. Municipal Corporation of Greater Bombay Vs. Municipal Corporation of Greater Bombay Vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 Supreme Court Cases 524 Ors. (1992) 2 Supreme Court Cases 524 Ors. (1992) 2 Supreme Court Cases 524. The relevant paragraph is as under:- "14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The ( 9 ) person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may ( 10 ) lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon Vs. Raphael Tuck & Sons Lt., (1956) 1 All ER 273 wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. Vs. Bank of England (1950) 2 All ER 605, 611, that their true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: . "The test is "May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights." ( 11 ) 18. The reliance by the learned senior Counsel appearing for the Petitioners on Bharat Karsondas Bharat Karsondas Bharat Karsondas Thakkar Thakkar Thakkar Vs. M/s. Kiran Construction Co. & Ors. Vs. M/s. Kiran Construction Co. & Ors. Vs. M/s. Kiran Construction Co. & Ors. (Special (Special (Special Leave Petition (c) 2328/2007 dated 9/4/2008) Leave Petition (c) 2328/2007 dated 9/4/2008) Leave Petition (c) 2328/2007 dated 9/4/2008) is of no assistance as that was not the case of transfer of interest in the property based upon the deed of assignment, that was the case of the suit for specific performance. Here is a case of declaration to the action of Respondents of demolition/ reconstruction of the demolished premises in question which is the subject matter of the deed of assignment. The submission that addition of Respondent No.4 changes the nature of the suit, here, in view of above facts and the law, the person having interest, title in the property is necessary party for proper adjudication of the matter, apart from multiplicity of the proceedings. Added Respondent No.4 cannot be said to be, a third party or stranger to the litigation or, have no title interest in the property. 19. In view of above as there is no perversity and as the order is within the framework of law and the record, there is no case to interfere under Article 227 of the Constitution of India as the challenge is to the interlocutory order passed by the Courts below. ( 12 ) 20. The Petition is dismissed. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)