1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2326 OF 2009 IN FIRST APPEAL (ST) NO. 12996 OF 2009 Lydia Co-op. Housing Society Ltd. ... Applicant v/s Shri Dayabhai Shambhu Gala & ors. ... Respondents Municipal Corpn. Of Gr. Mumbai ... Respondent Mr.Bharat Joshi for the applicant. Mr.R.M.Haridas for the respondent Nos.1 to 3. Nobody present for respondent No.4 B.M.C. CORAM: SMT.NISHITA MHATRE, J. DATED: 14TH AUGUST, 2009 P.C.: 1. The present civil application has been filed for leave to file an appeal impugning the judgment and decree dated 26.2.2009 in the B.C.C.C. Suit No. 2885 of 2002. According to the applicant, it was a necessary party to the suit filed by the respondents against the Municipal Corporation in respect of a 2 notice issued under Section 354-A of the Mumbai Municipal Corporation Act. It appears that an application was made by the applicant to the City Civil Court for intervention in that suit and that application was dismissed. Being aggrieved by the order, a writ petition was thereafter filed by the applicant society. The writ petition was dismissed. 2. The learned advocate for the applicant submits that the Housing Society is a necessary party and it ought to have been heard when the suit was decided since the respondents have encroached upon the open space of the society. It is in these circumstances that the Society is seeking leave to appeal against the judgment and order passed by the City Civil Court. 3. In my opinion, once the writ petition of the society has been dismissed, albeit for the reason that it had become infructuous in view of the suit having been decreed, the applicant society will not have a right to contend that it is a necessary party unless the order passed by the City Civil Court refusing it permission to intervene in the matter is set aside. The main contention of the applicant 3 appears to be that, unless the society is heard in the appeal filed against the decree passed by the City Civil Court, appropriate orders will not be passed by this Court as in all probability the Municipal Corporation would not be able to assist the Court effectively. 4. In my opinion, the civil application cannot be granted since the applicant has not made out any case for leave to appeal. If the applicant has any grievance against the reconstruction of the property as permitted by the City Civil Court, it must adopt other appropriate remedies. Admittedly, the Society has already initiated proceedings against the respondents in the Co-operative Court. 5. The learned advocate for the applicant submits that since the encroachment was on the open space of the applicant’s property, it was in fact a necessary party before the City Civil Court and therefore the Co-operative Housing Society ought to have been heard. This submission is based on the judgment of this Court in the case of Chandrakant Dharma Bhonu v/s Pandurang Ramchandra Dandekar & anr., reported in 4 A.I.R. 2004 Bombay 374. As stated earlier, when the writ petition itself is dismissed against the order dismissing the application for being joined as a necessary party to the appeal, leave to appeal against the decree passed by the City Civil Court cannot be granted. 6. Another judgment relied on by the learned advocate for the applicant is in the case of M/s.Aliji Monoji & Co. v/s Lalji Mavji & ors., reported in A.I.R. 1997 SC 64. The Supreme Court has observed that the landlord is a proper party to the suit for perpetual injunction filed against the Municipal Corporation restraining it from demolishing the demised buildings on the ground of unauthorized construction, though no relief is sought against him. The Supreme Court has held that since the demolition would undoubtedly materially affect the right, title and interest of the landlord, he is a necessary and proper party when relief is claimed against the Municipal Corporation for perpetual injunction restraining the Corporation from demolishing the building. 5 7. In my opinion, the facts in the present case cannot be equated to those in the cases before the Supreme Court in the aforesaid judgments. The very fact that the order passed by the City Civil Court refusing permission to the applicant to intervene in the suit, has not been set aside, it disentitles the applicant from preferring the present application for leave to appeal against the decree. 8. Civil application dismissed. ..... 6