5. wp 4273-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4273 OF 2011 Mukesh M. Mehta .. Petitioner Vs Brihan Mumbai Municipal Corporation & Ors .. Respondents Mr. Vinay Sonpal i/b Mr. B.R. Vishwakarma for the Petitioner Mr. Mohan Raheja for Respondent No. 4 CORAM : D.G. KARNIK, J. DATE : 15th JUNE, 2011. P.C.: 1. Heard. 2. The petitioner is a partner of M/s. Paras Construction Co. who is the builder and promoter of the building known as 'Silver Court" constructed on the land bearing C.T.S. No. 4207 to 4239 of Village Kirol, Ghatkopar. The building is 13 storied building excluding the stilt floor. The petitioner is in occupation of 12th and 13th floor. Respondent no. 4 is a society formed by the occupiers of "Silver Court". 3. On 19th March 2010, respondent no. 1 - Bombay Municipal Corporation (BMC) issued a notice to respondent no. 4 - Society, its office bearers as well as to the petitioner who is a partner of the promoter firm to restore the stilt car parking 1 5. wp 4273-11.doc space to its sanctioned use in accordance with the sanctioned building plans, to restore the entrance lobby to its original status and to restore the space approved for lift to its original status. On 25th March 2010, respondent no. 1 - BMC issued another notice to respondent no. 4 - society, its office bearers and to the petitioner to restore the residential premises on the 12th and 13th floor to its original status and use as per the sanctioned building plans approved by the BMC. Aggrieved by the two notices, the petitioner filed a suit, bearing L.C. Suit No. 999 of 2010, in the City Civil Court at Bombay for declaration that two notices mentioned above were unsustainable in law and not enforceable and for quashing them as also for an injunction restraining respondent no. 1 - BMC and its officers from enforcing them. Respondent no. 4 - society was not joined as a party to the suit though it was one of the addressees of the impugned notices. Respondent no. 4 - society thereafter moved the trial Court by a Chamber Summons for joining it as a party to the suit. By order dated 25th April 2011, the Chamber Summons was allowed. That order is impugned in the present petition. 4. Learned counsel for the petitioner submitted that respondent no. 4 is not a necessary party to the suit and therefore, the trial Court erred in joining it as a party to the suit. In support of his submissions, he has referred and relied upon a decision of the 2 5. wp 4273-11.doc Supreme Court in case of Ramesh H. Kundanmal Vs Municipal Corporation, Greater Mumbai, 1992(2) SCC 524. 5. Order I, Rule 10 of the Code of Civil Procedure, (for short, "the Code") empowers the Court to add any person as a party to the suit. Sub-rule 2 of Order I, Rule 10 of the Code empowers the Court to add the name of the any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. A person can, therefore, be added as a party to the suit if the Court comes to the conclusion; (i) that he is a necessary part to the suit or, (ii) if the Court feels that his presence would enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. 6. In my view, in the present case, presence of respondent no. 4 - Society would certainly enable the Court to effectively decide all the matters in controversy before it, for the reasons indicated below:- 7. In the present case, the first notice has been issued by the BMC on the ground that the car parking space was being misused 3 5. wp 4273-11.doc and not being used as per the sanctioned plan. Similar is the case in respect of entrance lobby space and lift space at stilt level. The second notice has been issued on the ground that the premises on the 12th and 13th floor are also not being used for the purpose for which they are required to be used as per the plan approved by respondent no. 1 - BMC. The main controversy between the parties is whether there has been any violation of the building plans and / or conditions of use imposed at the time of sanctioning of the building plans. Respondent no. 4 is a Co-operative Society of the occupiers of the building. Its presence would certainly help the Court in arriving at a proper conclusion as to the present use and present state of affairs of the stilt floor and the flats in the building. Therefore, its presence would assist and help the Court in coming to the proper conclusions in deciding all the questions involved in the suit. In my view, respondent no.4 - Society would certainly be a proper party, if not a necessary party. 8. It may also be noted that respondent no. 4 - Society is the addressee no. 1 in the above two notices. The allegations of misuse of the lobby as well as 12th and 13th floor not only relate to the alleged misuse by the present petitioner but also misuse which may have been made or connived at by the respondent no. 4 - Society. Hence also, the presence of the 4 5. wp 4273-11.doc respondent no. 4 would help and assist the Court in deciding whether the notices in which respondent no. 4 is a first addressee, are legal and proper. For this reason also, respondent no. 4 would be a proper party. 9. The decision in case of Ramesh H. Kundanmal (Supra), in my view, is of no assistance to the petitioner. After referring to the arguments of the parties in paragraphs 4 to 6 of the decision, in paragraph 8, the Supreme Court has held that the Court is empowered to join a person whose presence is necessary for the prescribed purpose and direct the addition of the person whose presence is necessary for that purpose. Thus, while considering whether a person who is not a necessary party should be added as a party, the Court is required to consider whether his presence would be necessary or helpful to enable the Court to adjudicate completely all the questions involved in the suit. As I am of the view that presence of respondent no. 4 - society would help the Court in deciding the controversy between the parties, in my view, the trial Court committed no error in impleading respondent no. 4 as a party to the suit. The Writ Petition is accordingly rejected summarily. 10.Time to carry out the amendment by addition of a party, however, is extended by two weeks. [ D.G. KARNIK, J ] 5 5. wp 4273-11.doc 6