1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6360 OF 2008 Elite Diagnostic Centre Pvt. Ltd. ...Petitioner. Vs. Indrajeet Singh Balwant Singh Bhatia & Anr. ...Respondents. .... Mr. R.K. Desai i/b. Mr. A.M. Chhabria for the Petitioner. Mr. Simil Purohit with Ms. Sandhya Tolat i/b. M/s.Vimadalal & Co. for Respondent No.1. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 18, 2008. P.C. Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the First Respondent waives service. By consent of Counsel and at their request taken up for hearing and final disposal. 2. The challenge in these proceedings under Article 227 of the Constitution of India, is to the correctness of an order passed by the City Civil Court, on 7th August 2008, dismissing the Chamber 2 Summons taken out by the Petitioner, seeking impleadment under Order 1 Rule 10 of the Code of Civil Procedure, 1908. 3. The First Respondent is the original Plaintiff to the suit instituted before the City Civil Court, (L.C. Suit No.481 of 2005). The Municipal Corporation issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, on 17th December 2003 in respect of an unauthorized construction of a mezzanine floor carried out by the First Respondent in the suit premises. An order was passed by the Assistant Municipal Commissioner, on 15th January 2005, directing the demolition of the unauthorised construction. The notice and the order passed by the Assistant Municipal Commissioner, have been impugned in the suit before the City Civil Court. The Petitioner herein, took out a Chamber Summons for impleadment. In the affidavit in support of the Chamber Summons, it was stated that the building – Krishna Kunj, was originally owned by Nayan Construction Company Private Limited, from whom the Petitioner purchased the building. Reliance has been placed on the City Survey record in the Index-II Extract issued by the concerned 3 authority. In support of the Chamber Summons, after the reply was filed by the original Plaintiff, a rejoinder was filed by the Petitioner in which it has been stated inter alia that the unauthorised construction which has been carried out by the First Respondent is not in accordance with the sanctioned plans for the building and was not in existence prior to the datum line of 1962. The allegation of the Petitioner is that the First Respondent has tampered with the foundation, supporting beams and walls of the ground floor suit premises with a view to increase the height of the mezzanine floor. It has also been alleged that the First Respondent has dug the foundation of premises for increasing the height of the mezzanine floor and that the said construction which has been carried out is a nuisance and danger to the residents of the building. The Petitioner has annexed at Exhibit-I to the rejoinder, a copy of the property card reflecting his name as the owner of the building, at Exhibit-II copies of demand notices and receipts issued by the revenue authorities and at Exhibit-III copies of the Municipal Assessment Bills. 4. The Learned Trial Judge dismissed the application for 4 impleadment holding that the Advocate appearing on behalf of the Petitioner was not able to point out how the Petitioner would be affected by the unauthorised construction which has been carried out by the First Respondent. The Learned Trial Judge observed that from the material on record, it did not appear that the property of the Petitioner was in danger. The Court observed that though the Petitioner may be owner of the building, his rights would not be affected in any way and that the Municipal Corporation had already taken action in respect of the unauthorised construction. 5. Counsel appearing on behalf of the Petitioner assailed the reasoning of the Learned Trial Judge. Reliance has been placed on the judgment of the Supreme Court in Aliji Momonji & Co. vs. Lalji Mavji, (1996) 5 SCC 379. The Learned Counsel urged that the Petitioner as the owner of the building is vitally interested in the subject matter of the litigation and that he is directly or legally interested in the action since the outcome of the litigation may lead to a result which would affect his legal rights. On the other hand, Counsel appearing on behalf of the First Respondent, the original 5 Plaintiff, stated that the Petitioner has no interest in the unit which has been purchased by the First Respondent and that the interest of the Petitioner would not be affected by the subject matter of the litigation. Learned Counsel submitted that the Plaintiff is dominus litis and that consequently it was for the Plaintiff to decide who should be impleaded as parties to the suit. 6. In Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay, (1992) SCC 524, the Supreme Court observed that under Order 1 Rule 10 of the Code of Civil Procedure, 1908, a person does not become a necessary party to the suit merely because he has relevant evidence to give on some of the questions involved or because he has an interest in the correct solution of some of the questions involved. The Supreme Court held that before a person is impleaded as a necessary party, that person must be found to have a direct or legal interest in the action. That is to say, the litigation may lead to a result which may affect him legally by curtailing his legal rights. In Aliji Momonji' s case (supra), the Supreme Court observed that the landlord has a direct and substantial interest in the demised building for the demolition of which 6 notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 was issued. This judgment was followed by a Learned Single Judge of this Court (Smt.Ranjana Desai, J.) in Milind Dattatraya Sugavkar vs. Municipal Corporation of Greater Mumbai, 2006(1) ALL MR 488. 7. Having regard to the well settled position in law, the order which has been passed by the Learned Trial Judge would have to be held to be unsustainable. The Learned Trial Judge in the course of the impugned order dwelt on the question as to whether on merits the property of the Petitioner would be endangered by the unauthorised construction which has been carried out by the First Respondent. The present stage cannot be regarded as the appropriate stage at which a final determination to that effect could have been made. At this stage what is relevant is that the Petitioner claimed to be the owner of the building. The Petitioner both in the affidavit in support and in the rejoinder which has been filed before the Trial Court, has furnished sufficient grounds that would lead the Court to the conclusion that the Petitioner is a necessary party to the proceedings. According to the Petitioner, the unauthorised construction which has 7 been carried out will vitally affect the structural stability of the building and is a source of nuisance and danger to the residents. In such a situation, having regard to the law laid down by the Supreme Court in Aliji Momonji, it has to be held that the impleadment of the Petitioner was in order as a necessary party under Order 1 Rule 10. The order which has been passed by the Learned Trial Judge ought to be and is accordingly, set aside. The petition is allowed. Rule is made absolute in terms of prayer clause (a). The Chamber Summons taken out by the Petitioner (Chamber Summons 272 of 2007) shall in consequence stand absolute in terms of prayer clause (a) and the Petitioner shall be impleaded as a Defendant to the suit. Consequential amendments shall be carried out within a period of two weeks from today. Before disposing of the petition, it is clarified that all the observations contained in this order are confined only to the disposal of the application for impleadment and shall not be construed as any expression of opinion on the merits of the rival contentions of the parties. There shall be no order as to costs. ..... 8