1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1450 OF 2009 Himmat Khara. ..Petitioner. V/s. The Municipal Corporation of Gr.Bombay & Ors. ..Respondents. Mr.G.S.Godbole i/b. Mr.Yatin R. Shah for petitioner. Mr.Vinod Mehendale for BMC. Mr.Yadunath Choudhari for Respondent No.3. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 26, 2009. DATE : FEBRUARY 26, 2009. DATE : FEBRUARY 26, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Mehendale waives notice for Respondent-BMC. Mr.Choudhari waives notice for Respondent No.3. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 2 5. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the City Civil Court, Bombay dated 16th September, 2008 in Chamber Summons No.663 of 2007. By the said order, the lower Court has allowed the request of the Respondent No.3, to be added as party Defendant to the suit filed by the Plaintiff challenging the show cause notice issued by the Corporation regarding unauthorised construction. The Court below has noted that the record would indicate that the applicant was residing alongwith Freny as her family member in the suit property, from whom the Plaintiff acquired the premises. Once the Plaintiff has acquired premises from Freny, it logically follows that the Applicant was not staying in the suit property any more and that the Plaintiff alone is in possession of the suit property. If it is so, the question of applicant being added as party to the suit does not arise, for the applicant is neither owner of the suit property nor found to be in occupation thereof so as to hold that the applicant is necessary much less proper party to the suit instituted by the Plaintiff. 6. Counsel for the Respondent No.3 however invited my attention to the averments in the 3 affidavit to contend that the Respondent No.3/applicant is occupying portion of the suit property and the Plaintiff was in possession of only portion of the suit property, who had entered therein as trespasser. 7. On fair reading of the affidavit, it is not possible to discern that the Applicant/Respondent No.3 continues to be in possession of any part of the suit property as of now. Unless that position is clearly stated, the question of assuming that the applicant is in possession of the portion of the suit property does not arise. The Applicant will have to clearly state that position and substantiate that fact, consequent to which the Court may consider request of the Applicant for impleading as party defendant to the suit appropriately. I am not expressing any opinion in that behalf. 8. Suffice it to observe that on the basis of averments in the affidavit as filed in support of the Chamber Summons, position regarding factum of possession of the applicant of portion of the suit property is vague. Unless that fact is clearly asserted and substantiated, the question of entertaining request of the applicant for being 4 joined as party defendant does not arise. 9. Accordingly, the impugned Judgment and Order is set aside. Instead, the Chamber Summons is restored to the file of the Trial Court for being reconsidered after the applicant/Respondent No.3 files further affidavit giving proper particulars and details about the nature of his right in the suit property. Dependent on the finding to be reached in relation to those facts, appropriate order may be passed in accordance with the law in the restored Chamber Summons. All questions in that behalf are left open. 10. It will be open to the Petitioner to file reply to the further affidavit filed by the Applicant/Respondent No.3 in support of the Chamber Summons in terms of the liberty granted in this order. 11. It is once again made clear that all questions are left open, to be considered on its own merit, uninfluenced by any observation made in the impugned Judgment. 12. Parties to appear before the Trial Court on 5 16th March, 2009 when the Trial Court may indicate convenient date for hearing of the Chamber Summons and fix time to enable the parties to file their respective affidavit, if they so desire, while ensuring that the Chamber Summons is disposed of not later than 30th April, 2009. 13. While parting I would wish to place on record that the Chamber Summons has been restored by this Court for the second time and it is expected that the Trial Court will examine the matter afresh with great care, so that no flaw is left in consideration of the prayer for impleadment of the applicant as defendant in the pending suit. It is on account of this Chamber Summons the suit cannot proceed and the Plaintiff is enjoying the interim relief, which fact cannot be overlooked. 14. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)