KBP 6840-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6840 OF 2009 IN CHAMBER SUMMONS NO.337 OF 2008 Ramesh Devji Bhatti ..Petitioner Vs. Bombay Municipal Corporation and ors. ..Respondents ......... Mr.Manoj Kumar Upadhay, for petitioner. Mr.S.J.Chaursia i/b.M/s.Ashoka Law Firm for respondent no.3. Mr.Vinod Mahadik, for respondent no.1 – BMC. Ms.Aparna Vhatkar, AGP for respondent no.2-State. ......... CORAM : A.S.OKA, J. DATE : 15 th SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioner. 2] The petitioner by filing a suit claimed that he was in possession of the suit room more particularly described in paragraph 1 of the plaint and he was a tenant of one Abdul Razak Batatawala. The case of the petitioner is that his predecessor in KBP 6840-09.sxw 2 title Natwarlal was the tenant in respect of the suit room and the petitioner acquired the suit room from Natwarlal by an agreement for sale. It is stated that on the basis of the said agreement, the landlord transferred the suit room in favour of the petitioner. It is stated in the plaint that the suit room was acquired for a project undertaken by the Municipal Corporation. It is stated in the plaint that the Municipal Corporation (first defendant) had given assurance that the petitioner will be given alternate accommodation. The grievance in the suit is that notwithstanding the rights claimed by the petitioner, a letter dated 5 th February, 2005 was issued by the authorities by which they purported to allot the alternate accommodation in the name of Natwarlal and Taraben. The case in the suit is that on the basis of the said letter of allotment, the authorities are likely to allot a permanent accommodation to the allottees mentioned therein (Natwarlal and Taraben). The substantive relief claimed in the suit is of declaration that the letter dated 5 th February, 2005 is bad in law, null and void and cannot be acted upon. The second prayer is for injunction restraining the defendants (the Municipal Corporation, the State of Maharashtra and the Deputy Collector) from acting upon or implementing the said letter dated 5 th February, 2005. KBP 6840-09.sxw 3 3] The third respondent (Taramati) filed a chamber summons for impleading herself as party defendant to the suit by invoking sub-Rule 2 of Rule 10 of Order 1 of the Code of Civil Procedure, 1908. The said Taramati is the widow of the said Natwarlal. By the impugned order, the said chamber summons has been allowed. 4] The learned counsel appearing for the petitioners submitted that by virtue of agreement for sale dated 5 th May, 1998 the said Natwarlal transferred his right, title and interest in favour of petitioner and therefore said Natwarlal had no subsisting right in respect of the suit room. He submitted that in view of the decision of the Apex Court in the case of Amit Kumar Shaw and another Vs. Farida Khatoon and another [2005(3)Mh.L.J. 330] the trial should not have allowed the chamber summons in as much as the said Natwarlal had no subsisting right. He also placed reliance on a decision of this Court in the case of Atul Dhirajlal Gohil and ors. Vs. Municipal Corporation of Gr. Mumbai and anr [in Writ Petition No. 626 of 2009]. 5] I have considered the submissions. The letter dated 5 th February, 2005 which is challenged in the suit purports to allot a permanent accommodation in lieu of suit room to Natwarlal and Smt.Taramati - third respondent (widow of Natwarlal). If the relief KBP 6840-09.sxw 4 prayed for in the plaint is granted, the authorities will be precluded from allotting permanent accommodation to the said third respondent on the basis of the said letter. It will be necessary to refer to what is held by the Apex Court in the case of Amit Kumar Shah (Supra) in paragraph 10 thereto:- 10.The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.” 6] Therefore, if a decree is passed in the suit the rights of the third respondent will be directly affected. The petitioner is claiming on the basis of the agreement for sale executed by Natwarlal. The said agreement for sale will have to be proved and the petitioner will have to establish that in view of the said agreement, the said Natwarlal had no subsisting right, title and interest. It is obvious that the third respondent will be directly affected if a decree is KBP 6840-09.sxw 5 passed in the suit in favour of the Petitioner. As far as the decision of this Court in the case of Atul (Supra) is concerned, it must be stated that the second respondent before this court claimed to be the landlord of the premises and the challenge in the suit filed by the petitioners was to a notice of demolition issued by the Mumbai Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act, 1888. The observations made by this Court in the said case are in the context of the fact situation in the case before it. Therefore, the said decision will not have any application to the facts of the present case. As the third respondent will be directly affected by the decree which may passed in the suit, the trial Court was justified in directing the petitioner to implead the third party as a party defendant. 7] Therefore, no case for interference is made out. The Writ Petition is rejected. It is made clear that no adjudication has been made by this Court with regard to the rights of the petitioner as well as the third party. ( A.S.OKA, J. )