1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY WRIT PETITION NO.2438 OF 2010 Hemlata Sawant ...Petitioner vs. Municipal Corporation for Greater Mumbai ...Respondent And Chitranjan Nagar Vidya Co-operative Housing Society Ltd. ...Respondent Mr.Rajesh Singh for the petitioner Mr.R.A.Thorat for the respondent CORAM :A.S.OKA,J. DATE : APRIL 5, 2010 P.C.: 1 Heard the learned counsel for the petitioner. The petitioner is the original plaintiff. The petitioner has instituted a suit challenging the notice of demolition of the suit structure. The notice has been issued under section 55 of the Maharashtra Regional and Town Planning Act,1966 by the 1st respondent-Municipal Corporation. In the said suit, a Chamber Summons was taken out by the 2nd respondent-Co-operative Housing Society seeking a direction against the petitioner to implead the said society as a party defendant. By the impugned order, the said Chamber Summons has been made absolute on the ground that admittedly the property subject matter of the suit is the property of the second respondent-society and the petitioner is a member of the said society. 2 The objection of the learned counsel for the petitioner is to the authority of the person who 2 purported to file the Chamber Summons on behalf of the said society. His submission is that there is no resolution passed by the said society authorising the petitioner to file the Chamber Summons on behalf of the society. He submitted that in fact, the majority of the members have filed similar suits and the majority of the members are not in favour of the said society making an application for intervention. His submission in short is that, the Chamber Summons was not maintainable as it was not taken out by a person who is authorised to file the same on behalf of the said society. He submitted that the additional affidavit raising the contention was tendered before the trial Court and the same was taken on record, but the same has not been considered. He, therefore, submitted that the impugned order is illegal. The learned counsel for the 2nd respondent supported the impugned order and stated that the additional affidavit referred to by the learned counsel for the petitioner was sought to be tendered after the impugned order was passed. 3 I have considered the submissions. The challenge in the suit filed by the petitioner is to the notice issued under section 55 of the said Act of 1966 by which the first respondent called upon the petitioner to remove al- leged unauthorised construction of a room constructed with brick walls. In paragraph no.7 of the impugned or- der, the learned Judge has specifically observed that it is not in dispute that suit structure is a part and parcel of the property owned by the 2nd respondent-soci- ety. It is not in dispute that the 2nd respondent-society is the owner of the property of which the alleged offend- ing structure forms a part. It is also not in dispute that the petitioner is a member of the said society. As the challenge in the suit is to the action of demolition 3 of the structure forming part of the property admittedly owned by the 2nd respondent, in view of the law laid down by the Apex Court in case of Aliji Momonji & Co. vs. Lalji Mavji [(1996) 5 SCC 379], the said respondent has been rightly ordered to be impleaded as a party.In the said decision, the Apex Court held thus: 5. The controversy is no longer res integra. It is settled law by catena of decisions of this Court that where the presence of the respondent is neces- sary for complete and effectual adjudication of the dispute, though no relief is sought, he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dis- pute could be made and no relief granted. The ques- tion is whether the landlord is a necessary or prop- er party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and sub- stantial interest in the demised building before the demolition of which notice under Section 351 was is- sued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licensee would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the de- molition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Cor- poration from demolition of the building. Under 4 those circumstances, the question of the commercial interest would not arise. In Ramesh Hirachand Kundanmal case1 this Court had pointed out in para 18 of the judgement that the notice did not relate to the structure but to two chattels. Original less- ee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second respondent has no direct interest in the subject-matter of the litigation and the addi- tion thereof would result in causing serious preju- dice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled. It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant argu- ments to advance. The only reason which makes it ne- cessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal in- terest and commercial interest. It is not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary party when the witness has a commercial interest. This Court in New Redbank Tea Co. (P) Ltd. v. Kumkum Mittal2 has pointed out that Respond- 5 ent 11 who filed a suit for specific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under those circumstances, this Court had held that Respondent 11 was neither neces- sary nor proper party in the leasehold interest in- volved in the suit. In Union of India v. Distt. Judge3 the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under Order 1 Rule 10 CPC for determination of the compensation in respect of the acquired land. In Bihar SEB v. State of Bihar4 the same question was also reiterated and it was held that the Electricity Board was a person inter- ested and also a necessary party. In Anil Kumar Singh v. Shivnath Mishra similar question was answered holding that the respondent was a neces- sary party. (Emphasis added) Thus the second respondent being the owner of the property he is certainly a proper party in a suit challenging notice of demolition. Whether any application is made by any party or not, under Rule 10 of Order I of the Code of Civil Procedure,1908, the Court always possesses a power to add or delete the parties. In view of the decision of the Apex Court in case of Aliji Momonji (supra) the 2nd respondent is a proper party to the suit. 4 The effect of the impugned order is that the 2nd respondent-society who is admittedly the owner of the property will have to be impleaded as a party defendant. After amendment is carried out, it is obvious that the writ of summons will have to be served to the said 6 society. It is for the society to decide as to what stand should be taken while filing the written statement. After summons is served, if any person who is not authorised by the society purports to represent the society, the petitioner can always raise an objection at that stage. 5 In view of admitted status of the 2nd respondent as the owner, no fault can be found with the impugned order. The learned counsel for the petitioner at this stage during the course of dictation of this order submits that the petitioner is not accepting that the 2nd respondent- society is the owner of the property. A reference will have to be made to relevant part of paragraph 7 of the impugned order, which reads thus : 7 At the outset, I would like to point out that plaintiff is member of Chittaranjan Nagar Vidya Co-operative Housing Society Ltd. It is not in dispute that suit structure is part and parcel of the property of applicant-society. Plaintiff has made several averments against the society in the plaint... Thus, the learned Judge has recorded an admitted position that the suit structure is a part and parcel of the property of the 2nd respondent-society. If the statement recorded by the learned Judge in paragraph 7 was incorrect, it was the petitioner to approach the learned trial Judge with appropriate application. However, that was not done. Hence, the said contention cannot be accepted. 6 Subject to what is observed above, Writ Petition is rejected. 7 7 At this stage, the learned counsel for the petitioner seeks stay of impugned order as he wants to approach the higher Court. The said request cannot be accepted. However, the time to carry out amendment is extended by a period of four weeks from today. JUDGE