:1: 3224.11-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3224 OF 2011 Anand G. Wafalkar ..Petitioner Vs. Municipal Corporation of Greater Mumbai & Anr. ..Respondents Mr.Anil Singh i/b. Manoj P. Mhatre for Petitioner. Mr.M.M.Malvankar for BMC. Shri Anil Shah Respondent No.2 – in person. CORAM :­ B.R.GAVAI,J. DATE :­ APRIL 25, 2011 P.C. 1. By way of the present petition, the petitioner challenges the impugned order dated 28th February, 2011 vide which the learned Trial Judge has allowed the Chamber Summons filed by respondent No.2 herein for impleading him as party­defendant in the suit filed by the present petitioner. 2. Shri Singh, learned Counsel for the petitioner submits that respondent No.2 is neither a necessary nor a proper party. He submits that the suit in question is filed against the notice issued by the Mumbai Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act. He submits that in a suit, the party cannot be impleaded against the desire of the plaintiff. He placed reliance on the judgment of the Apex Court in the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay 1992(2)SCC 524 and M/s.Aliji Momonji & Co. Vs. Lalji Mavji & Ors. 1996 SCALE (5) 485. :2: 3224.11-wp 3. The jurisdiction under Order 1 Rule 10 of the Code of Civil Procedure is a discretionary jurisdiction. An interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India is permissible only if it is found that there is perversity in the jurisdiction exercised by the learned trial Court. The learned Trial Court, in paragraph No.16 of the impugned order, has specifically observed that respondent No.2 was a co­owner of CTS No.256 and 526. It has been found by the learned Trial Court, that though the evidence of the Plaintiff and the respondent Mumbai Municipal Corporation was recorded, the said evidence was not sufficient to enable the Court, to identify the location of the suit premises. The learned Trial Court, therefore, found that the presence of the present respondent No.2, who was co­owner of the suit property, would enable it to effectually decide the lis between the parties. One of the grounds for allowing the application under Order 1 Rule 10, is that the presence of such a party is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In that view of the matter, it cannot be said, that the discretion which has been exercised by the learned Trial Court has been exercised in perverse manner. 4. In so far as the judgment of the Apex Court in the case of Ramesh Hirachand Kundanmal (supra) is concerned, in the said case, notice in question, issued by the Municipal Corporation was only in relation to two chattels, which according to the plaintiff were movable on wheels and plates. It was, therefore, found that the party which was sought to be impleaded, had no concern with said chattels and as such not a necessary or proper party. In so far as second judgment in the case of is M/s.Aliji Momonji & Co. (supra) is concerned, the said judgment would rather support the case of respondent No.2, inasmuch as in the said judgment, the Apex Court found that in the event demolition is ordered, the landlord would be a person interested in development of the suit property and as such a proper party. :3: 3224.11-wp 5. No case is made out for interference. The petition is, therefore, rejected. 6. Period to carry out amendment as per the order of the Trial Court is extended by one week. (B.R.GAVAI, J.)