MP 1 WP3059_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3059 OF 2011 M/s. Shreeji Industrial Premises Co-op. Society Ltd. ... Petitioners Versus Municipal Corporation of Greater Mumbai and others ... Respondents Mr. Ashok M. Saraogi for Petitioners. Mr. M. M. Malvankar for BMC. Mrs. Priti Shah for Respondent No. 3. CORAM : B.R. GAVAI, J. TUESDAY, APRIL 26, 2011 P. C. : By way of present petition, the petitioners challenge the order dated 24th March 2011 in Chamber Summons No. 682 of 2010 taken out in Long Cause Suit No. 2347 of 2010 vide which the Chamber Summons filed by the respondent No. 3 herein for impleading it as a party respondent in the suit filed by the present petitioners is allowed. 2. The petitioners have filed a suit against the respondent Nos. 1 and 2 praying for a relief that the structure of the members of the plaintiff’s society, which has been allotted by the respondent No. 2, should not be demolished without following due process of law. It is the contention of the petitioner that in the industrial plot developed by respondent No. 2, the members of the petitioner’s society have purchased various galas. The proceedings arising out of ad-interim and interim orders and regarding grant of injunction have reached upto this court. However, the reference to the same would not be necessary for adjudication of the present petition. MP 2 WP3059_11 3. In the said suit, a chamber summons came to be filed by the respondent No. 3 herein claiming therein that under an agreement entered into by the respondent No. 3 with respondent No. 2, the rights for development have been given in favour of the respondent No. 3. It is further the case of the respondent No. 3 that the right to use an additional FSI has also been given in favour of the respondent No. 3. The said chamber summons was resisted by the present petitioners. Vide the impugned order, the same is allowed. Being aggrieved thereby, the present petition. 4. Mr. Saraogi, the learned Counsel appearing on behalf of petitioners submits that the presence of respondent No. 3 is not at all necessary in a suit filed by the present petitioners. He submits that the limited relief claimed in the suit is that the structure of the members of the petitioner should not be demolished without following due process of law. He submits that, at the most, the respondent No. 3 would step in the shoes of respondent No. 2, and as such, the presence of the respondent No. 3 would not, at all, be necessary for deciding the present suit. Mr. Saraogi further submits that since the action is being taken by the respondent No. 1 at the behest of respondent No. 3, he may have an independent right, which can be adjudicated in an appropriate proceedings, if so filed by the respondent No. 3. He submits that such an issue, however, cannot be permitted to be raised in the suit filed by the present petitioner. 5. Mr. Saraogi further submits that the impleadment of the respondent No. 3 would act as an admission on behalf of the plaintiffs regarding the rights of the respondent No. 3 to develop the property. MP 3 WP3059_11 6. The jurisdiction under Order 1, Rule 10 of the Code of Civil Procedure is a discretionary jurisdiction. Unless it is found that the jurisdiction exercised by the learned Trial Court has been exercised in a perverse manner, it will not be permissible for this court to interfere with the same in the extra-ordinary jurisdiction under Article 226 of the Constitution of India. Under the said provisions, the court is also empowered to permit a party to be added if the court finds that for the complete and effective determination of lis, the presence of such a party is necessary or desirable. In the facts of the present case, the respondent No. 3 may not be a necessary party but by no stretch of imagination, it can be said that respondent No. 3 is not even a proper party. According to the petitioners, the contemplated action of the respondent No. 1 is at the behest of the respondent No. 3. If it is the case of the petitioners themselves that the corporation is acting at the behest of respondent No. 3 then in my considered view, the presence of respondent No. 3 would be appropriate to decide the lis pending before the learned Trial Court. In any event, the respondent No. 3 would be concerned with the final outcome of the suit. The learned Trial Court has referred to the development agreement entered into between the respondent Nos. 2 and 3. In the event, the suit of the present petitioners fails, it will be the respondent No. 3 who would be entitled to develop the suit property. 7. Insofar as the apprehension of the learned Counsel for the petitioners regarding the impugned order operating as an admission of the rights of the respondent No. 3 to develop the property is concerned, the said apprehension is totally ill-founded. What was an issue before the Court was only as to whether the respondent No. 3 was necessary or proper party or not. The question as to whether the respondent No. 3 has any rights or not, would arise only after the said respondent files its MP 4 WP3059_11 written statement and the learned Trial Court, on the basis of the material placed before it, considers the said issue. 8. In that view of the matter as also in view of the judgment of the Apex Court in the case of M/s. Aliji Momonji & Co. Vs. Lalji Mavji and others reported in 1996 SCALE (5) page 485, in identical facts, it cannot be said that the jurisdiction exercised by the learned Trial Court has been exercised in the perverse manner to warrant interference in the extra-ordinary jurisdiction. Hence rejected. 9. In the facts and circumstances, the period to carry out the amendment stands extended by two weeks from today. (B.R. GAVAI, J)