1 WP 1210/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1210 OF 2011 Sharad Hari Kunte & Ors. .. Petitioners V/s Nanu Gunwant Mithari & Anr. .. Respondents Mr. Mohit Bhansali i/b Mr. S.B. Prabhavalkar for the petitioners. Ms. Radhika Samant for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 21ST JULY 2011 P.C. : 1. Heard learned advocate for the petitioners and the respondent no.1. Advocate for the respondent no.2 is absent when called. 2. The petitioner nos.1 to 10 are the owners of the suit property. Though there is dispute as to whether the respondent no.1 is a tenant or trespasser, it is undisputed that he is in possession of the suit property. The respondent no.2 is the Mumbai Municipal Corporation within whose limits the suit property is situate. The respondent no.2 issued a notice to the respondent no.1 under section 351 of the Mumbai Municipal Corporation Act (for short “the Act”) to show cause why the 2 WP 1210/2011 structure which is alleged to have been unauthorisedly erected by the respondent no.1 be not demolished. The respondent no.1 filed a suit bearing L.C. Suit No. 1062 of 2009 only against the respondent no.2 for an injunction restraining it from acting upon the notice and taking action of demolition. The petitioners appeared in the suit suo motu and took out a chamber summons for being joined as parties on the ground that they were the owners and persons interested in the property and the action of demolition. They wanted to support the respondent Municipal Corporation in the action of demolition as the action appears to have been initiated upon their complaint. Chamber summons was allowed by the City Civil Court by its order dated 1/2 September 2009 and the respondent no.1 was directed to join the petitioners as party defendants to the suit. The order was not complied with by the respondent no.1 till 18th June 2011. In the meanwhile, the respondent no.1 proceeded with the hearing of Notice of Motion No. 476 of 2009 taken out by the respondent no.1 for an injunction restraining the respondent no.2 from giving effect to the notice of demolition of the suit structure, and by an order dated 9th July 2010 the motion was allowed. The petitioners have challenged that order in the present petition. 3. Learned counsel for the petitioners submits that though 3 WP 1210/2011 they were directed to be joined as parties to the suit, the respondent no.1 failed to carry out the amendment. The Court therefore ought to have dismissed the suit for non-compliance of the order under Order 39 Rule 11 of the Code of Civil Procedure (for short “the Code”). He further submitted that in any event the Court ought not to have proceeded with the hearing of the notice of motion without the petitioners being joined as parties. Notice of Motion No. 476 of 2009 was heard without giving an opportunity to the petitioners of being heard and opposing the motion. Therefore, the order needs to be set aside. 4. As regards the contention of the petitioners that the suit ought to have been dismissed under Order 39 Rule 11 of the Code, counsel for the respondent no.1 submits that the respondent no.1 has since carried out the amendment on 18th June 2011, i.e. after the present petition was filed in this Court and the respondent no.1 was served. It would be open to the trial Court to consider on its own merits the request if made by the petitioners to dismiss the suit for non-compliance of the order for a period of nearly 2 years of the passing of the order directing the respondent no.1 to amend the plaint. 5. The second contention of the petitioners is meritorious. 4 WP 1210/2011 The very purpose of the petitioners in making the application for joining them as parties was to get an opportunity to show to the Court that the structure was unauthorised and illegal and it ought to be demolished. The respondent no.1, despite the order of the Court which had become final, proceeded with the motion without complying it and without joining petitioners as parties. The grievance of the petitioners that they therefore did not have an opportunity of opposing the motion and pointing out the true facts to the Court appears to be genuine. Once the order for joining them as parties became final as the challenge to that order had been repealed by this Court in Civil Revision Application No. 686 of 2009, the respondent no.1 ought to have carried out the amendment forthwith so that the petitioners could have had the opportunity of opposing the motion on merits. Since the motion has been heard without giving an opportunity to the petitioners of being heard in the matter, the impugned order needs to be set aside and is accordingly set aside. The motion however is remanded to the trial Court for hearing it afresh after giving an opportunity to the petitioners of filing their say and being heard in the matter. Writ petition is disposed of in aforesaid terms. (D.G. KARNIK, J.)