1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4587 OF 2009 Naresh S. Tanwar ...Petitioner vs. The Municipal Corporation of Greater Mumbai & others ...Respondents Mr.R.R.Sharma for the petitioner Mr.M.M.Malvankar for respondent no.1-BMC Mr.J.N.Tayade for respondent nos.2 to 7 CORAM :A.S.OKA,J. DATE : FEBRUARY 5, 2010 P.C. 1 Heard the learned counsel for the parties. Considering the narrow controversy involved, the Petition is taken up for final disposal immediately. 2 The petitioner is the third party who had filed a Chamber Summons invoking Rule 10(2) of Order I of the Code of Civil Procedure,1908. The prayer in the chamber summons is for impleading himself as a party to the suit filed by the 2nd to 7th respondents. The suit filed by the 2nd to 7th respondents is simplicitor for injunction restraining the 1st respondent-Corporation from demolishing the suit structure without following due process of law. 3 On earlier occasion the Writ Petition was adjourned to find out whether due process of law has been adopted by the 1st respondent. The learned counsel for the 1st respondent submitted that prior to institution of the suit a notice under section 314 of the Mumbai Municipal Corporation Act,1888 was issued to the 2nd to 7th respondents. The learned counsel for the said respondents states that such notice is not served. 2 4 After having heard the learned counsel for the parties, I find that the trial Court has committed an error in dismissing the chamber summons. In fact, in paragraph 8 of the impugned order, following finding has been recorded by the learned trial Judge : 8...In our case, no such fact is there. Had the defendants/BMC issued notice under section351 of MMC Act, then the applicant would have been a necessary party... The view taken by the learned trial Judge is that the present suit is simplicitor for injunction restraining the 1st respondent from initiating action of demolition without following due process of law. The learned Judge held that if the challenge in the suit was to the notice of demolition, then the petitioner would have been a necessary party to the suit. If the petitioner is a necessary party in the suit challenging the notice of demolition, there is no reason why he cannot be a necessary party in a suit which seeks injunction restraining the 1st respondent from carrying out the work of demolition. In fact, it is pointed out that there is already an order of temporary injunction passed. The distinction made between the two categories of cases is artificial and there is no basis for making such a distinction. In view of the finding recorded by the learned trial Judge, the chamber summons ought to have allowed. 5 Hence, I pass the following order : i) Impugned Judgment and Order dated 30th March 2009 is quashed and set aside. 3 ii)Chamber Summons taken out by the petitioner (Exh.6) is made absolute. iii)The original plaintiffs are directed to implead the petitioner as a party defendant to the suit by carrying out necessary amendment. iv)Petition is allowed in above terms. JUDGE