Bombay High Court
M/S Alfa Engineering Company vs Municipal Corporation Of Greater ... on 20 December, 2011
Bench: R. M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 2522 OF 2011
M/s Alfa Engineering Company ... Petitioner
Versus
Municipal Corporation of Greater Mumbai
and others ... Respondents
Mr. D. S. Sawant a/w Mr. Rajesh B. Parab for the petitioner
Mr. Pratap F. Singh, for the respondent No.2
ig CORAM: R. M. SAVANT, J.
DATED : 20th December, 2011
P.C. :
1. Rule, with the consent of the parties, made returnable forthwith
and heard.
2. The above petition takes exception to the order dated 31st
March, 2010 passed by the learned Judge of the City Civil Court,
Greater Bombay by which order the application Exh.6 filed in Long
Cause Suit No. 677 of 2008 came to be allowed. Resultantly, the two
applicants namely, Jafarali Sevwala and Nooruddinali Sevwala are
added as party defendants to the said suit.
3. Shorn of unnecessary details, a few facts can be stated thus:
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The petitioner herein which is a partnership firm registered on
27th November, 2006 has filed the said Suit No. 677 of 2008
challenging the communication dated 8th March, 2008 by which
communication, the permit granted to the petitioner under section 390
read with Section 479 of the Mumbai Municipal Corporation Act came to
be revoked. The petitioner firm is carrying out the business of
assembling electric fans as well as repairing of household electrical
appliances and articles in Gala No. 19, 2nd Floor of the premises
situated at the address mentioned in the cause title of the said suit. It
appears that prior to the said Exh.6 application, an application was
filed by the son of the applicant no.1 namely Hussein Jafarali Sevwala
for impleadment in the said suit which application came to be rejected
by the trial Court by order dated 4th July 2008. It appears that the said
applicant had also relied upon the identical documents i.e. the
complaint made to the BMC against the plaintiff, for his impleadment.
4. It is pertinent to note that after the said application of Hussein
was rejected on 4th July, 2008 the present applicants have filed the
instant application Exh.6 on 20th July, 2008 and the substratum of the
said application is the letter dated 8th March, 2008 which has been
addressed to one of the applicants however the address in the said
letter is that of the petitioner. The said application was opposed by the
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petitioner by filing its reply and inter alia, taken contention that the
applicants are neither necessary party nor proper party. Considering
the lis that is being adjudicated upon, the learned trial Court passed the
impugned order. Whilst allowing the said application particularly relying
upon the letter dated 8th March, 2008 addressed to the applicant no.1
Jafarali Sevwala, the trial Court seems was carried away by the fact
that there is some litigation pending between the parties and therefore
held that it was necessary to implead the applicants as party
defendants.
5. In so far as the said letter dated 8th March, 2008 is concerned,
the learned counsel for the petitioner Shri Sawant has drawn my
attention to the certificate of registration of the said partnership firm
which has been issued by the Registrar of Firm on 27th November, 2006
as also the other documents. The said documents disclose that there
are only three partners Smt. Asma Hakimuddin Attarwala (2) Mr. Zohar
Hakimmuddin Attarwala and (3) Saifuddin Hakimuddin Attarwala. Name
of the applicant Jafarali Sevwala i.e. respondent nos. 2 herein does not
appear in any of the said documents. The suit as indicated above has
been filed challenging the revocation of permit granted by the BMC
under Section 390 read with section 479 of the MMC Act. It is pertinent
to note that though the rejection of the earlier application of the son
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Hussein was pleaded and also the submissions were advanced on the
said basis, as also on the communication dated 8th March, 2008 and
submissions, were also advanced to the effect that the respondent no.2
Jafarali could not have any connection with the petitioner firm, the
said submissions have not been even adverted to by the trial Court in
the impugned order, however by merely referring to the letter dated
8th March, 2008, the trial Court has allowed the said application Exh.6
filed for impleadment by the applicants.
6. In the light of the documents relating to the partnership firm,
how the said letter dated 8th March, 2008 was addressed to the
Respondent no.2 Jafarali Sevwala at the address of the petitioner begs
an answer. The trial Court ought to have addressed the said issue. The
trial Court also ought to have considered the order passed on the
application of the son Hussein, the trial Court also ought to have
considered the submissions made on behalf of the petitioner in respect
of the said letter dated 8th March, 2008 and without considering any of
the aforesaid aspects, the trial Court, by a cryptic order, allowed the
said application. In my view, therefore, the impugned order is required
to be quashed and set aside and is accordingly quashed and set aside.
The matter is relegated back to the trial Court for a de novo
consideration of the application Exh.6 in the light of the what has been
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stated herein above. On remand the trial Court to decide the said
application Exh.6 within a period of two months from the first
appearance of the party. The parties to appear before the trial Court on
9th January, 2012. The trial Court to decide the said application within
two months thereafter. The parties would be at liberty to file additional
affidavits or replies, if so advised.
7. Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
(R. M. SAVANT, J.)
