Bombay High Court
Ashok Babulal Avasthi vs Munna Nizamuddin Khan And Anr on 18 April, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6933 OF 2022
Ashok Babulal Avasthi .... Petitioner
versus
Munna Nizamuddin Khan & Anr. .... Respondents
.......
• Mr. Pradeep Thorat i/b. Aditi S. Naikare, Advocate for Petitioner.
• Mr. Datta Mane a/w Mr. Akash Yadav, Advocate for Respondent
No.1.
• Mr. R. Y. Sirsikar, Advocate for Respondent No.2/BMC.
CORAM : SARANG V. KOTWAL, J.
DATE : 18th APRIL 2023
P.C. :
1. Heard Mr.Pradeep Thorat, learned counsel for the
Petitioner, Mr.Datta Mane, learned counsel for the Respondent
No.1 and Mr. R. Y. Sirsikar, learned counsel for the Respondent
No.2/BMC.
2. This Petition challenges the order dated 12/04/2022
passed by the Additional Judge, City Civil Court, Borivali
Nesarikar
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Division, Dindoshi, Mumbai, in Chamber Summons No.1115 of
2015 in LC Suit No.3439/2013. By the impugned order, the
learned Judge had dismissed the Chamber Summons, which was
filed by the Petitioner for being impleaded as a Defendant in the
said suit. The Petitioner claims to be the owner of the suit
property. The Respondent No.1 is the Original Plaintiff and the
Municipal Corporation of Greater Mumbai (for short 'MCGM'),
who are the Respondent No.2 herein, are the sole Defendant in
the said suit.
3. The suit property is the premises bearing survey
No.129 Hissa No.4 approximately admeasuring 1200 sq.ft.,
being No.2/A, Ground Floor known as Awasthi Estate, Bal Bhat
Road, Goregaon (E), Mumbai-400 063. The suit was filed with
the prayer that the Defendant i.e. the MCGM be restrained
permanently from demolishing and/or removing the suit
premises or any part thereof, without following the due process
of law. According to the Plaintiff/Respondent No.1, he was in
occupation and possession of the suit premises. In the plaint it is
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mentioned that the officers of the MCGM/Defendant had
threatened the Plaintiff to remove the suit structure, failing
which it would be demolished by the Corporation.
4. In this suit, the Chamber Summons was filed by the
Petitioner claiming that the Plaintiff had filed suit behind his
back in respect of the Petitioner's plot of land. This Chamber
Summons was dismissed by the impugned order. It was observed
that though the Petitioner was the landlord of the property in
possession of the Plaintiff, then also he was not a necessary
party to decide the real controversy in this matter. The dispute
about the relationship between the Plaintiff and the Petitioner
herein and their rights were not the subject matter of the suit.
He further observed that the relief claimed by the Plaintiff, in
this particular suit, could be decided in the absence of the
landlord/Petitioner herein and therefore the Petitioner was held
to be not a necessary party to the suit.
5. Learned counsel for the Petitioner relied on the
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judgment of the Hon'ble Supreme Court in the case of Ali
Momonji Vs. Lalji Mavji & Ors., as reported in (1996) 5 SCC
379, in which the Hon'ble Supreme Court held that the landlord
has a direct and substantial interest in the demised building
before the demolition of which notice for demolition was issued.
In the event of its demolition, his rights would materially be
affected. His right, title and interest in the property demised to
the tenant or licensee would be in jeopardy. Under those
circumstances, the landlord was a proper party, though the relief
was sought for against the Municipal Corporation for perpetual
injunction restraining the Municipal Corporation from
demolition of the building.
6. Mr. Thorat also relied on the judgment of this Court
passed in Writ Petition No.7074 of 2016 in the case of Nimesh J.
Patel Vs. Municipal Corporation of Greater Mumbai & Anr.,
which was decided along with the other Petitions. The learned
Single Judge after referring to Ali Momonji's judgment (supra)
also referred to another judgment of the Hon'ble Supreme Court
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in the case of Mohamed Hussain Gulam Ali Shariffi Vs.
Municipal Corporation of Greater Bombay, as reported in 2020
(14) Supreme Court Cases 392 and the learned Judge ultimately
came to the conclusion that the owner of the property who has
right, title and interest in the same, would be affected by the
outcome of the proceedings as a necessary party.
7. Mr. Thorat fairly submitted that another Single Judge
Bench of this Court in the case of Deju Somaya Salian Vs. The
Municipal Corporation of Greater Mumbai, in Writ Petition
No.7123 of 2018 had passed an order on 24/09/2018 taking a
different view from the one in Nimesh Patel's case (supra). In
this case of Deju Salian, the learned Single Judge referred to
both the judgments of Ali Momonji (supra) and Mohamed
Hussain (supra) and observed that he was bound by the later
judgment of the Hon'ble Supreme Court in the case of Mohamed
Hussain Gulam Ali Shariffi (supra) and ultimately it was held
that the Plaintiff being a dominus litis cannot be forced to add
any person as a party to his suit unless it is held keeping in view
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the pleadings and the relief claimed therein that a person sought
to be added as a party is a necessary party and without his
presence neither the suit can be proceeded with nor the relief
can be granted.
8. Thus, the learned Single Judge in the case of Deju
Salian (supra) has expressed a contrary view to the one
expressed by another Single Judge in Nimesh Patel's case
(supra). In Nimesh Patel's case (supra), this particular order
passed in Deju Salian (supra) was not pointed out. Thus, it is
quite apparent that there are two conflicting views expressed by
two Single Judges of this Court referring to the two same
Supreme Court Judgments in Ali Momonji (supra) and
Mohamed Hussain Gulam Ali Shariffi (supra). To resolve this
apparent conflict, it is necessary to refer this issue to a Larger
Bench.
9. Learned counsel for the Respondents submitted that
necessary orders be passed in this case.
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10. In this case it is necessary to refer this issue to a Larger
Bench. For that purpose I am relying on the provisions of Rule 8
of Chapter I of the Bombay High Court Appellate Side Rules,
1960. The issue for reference is formulated as follows;
"Whether in a suit filed by the occupant or tenant for
protection of a structure against demolition by the
Authorities, whether the owner or the landlord is a
necessary party?"
11. The Registry shall place this matter before the Hon'ble
the Chief Justice for assigning this matter to an appropriate
Larger Bench.
(SARANG V. KOTWAL, J.)
