Bombay High Court
Ashmin Products Thr Its Partners vs Thane Municipal Corporation Thane And ... on 20 December, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:38586
45-wp15030-2022 with wp15420-2022.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15030 OF 2022
Asha Ramantal Kothari ... Petitioner
V/s.
Thane Municipal Corporation & Anr. ... Respondents
WITH
WRIT PETITION NO.15420 OF 2022
Ashmin Products, through its partners ... Petitioner
V/s.
Thane Municipal Corporation & Anr. ... Respondents
Mr. Pritesh Burad with Ms. Nrutp Savla i/by M/s.
Pritesh Burad Associates for the petitioner in both the
WPs (through V.C.)
Mr. Jagdish G. Aradwad (Reddy) with Ms. Ashwini
Jadhav for respondent Nos.1 & 2.
Ms. Sneha B. Pandey with Ms. Shweta R. Rathod i/by
Elixir Legal Services for respondent No.3.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 20, 2023
P.C.:
1. The petitioners are original plaintiffs in a suit seeking
declaration that the order passed by the Municipal Corporation
directing plaintiff to vacate the suit premises for the purpose of
road widening be declared as not binding on the plaintiff and
injunction not to disturb their possession over the suit property
without following due process of law under Section 126 of the
Maharashtra Town & Regional Planning Act, 1966.
45-wp15030-2022 with wp15420-2022.doc
2. In such suit, third party (owner) of the structure filed an
application under Order 1 Rule 10 of the Code of Civil Procedure,
1908. The Trial Court by the impugned order allowed the
application holding that owner is proper party to such suit.
3. The Division Bench of this Court in Ashok Babulal
Avasthi v. Munna Nizamuddin Khan & Anr., Writ Petition
No.6933 of 2022 delivered on 29 November 2023 hold that in
such a suit challenging order under Section 351 or 354 of the
Mumbai Municipal Corporation Act, 1949.
4. Learned advocate for the petitioner relied on the judgment in
Mohamed Hussain Gulam Shariffi v. Municipal
Corporation of Greater Bmbay & Ors. reported in (2020) 14
SCC 392.
5. On perusal of the said judgment, it appears that the person
who applied for impleadment had filed a suit for specific
performance of agreement to sale. Such suit for specific
performance was pending on the date when the applicant therein
filed application for impleadment. Therefore, in absence of title to
such person, the Apex Court held that such person cannot be held
necessary party in a suit challenging notice under Section 351.
6. Learned advocate for the petitioner further submitted that
the plaintiff being dominus litis, it is the discretion of the plaintiff
who he wants to make party to the suit. Generally it is true that
the plaintiff is dominus litis and it is the plaintiff who decides who
should be made party to the suit. However, such general principle
is subject to the power of Court under Order 1 Rule 10 (2) of the
45-wp15030-2022 with wp15420-2022.doc
Code of Civil Procedure, 1908. Sub-rule (2) of Order 1 Rule 10
confers discretion on the Court subject to fulfillment of its
ingredients to add a person either as a necessary or property party.
It is well settled that a person can be said to be necessary party if
no relief can be granted without his presence and a person can be
said to be proper party if without his presence the issue involved in
the suit cannot be completely and effectually adjudicated.
7. In the facts of the case, the result of the decision in the suit
would affect rights of owners of the structure as plaintiff's failure
to prove the case may entail consequence of demolition of the suit
property. Therefore, the Trial Court rightly held that owner of such
structure is property party to the suit. Therefore, no interference
under Article 227 of the Constitution of India is called for.
8. Both the writ petitions stand disposed of in above terms. No
costs.
9. It is made clear that the observations made in the present
order shall not influence the Trial Court while deciding the suit/s
on merits.
(AMIT BORKAR, J.)
