SHANTILAL JUGRAJ KAVEDIA Vs. VIJAYRAJ MANDANRAJ KAVEDIA

JUDGEMENT

(1.) BY This Writ Petition under article 227 of the Constitution of India, the petitioner has challenged the judgment and order dated the 10th October 2008 passed by the learned Civil Judge (Junior Division) Pune. The petition is taken up for final disposal at admission stage.

(2.) THE first respondent filed a suit against the second respondent -Municipal Corporation for perpetual injunction restraining the second defendant from demolishing the suit structure on the basis of a notice dated 27th November 2007. A declaration is also prayed for declaring that the said notice is void ab-initio. The suit structure is a building constructed on property bearing City Survey number 1187 E situated at Ravivar Peth, Pune. It is stated in the suit that the suit structure was in hazardous condition in the year 2006. On 15th April 2006, an assistant engineer of the second respondent Corporation issued notice to the first respondent that the entire wall on the southern side had become dangerous. Thereafter, the first respondent started work of demolition and repair of the old structure. It is alleged that the said work was started on the basis of the notice issued by the second respondent Corporation. Thereafter, a notice was issued by the second respondent alleging that the first respondent was carrying on additional work of the repairs. By notice dated 27th of November 2007, the second respondent called upon the first respondent to remove the supporting columns, beams and steel strips (Kadipat). Thereafter, the first respondent filed the aforesaid suit.

(3.) THE learned counsel appearing for the petitioner submitted that the petitioner is a necessary or a proper party to the suit filed by the first respondent in as much as the specific case of the petitioner is that damage has been caused to the petitioner's property due to illegal construction carried out by the first respondent. He submitted that to the suit filed by the petitioner, the first respondent and his mother have been impleaded as parties. The learned counsel relied upon a decision of division bench of this Court in the case of Chitralekha Builders and others versus G.I.C. Employees Sonal Vihar Co-operative Housing Society Limited and others. He submitted that the impugned order is illegal. The learned counsel appearing for the first respondent submitted that the petitioner is neither a necessary nor a proper party to the suit. He placed reliance on a decision of this Court in the case of H.R.Baheti (Dr) and others versus the Municipal Corporation of Amaravati and another (1987 (3) Bombay cases reporter 19). He urged that the reliefs claimed by the first respondent in the suit will not affect the petitioner. The learned counsel appearing for the second respondent submitted to the orders of the Court. He stated that the second respondent Corporation is contesting the suit filed by the first respondent.