ASHOK BABULAL AVASTHI Vs. MUNNA NIZAMUDDIN KHANAND OTHER

JUDGEMENT

(1.) In a suit filed by the Respondent- Licensee against the Municipal Corporation to restrain it from demolishing the Property, the Petitioner- Owner of the suit property, the Landlord, sought to implead himself as a party defendant. The trial court rejected the application. Being aggrieved, the Owner filed this writ petition. The learned Single Judge opined that there is a divergence of views taken by the single judges of this Court as to whether the owner of the premises is a necessary or a proper party in such proceedings and referred the matter for consideration by the learned Chief Justice for the constitution of a larger bench to resolve the conflict. Accordingly, the Reference is placed before us.

(2.) To understand the context in which the question came to be referred to the larger bench, a few basic facts of this case need to be noted. The suit property, measuring approximately 1200 sq.ft., is on the ground floor of Awasthi Estate, situated on Bal Bhat Road, Goregaon (East), Mumbai. The Respondent No.1 is on the premises as a Licensee. According to Respondent No.1, the officers of Respondent No.2- Municipal Corporation threatened to remove the structure, failing which the Municipal Corporation would demolish it. Respondent No.1 filed L.C.Suit No.3439/2013 in City Civil Court, Dindoshi, Mumbai, against Respondent No.2, the original Defendant - the Municipal Corporation of Greater Mumbai with a prayer for injunction that the Corporation be restrained from demolishing the suit property/ premises or any part thereof without due process of law. The Petitioner filed Chamber Summons No.1115/2015, contending that the suit was filed behind his back regarding a plot of land of which the Petitioner is the owner and that the Petitioner should be joined as a party. This chamber summons was rejected by the City Civil Court by order dtd. 12/4/2022. The City Civil Court observed that though the Petitioner is the landlord of the property, the property is in possession of Respondent No.1- the original Plaintiff and the dispute between the Petitioner and Respondent No.1 was not the subject matter of the suit, and the relief prayed for could be decided in the absence of the Petitionerlandlord and he was not a necessary party. Challenging this order, the Petitioner filed the present petition.

(3.) During the hearing before the learned Single Judge (S .V. Kotval J), the Petitioner relied upon the decision of the Hon'ble Supreme Court in the case of M/s.Aliji Momonji and Co. v. Lalji Mavji, Docid # IndLawLib/282319. Petitioner also relied on the order by this Court in the case of Nimesh J. Patel v. Municipal Corporation of Greater Mumbai, 2021 SCC OnLine Bom 6588 which was passed following the decision of the Supreme Court in the case of M/s.Aliji Momonji and Co. and the other Supreme Court decision in the case of Mohamed Hussain Gulam Ali Shariffi v. Municipal Corporation of Greater Bombay, 2020 (14) SCC 392. According to the Petitioner, these decisions supported the contention of the Petitioner that the landlord should have been joined even though relief was sought by Respondent No.1- Plaintiff against Respondent No.2-Municipal Corporation. The learned Counsel for the Petitioner fairly brought to the notice of the learned Single Judge the decision of the learned Single Judge of this Court in the case of Deju Somaya Salian v. The Municipal Corporation of Greater Mumbai, 2018 SCC OnLine Bom 14834 taking a different view than the view taken by Nimesh Patel. In the case of Deju Salian, the learned Single Judge, after referring to the Supreme Court decisions in the cases of Aliji Momonji and Mohamed Hussain Shariffi, concluded that he was bound by Mohamed Hussain Shariffi and because the Plaintiff, being a dominus litis cannot be forced to join any party to his suit unless the legal position requires so.