Dismissed

Smt. Hajiyani Naseem Mohammed Abdul Raoof Memon v. the Municipal Corporation of Greater Mumbai

Bombay HC25 Oct 2012WP/7857/2012

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the Trial Court's order allowing the impleadment of the Respondent as a necessary party Defendant. The court upheld the Trial Court's finding that the Respondent had an interest in the property based on documents dating back to 1941 and his participation in prior municipal proceedings.

What did the court decide?

The Writ Petition was dismissed and the order staying the impleadment of the respondent was rejected. Time granted for amendment.

Smt. Hajiyani Naseem Mohammed Abdul Raoof… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7857 of 2012

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Smt. Hajiyani Naseem Mohd Abdul Raoof Memon versus MCGM And

Mr. G. M. Coelho

: Petitioner

: Respondent

: Respondent

(Org. Applicant/ proposed Defendant No.2

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Mr. K. D. Jha for the Petitioner Mr. Atul Damle for the Respondent G.M.Coelho

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CORAM:- R M SAVANT, J DATED :- 25^th OCTOBER, 2012.

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P.C.

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1 The Order impugned is one dated 10-7-2012, passed by the Learned Judge of the City Civil Court, Greater Mumbai, by which Order, Chamber Summons No.131 of 2012, came to be allowed and the Respondent herein G.M.Coelho was directed to be impleaded as party Defendant in the Suit in question.

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2 The Suit in question being L.C.Suit No.2206 of 2011 has been filed by the Petitioner herein challenging the notice issued under Section 351 of the MMC Act, 1888. The allegations in the notice is that the Petitioner has

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put up a shop in the open space of house gully between Habib Park

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building and Haji Mohammed Court building, wherein the Petitioner is carrying out the business of selling cold drinks.

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3 At the outset, it is required to be noted that in the proceedings which were commenced pursuant to the said notice under Section 351, which proceedings were commenced on the complaint of the Respondent, the Deputy Municipal Commissioner of the Mumbai Municipal Corporation, had heard the Respondent and thereafter passed the order dated 21-92011 (Exhibit J to the Petition), thereby confirming the notice. Inspite of the said participation of the Respondent in the proceedings wherein the locus of the Respondent was never challenged, the Respondent was not made a party Defendant to the Suit in question wherein the notice as well as the subsequent order passed thereon, is under challenge. The Respondent therefore filed Application being Chamber Summons No.131 of 2012 for his impleadment. It was the case of the Respondent that he was a lessee from the Christ Church Estate in respect of the property, in which the shop has been put up in respect of which notice under Section 351 was issued. The Respondent relied upon various documents in support of his said case. The said documents date back to the year 1941 issued by the then Bombay Municipality. By the document dated 21-6-1941, the father of the Respondent who was a Presidency Magistrate and the lessee was

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requested to carry out the following works

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“(1) To remove debris mixed with refuse from the passage.

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(2) To provide a door at the entrance of the passage with locking arrangement. (3) To consolidate and level the passage with some hard material and make its surface smooth.”

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4 The Respondent also relied upon a letter dated 23-3-2011 addressed to the BMC on behalf of the Prince Court Tenants And Occupants Building Repair Fund, the warrant of attachment issued by the Corporation and the receipts issued by the Corporation to buttress his case that he has interest in the property on which the offending structure is situated and which is the subject matter of the notice issued under Section 351. The Respondent also relied upon the proceedings in Writ Petition No.2256 of 1999, the orders passed thereon including the orders passed by the Division Bench in the Appeal which was filed against the order passed in the Writ Petition.

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5 The Application of the Respondent was opposed on behalf of the Petitioner. The Trial Court on a consideration of the aforesaid material reached a conclusion that the Respondent has an interest in the property and therefore is a necessary party to the Suit in question. It is the said order which is impugned in the present Petition.

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6 The Learned Counsel Mr. Jha appearing for the Petitioner would seek

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to question the reliance placed by the Trial Court on the documents on the ground that the said documents do not relate to the property in question. The Learned Counsel would also seek to challenge the authenticity of the said documents. It is the submission of the learned Counsel that the property which is allegedly leased out to the Petitioner by the Christ Church Estate stands apart from the property in respect of which the notice in question has been issued.

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7 Per contra Mr. Damle the Learned Counsel appearing for the Respondent submitted that for the purpose of being impleaded as a party, the Applicant has to prima facie show that he has vestige of interest in the property in question which is the subject matter of the Suit. The Learned Counsel would draw my attention to the various documents which were produced before the Trial Court and also the documents of which a compilation has been preferred and tendered by the Learned Counsel for the Respondent across the bar at the hearing of the above Petition. The Learned Counsel would contend that in the Writ Petition filed by the Christ Church Estate, being Writ Petition No.79 of 2000, the said organisation which is the owner of the property has accepted the fact that the Respondent is its lessee and has even sought the recovery of rent from it.

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8 Having heard the Learned Counsel for the parties, in my view, in so

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far as the order passed by the Trial Court allowing the impleadment of the Respondent is concerned, no interdiction with the same is called for in the Writ Jurisdiction of this Court. As indicated above, the documents showing that the Respondent has interest in the property in question are dating back right up to the year 1941. Though the learned Counsel for the Respondent sought to question the authenticity of the document which is dated 1941, a perusal of the said document indicates that the said document has been issued in the year 1941 by the then Bombay Municipality and is in respect of clearing the passage, the then Bombay Municipality had requested the father of the Respondent as a lessee to carry out the works which have been adverted to in the earlier part of this order. In my view therefore, there is no substance in the contention of the Learned Counsel for the Petitioner as regards the authenticity of the said documents. The defining aspect as it were are the averments made in Writ Petition No.79 of 2000 by the Christ Church Estate, in paragraphs 2 and 3 of the said Writ Petition, the said owners who were the Petitioners have averred that father of the Respondent was a lessee who has been given the lease for a period of 999 years. It is on the basis of the aforesaid material

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as also considering the fact that the notice has been issued on the basis of the complaint of the Respondent, that the Trial Court has come to a

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conclusion that the Respondent is a necessary party. Therefore even assuming that the compilation of the documents which is tendered today by Mr. Damle is kept aside, in my view on the basis of the material already on record the conclusion reached by the Trial Court that the Respondent has an interest in the property in question and is therefore required to be impleaded in the Suit, cannot be faulted with. No case for interference is made out. The Writ Petition is accordingly dismissed.

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9 At this stage the Learned Counsel for the Petitioner submits that the instant order be stayed for some time. In the facts and circumstances of the case, the said request is rejected. However, the time to carry out amendment in terms of the impugned order is extended by a period of two weeks from date.

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(R M SAVANT, J)

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Smt. Hajiyani Naseem Mohammed Abdul Raoof Memon v. the Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

Smt. Hajiyani Naseem Mohammed Abdul Raoof Memon v. the Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

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