Dismissed

Audrey Ludwig and Ors. v. Municipal Corporation of Gr. Mumbai

Bombay HC19 Mar 2013WP/2815/2013

Case brief

AI extract

What is this about?

Dismissing a writ petition challenging a subordinate court order that allowed the impleadment of a housing society. The court held the impleadment as a proper party was correct because the society was directly implicated in the show cause notice and the suit.

What did the court decide?

Writ petition dismissed; stay on the impugned order continued for four weeks.

Audrey Ludwig and Ors. Vs Municipal Corporation of Gr… — Landlord and Tenant | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.2815 OF 2013

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Audrey Ludwig & ors. : Petitioners. Versus Municipal Corporation of Greater Mumbai and ors. : Respondents.

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Mr. V A Thorat, Senior Advocate, with Ms. Reena Salunkhe i/by Omkar Kulkarni for the Petitioners.

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Mr. M M Malvankar for the Respondent No.1.

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Mr. P K Dhakephalkar, Senior Advocate, i/by Law Charter for the Respondent No.4.

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CORAM : R. M. SAVANT, J. DATE : 19^th March 2013

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P.C.

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1 The order impugned is one dated 5/3/2013 passed by the learned Judge, City Civil Court, Gr. Bombay by which order the Chamber Summons No.444/2013 filed by the Respondent No.4 herein came to be allowed and the Plaintiffs were directed to implead the Respondent No.4 as a party Defendant in the suit in question.

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2 The suit in question has been filed by the Petitioners for challenging the show cause notice issued by the Respondent No.1-Corporation herein. The said show cause notice is in respect of a lease which is allegedly claimed by the original Plaintiffs on the basis of certain documents which were executed in the past. Admittedly, there is no formal Lease Deed executed by the

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Respondent No.1 Corporation. In the suit as can be seen there are averments on the basis of which the show cause notice is sought to be challenged. The averments involve the allegations of malafide, as according to the Plaintiffs the said show cause notice has been issued malafide, at the behest of a local Municipal Councilor, who is a party to the suit in question and who is, according to the Plaintiffs, acting at the behest of the Developer who has been appointed by the Respondent No.4 Society. From the averments made in the plaint it can be seen that the Plaintiffs seek to make an indirect reference to the Respondent No.4 Society. However, in Ground No.5 of the Grounds, which are appearing in the Plaint, there is a direct reference made to the Respondent No.4 Society to the effect that the said show cause notice has been issued malafide at the behest of the Society.

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3 In so far as the Respondent No.4 Society is concerned, it comprises of the slum dwellers who are on the plot in question and who have been there for some time. The Society had propounded a slum rehabilitation scheme pursuant to which a Letter of Intent was issued to it which was dated 16/6/1999. The said Letter of Intent was issued on the basis that the land belongs to the State Government. The said Letter of Intent was taken exception to by the Petitioners herein before the High Power Committee which is constituted by the State Government to look into such matters. The High Power Committee it seems on the ground that since the land belongs to the Mumbai

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Municipal Corporation the Letter of Intent could not have been issued on the basis that the land belongs to the State Government, set aside the Letter of Intent by its order dated 5/2/2011. It is thereafter that the show cause notice came to be issued which is dated 26/3/2012 resulting in the suit being filed and founded on the allegations which have been briefly adverted to herein above.

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4 As indicated above, the local municipal councilor has been arrayed as the Defendant No.3 to the suit in question. The Respondent No.4 Society filed the instant Chamber Summons for its impleadment. This was on the basis that it comprises of the slum dwellers who are on the plot in question and that if any order passed in the suit in question it would adversely affect it. The said Chamber Summons was opposed to on behalf of the Petitioners herein i.e. the original Plaintiffs.

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5 The Trial Court as indicated above has by the impugned order dated 5/3/2013 has allowed the said Chamber Summons. The Trial Court has adverted to the facts which have been mentioned herein above and has come to a conclusion that though the Respondent No.4 Society may not be a necessary party but undoubtedly is a proper party to the suit in question.

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6 The learned Senior Counsel appearing on behalf of the Petitioners would contend that the parameters for impleading a party either necessary or proper has been well settled by the judgments of the Apex Court one of which has been referred in the impugned order being the judgment reported in (1992) 2 SCC 524 in the matter of Ramesh Hirachand Kundanmal v/s Municipal Corporation of Greater Bombay and the second being the judgment of the Apex Court reported in (2005) 6 SCC 733 in the matter of Kasturi v/s. Iyyamperumal and others. The learned Senior Counsel would contend that the Respondent No.4 Society does not qualify either as a necessary or a proper party considering the challenge in the suit, and therefore the Trial Court had erred in allowing the application.

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7 Per contra, the learned Senior Counsel appearing for the Respondent No.4 would contend that considering the averments made in the plaint, and considering the fact that a Letter of Intent had been issued to the Respondent No.4 Society, the Respondent No.4 Society if not a necessary party is a proper party to the suit.

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8 Having considered the rival contentions, in my view, there is no merit in the above Petition. The position in law as regards the impleadment of the parties either necessary or proper parties is well settled by the judgments (supra) of the Apex Court. It would be gainful to refer to the judgment of the

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Apex Court in Ksturi's case and especially Paragraph 13 thereof which is reproduced herein under :-

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“From the aforesaid discussion, it is pellucid that necessary parties are those persons whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and the proper parties are those whose present before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.”

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The Apex Court therefore has expounded as to who are necessary parties and who are proper parties. In so far as proper parties are concerned, they are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such parties.

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9 As indicated above there are averments in the plaint wherein an indirect reference is made to the Respondent No.4 Society, whereas in ground 5 of the grounds there is a direct reference made to the Respondent No.4 Society. The fact that there are slum dwellers on the plot in question was accepted by the predecessor of the Plaintiffs and has also been accepted by the Plaintiffs in the instant suit. It is also required to be noted that a Letter of

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Intent which was issued to the Respondent No.4 Society has been set aside at the behest of the Plaintiffs. The Respondent No.4 Society therefore cannot be said to be a stranger who is seeking to intermeddle in the suit. What is also of significance is the fact that it is the allegation of the Plaintiffs that the show cause notice which has been issued to them is at the behest of the Respondent No.4 Society. In view thereof the impleadment of the Respondent No.4 Society as a party cannot be questioned. The Respondent No.4 Society would undoubtedly assist the Court in adjudication of the case of malafides as is sought to be made out by the Plaintiffs.

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10 In my view, therefore, the impugned order does not merit any interference at the hands of this Court in the writ jurisdiction. The above Writ Petition is accordingly dismissed. However on the application of the learned Senior Counsel appearing for the Petitioners, the stay granted by the Trial Court to its own order i.e. the impugned order is continued for a period of four weeks from date.

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[R.M.SAVANT, J]

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Audrey Ludwig and Ors. v. Municipal Corporation of Gr. Mumbai

Case brief

What is this about?

What did the court decide?

Audrey Ludwig and Ors. v. Municipal Corporation of Gr. Mumbai

Case brief

What is this about?

What did the court decide?

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