1 Reg. C.S. No.

802/2017
ORDER BELOW EXH. 21
CNR:MHTH02-003778-2017

Dattatreya Sakharam Mali and 8

Vs
Thane Municipal Corporation

ORDER BELOW EXH.21

(Passed on this 27th Day of February 2018)
1) This is an application under Order I Rule 10 of the Code of Civil Procedure
for direction to the plaintiff to implead the applicants as party defendants in the
present suit.

2) At outset case of the applicants is that, the plaintiffs have filed suit for the
relief of declaration and injunction in respect of tenanted premises in a suit
chawl standing on CTS No. 09 final plot No. 9(b), plot No. 98. The applicants
are the owners of a land together with suit chawl standing thereon. Entire roof of
the suit has collapsed. The suit premises has become dangerous and
dilapidated. The applicants are necessary and proper party to the suit. On these
grounds, the applicants have prayed for a direction to the plaintiff to implead
them as party defendants to the suit.

3) The defendant corporation prayed for passing necessary orders with a

stand that, the applicants are necessary party to the suit being the owners of
the suit chawl.

4) The plaintiffs have resisted the application through say Exh. 28 on the
ground that, the applicants are not necessary party nor proper party to the suit.
The plaintiff has filed suit to challenge the notice issued by the defendant
corporation. Presence of the applicants is not necessary for adjudication of
matter. On these grounds, he prayed for rejection of the application.

5) This is a suit for relief of declaration that, suit notice dated 24.08.2017 is
illegal and not binding upon it. The plaintiff has sought a relief of perpetual
injunction against the defendant corporation from creating interference into the
possession of the plaintiff and demolishing the suit premises. The plaintiff has
not challenged the ownership of the applicants nor have sought any relief in
respect of it. The applicants in present case claims themselves as the owner of

(Ravikant T. Sakhare)
5th Jt. C.J.S.D. Thane
 2

the suit premises and being so claims themselves as necessary party to the
present suit.

6) Perusal of the record shows that, the applicants have not filed on record
any documents to show that, they are the owners of the suit premises and have
any nexus with it. The plaintiff through say to present application has admitted
status of the applicants as owner of the suit premises. Thus, through admission
on behalf of the plaintiff, status of the applicants as owner of the suit premises is
established.

7) The only question which now pose before me for consideration is whether
the applicants who are the owners of the suit premises are necessary party or
proper party to the present suit. The Hon'ble Supreme Court of India in case of
M/s. Aliji Monoji & Co. Vs. Lalji Mavji and others AIR 1997 SC64, vide its
judgment and order dated 12.07.1996 has pleased to observe that, in case, the
landlord has a direct and substantial interest in the demised building before the
demolition of which notice under Section 351 was issued. In the event of its
demolition, his rights would materially be affected. His right, title and interest in
the property demised to the tenant or licences would be in jeopardy. It may be
that the construction which is sought to be demolished by the Municipal
Corporation was made with or without the consent of the landlord or the lessor.
But the demolition would undoubtedly materially affect the right, title and interest
in the property of the landlord. Under those circumstances, the landlord
necessarily is a proper party, though the relief is sought for against the
Municipal Corporation for perpetual injunction restraining the Municipal
Corporation from demolition of the building. In view of these observations of
Hon'ble Supreme Court of India, the owner of the premises to which a notice is
issued under Section 351 of Maharashtra Municipal Corporation Act, is a proper
party in a suit filed challenging said notice, though relief is sought only against
the municipal corporation restraining it from demolishing the building.

8) Recently in the year 2016, the Hon'ble Supreme Court of India in case of
Mohamed Hussain Gulam Ali Shariffi Vs. Municipal Corporation of Greater
 3 Reg. C.S. No. 802/2017
ORDER BELOW EXH. 21
CNR:MHTH02-003778-2017
Bombay and others 2016 DGLS(SC)1396, vide its judgment and order dated
09.12.2016, in similar set of facts has observed that, basic question which is
required to be decided in the suit is whether the notice issued under Section
351 by the corporation is legally valid or not. To decide this question, only
necessary or proper party in the suit is Mumbai Municipal Corporation, who has
issued such notice. For deciding this question presence of the owner of the suit
premises is not at all required. The suit can be decided even in absence of the
owners. The owners are neither necessary party nor proper party to a suit of
such nature.

9) The ratio of both the cases relied upon by the plaintiffs and the applicants
are the verdicts of same Court of equal strength given on same set of facts on
different dates. It is settled principle of rule of precedence that, a judgment later
in time is binding precedence and has to be followed. Therefore, observation in
case of Mohamed Hussain Gulam Ali Shariffi referred will be binding
precedence upon this Court, whereby it is observed that, the owners are neither
necessary party nor proper party to the suit challenging the notice issued by the
corporation. In view of these observations, the applicants are found to be
neither necessary party nor proper party to present suit. Therefore, in my
opinion, the applicants are not entitled to be impleaded as party to the suit.
Consequently, present application is liable to be rejected. With these
reasonings, I pass following order;

ORDER

1] Application Exh. 21 is rejected.

2] Costs of the application on the applicants.

Date : 27.02.2018. (Ravikant T. Sakhare)

5th Jt. Civil Judge, S.D. Thane.

(Ravikant T. Sakhare)
5th Jt. C.J.S.D. Thane