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SUPREME COURT OF INDIA
A.K. Sikri, Abhay Manohar Sapre, JJ.
Mohamed Hussain Gulam Ali Shariffi – Appellant
Versus
Municipal Corporation of Greater Bombay and Others – Respondents
Civil Appeal No. 12273 of 2016
Decided On : 09-12-2016
Mumbai Municipal Corporation Act, 1888 - Notice under Section 351 - The court held that respondent Nos. 2 and 3 are neither necessary nor proper parties in the suit. The suit can be decided even in the absence of respondent Nos. 2 and 3. The presence of respondent Nos. 2 and 3 is not required for deciding the legality of the notice impugned in the suit on merits.
Fact of the Case:
The appellant filed a suit against respondent No. 1 challenging the notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888. Respondent Nos. 2 and 3 sought to be added as defendant Nos. 2 and 3 in the suit.
Finding of the Court:
The court found that respondent Nos. 2 and 3 are neither necessary nor proper parties in the suit. The suit can be decided even in the absence of respondent Nos. 2 and 3.
Issues: The main issue was whether respondent Nos. 2 and 3 should be added as defendants in the suit filed by the appellant against respondent No. 1.
Ratio Decidendi: The plaintiff cannot be forced to add any person as a party to the suit unless it is held that the person sought to be added is a necessary party without whom the suit cannot proceed or the relief cannot be granted.
Final Decision: The appeal succeeded, and the impugned order was set aside. Chamber Summons No. 1353 of 2014 taken out by respondent Nos. 2 and 3 was dismissed, holding that they are neither necessary nor proper parties to the suit. The Trial Court was directed to decide the suit on merits in accordance with the law expeditiously.
JUDGMENT :
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment and order dated 16.11.2016 passed by the High Court of Judicature at Bombay in Writ Petition No. 11707 of 2014 whereby the High Court dismissed the writ petition filed by the appellant herein.
3. Facts of the case lie in a narrow compass so are the issue involved in the appeal, a short one. It would, however, be clear from the facts mentioned infra.
4. The appellant is the plaintiff whereas respondent No. 1 is defendant No. 1 and respondent Nos. 2 and 3 are sought to be added as defendant Nos. 2 and 3 at their instance in the suit filed by the appellant against respondent No. 1.
5. The appellant has filed a suit against respondent No. 1 wherein the challenge is essentially to the notice dated 17.05.2013 issued by respondent No. 1 (Municipal Corporation of Greater Bombay) under Section 351 of the Mumbai Municipal Corporation Act, 1888 (for short "the Act"). In the notice impugned in the suit, the main grievance of respondent No. 1 is that the plaintiff has made some unauthorized construction in the building in question known as Haroon Manzil, Ground Floor, 354 S.V. Patel Road, Mumbai (hereinafter referred to as "Suit house").
6. Challenging the legality of the notice dated 17.05.2013, the appellant had initially filed a writ petition in the High Court. However, it was withdrawn with a liberty to file the Civil Suit.
7. Accordingly, the appellant filed a Suit in the Bombay City Civil Court, Greater Mumbai challenging the notice dated 17.05.2013 issued under Section 351 of the Act as also letter dated 20.06.2013. The appellant also prayed for injunction restraining respondent No. 1 (defendant No. 1) from acting upon the notice dated 17.05.2013 and letter dated 20.06.2013. During the pendency of the suit, respondent Nos. 2 and 3 filed an application (Chamber Summons No. 1353 of 2014) seeking permission to implead them as defendants in the suit. It was, inter-alia, alleged that respondent Nos. 2 and 3 have an interest in the suit house inasmuch as they claimed to have an ownership rights in the suit house. It was also alleged that one Civil Suit No. 424/2008 seeking specific performance of agreement is filed by respondent Nos. 2 and 3 in relation to the suit house and the same is pending. It was thus prayed that they (respondent Nos. 2 and 3) being necessary parties for proper adjudication of the rights of the parties in relation to the suit house be allowed to become defendants in the suit in question.
8. The appellant as the plaintiff opposed the aforesaid application (Chamber Summons No. 1353/2014) made by respondent Nos. 2 and 3 contending, inter-alia, that the application is wholly misconceived and hence liable to be dismissed. It was contended that respondent Nos. 2 and 3 are neither necessary nor proper parties to the suit filed by the appellant whereas the only necessary party to the suit is respondent No. 1 for proper adjudication of the dispute for which the suit is filed against respondent No. 1.
9. The Trial Court, by order dated 16.10.2014 allowed the application (Chamber Summons No. 1353/2014) filed by respondent Nos. 2 and 3 and permitted them to become party-defendants in the suit. The Trial Court held that respondent Nos. 2 and 3 are proper parties, if not necessary, in the suit.
10. The appellant, felt aggrieved by this order, filed writ petition before the High Court. By impugned order dated 16.11.2016, the High Court dismissed the appellant's writ petition giving rise to filing of this appeal by way of special leave petition against the impugned order of the High Court.
11. Heard Mr. Shyam Divan, learned senior counsel for the appellant and Ms. Firdaus Moosa, learned counsel for respondent Nos. 2 and 3.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and set aside the impugned order.
13. In our considered opinion, having regard to the nature
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