JUDGMENT - CHANDRACHUD D.Y. (Dr.), J.: - Rule, returnable forthwith. Respondents waive service. By consent, taken up for hearing and final disposal.

2. In this petition under Article 227 an order passed by the City Civil Court on 19th September, 2003 rejecting a Chamber Summons filed by the petitioner under Order 1, Rule 10 of the Code of Civil Procedure, 1908 for being impleaded as a defendant to the suit instituted by the first respondent against second respondent, has been challenged.

3. The petitioner and the first respondent are owners of adjoining structures situated at Goma Galli, Versova Village, Andheri (West), Mumbai 400 061. The structure belonging to the petitioner consists of a ground floor built in brick masonry walls. According to the petitioner, there was a parcel of open land between the structure of the first respondent and that of the petitioner. In the first week of November, 2001, it was alleged that the first respondent started digging up the land underneath his structure, with the object of constructing a permanent structure in place of the existing structure which consisted of iron sheets. The petitioner lodged a complaint on 6th November, 2001 by his Advocates letter calling upon the Municipal Corporation to stop the unauthorized construction forthwith. Since the Municipal Corporation failed to pay heed, the petitioner instituted a writ petition before this Court under Article 226 of Constitution (Writ Petition 2853 of 2001) praying for a writ of mandamus directing the Municipal Corporation to stop the unauthorized construction and to carry out a demolition of the work which had already been put up. The petition was initially heard on 21st November, 2001 when a direction was issued to the Municipal Corporation to take appropriate action in the matter either to stop, or as the case may be, demolish the construction work that was being carried out if it was found to be unauthorized. Thereafter on 11th December, 2001, the Municipal Corporation was directed to explain what steps had been taken in pursuance of the order passed by the Court on the previous occasion by deputing an officer to remain present in the Court. On 21st December, 2001, an affidavit was filed before the Court on behalf of the Municipal Corporation and an assurance was given to the Court that necessary action would be initiated against the construction which had been carried out by the first respondent within a period of two weeks. The first respondent on his part also instituted a petition before this Court under Article 226 of the Constitution (Writ petition 367 of 2002).

4. Both the petition that was instituted by the petitioner (Writ Petition 2853 of 2001) and the petition instituted by the first respondent (Writ Petition 367 of 2002) were disposed of by orders dated 23rd April, 2002 of a Division Bench. In so far as the petition instituted by the petitioner is concerned, the Division Bench noted that despite a stop work notice that was issued to the first respondent, he had carried on his activity of making an unauthorized construction. The Municipal Corporation stated that on 24th December, 2001, it had partially demolished the construction which had unauthorizedly been carried out by the first respondent so as to render it unusable. This was in respect of the first floor. The Municipal Corporation stated that the ground floor had not been demolished since the existing ground floor premises of the first respondent had been damaged due to a collapse of an adjoining roof on 13th June, 2001. The Division Bench disposed of the petition filed by the petitioner recording that action had been taken by the Municipal Corporation in respect of the unauthorized construction raised by the first respondent.

5. In so far as the petition filed by the first respondent was concerned, the Division Bench noted that while the material on record indicated that the house had collapsed due to the falling of a roof slab of the adjoining house, the first r

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