RAJ GARDEN CO OP. HSG. SOC. LTDversusMAHENDRA ARJUN SHINDE AND ANR

                                                                        20-WP9697-2026.DOC

                                                                                   Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 9697 OF 2026

                      Raj Garden Co-Operative Housing Society
                      Limited                                                ...Petitioner
                                        Versus
                      1. Mahendra Arjun Shinde
                      2. Municipal Corporation of Greater
                      Mumbai                                             …Respondents

                      Mr. Ruchir Tolat, i/b Vishal Acharya, for the Petitioner.
                      Ms. Purva Basrur, i/b D. M. Legal Asso., for Respondent No.1.
SANTOSH               Mr. Santosh Mali, for Respondent No.2 – BMC.
SUBHASH
KULKARNI                                             CORAM: N. J. JAMADAR, J.
Digitally signed by
SANTOSH SUBHASH
KULKARNI
                                                     DATED: 7th SEPTEMBER, 2026
Date: 2026.09.11
15:04:54 +0530

                      JUDGMENT:-

                      1.    In view of the limited nature of the controversy, Rule.

                      Rule made returnable forthwith and, with the consent of the

                      learned Counsel for the parties, heard finally.

                      2.    Heard Mr. Ruchir Tolat, the learned Counsel for the

                      Petitioner,   Ms.   Purva   Basrur,   the   learned   Counsel    for

                      Respondent No.1, and Mr. Santosh Mali, the learned Counsel for

                      for the BMC – Respondent No.2.

                      3.    The challenge in this petition is to an order dated 28 th

                      April, 2026, whereby the learned Judge, City Civil Court,

                      Borivali Division, was persuaded to dismiss the Chamber

                      Summons No. 288 of 2026 taken out by the petitioner for
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impleadment in LC Suit No. 451 of 2026, instituted by

respondent No. 1 against respondent No. 2 - Municipal

Corporation.

4.    The background facts can be stated as under:

4.1   The petitioner is a Cooperative Housing Society registered

under the provisions of the Maharashtra Co-operative Societies

Act, 1960 (‘the Act, 1960’). The petitioner claims to be the owner

of the lands bearing CTS Nos. 128A/40, 128A/40/1, and

128A/40/2 situated at Kandivali.

4.2   Respondent No. 1 claims to be in use, occupation, and

possession of the godown and residential premises admeasuring

253 and 1050 sq. ft. respectively, situated at Survey No.163

Kandivali (West), Mumbai, (the suit premises).

4.3   Respondent No. 2 - Municipal Corporation had issued

notices dated 17th November, 2025, purportedly under Section

351 (1A) of the Mumbai Municipal Corporation Act, 1888 (‘MMC

Act, 1888’), calling upon respondent No. 1 to remove the

purported unauthorized development over the suit premises.

Eventually, speaking orders were passed by the designated

officer on 20th February, 2026 directing respondent No. 1 to

discontinue the use of the notice structures and remove the

unauthorized structures within 15 days, lest action would be


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initiated qua the said structures and respondent No.1.

4.4   Assailing the legality and validity of the said notices and

speaking order, respondent No. 1 instituted LC Suit No. 451 of

2026 against respondent No.2 Municipal Corporation seeking a

declaration that the notices and the speaking orders were

illegal, bad in law, mala fide and void, and the consequential

relief of injunction.

5.    The petitioner took out the Chamber Summons seeking

impleadment in the said suit asserting, inter alia, that

respondent No. 1 - plaintiff has committed encroachment over

the properties which are owned by the petitioner Society. The

respondent No. 1 had instituted the suit by deliberately

suppressing     material   facts    and   without    impleading   the

petitioner as a party defendant.

6.    By the impugned order, the learned Judge, City Civil

Court, was persuaded to dismiss the Chamber Summons,

observing, inter alia, that there was no nexus between the suit

properties and the properties over which title was asserted by

the petitioner, as the survey number of the properties appeared

to be different. Moreover, the legality and validity of the

impugned notices and speaking order could be decided without

impleading the petitioner, and, thus, the latter was not a

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necessary party.

7.   Being aggrieved, the petitioner has preferred this petition.

8.   Mr. Tolat, the learned Counsel for the petitioner, invited

the attention of the Court to the notice under Section 351(1A) of

the MMC Act, 1888, especially the description of the alleged

unauthorized structure. In the said notice, the structure is

stated to be situated at the premises of Raj Garden Society - the

petitioner. Attention of the Court was also invited to the

speaking   order   dated    20th    February,   2026,   wherein   the

designated officer has recorded that all the structures/buildings

were demolished during the construction of Raj Garden Society.

The notice structure was situated on CTS No. 128A/40/2; the

Property Card of which shows Raj Garden CHSL - the petitioner

to be the holder thereof.

9.   Yet, Mr. Tolat would urge, while instituting the suit, the

subject structures were stated to be situated at Survey No. 163

and CTS No. 128/40/1/2 instead of CTS No. 128A/40/1/2. On

account of the difference in the CTS numbers, the learned

Judge, City Civil Court, dismissed the Chamber Summons

without properly examining the issue of the necessity of the

impleadment of the petitioner as a party defendant to the suit.

Mr. Tolat further submitted that by an order dated 1 st

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September, 2026, the Competent Authority has corrected the

survey number from 162 to 163 in the deemed conveyance order

and certificate dated 29th March, 2019.

10.   In opposition to this, Ms. Basrur, the learned Counsel for

respondent No. 1 - plaintiff, would submit that the learned

Judge, City Civil Court, correctly exercised the discretion not to

direct the impleadment of the petitioner as a party defendant to

the suit. Indeed, there is no nexus between the property over

which the petitioner asserts title and the property over which

the subject structures are situated. At any rate, the survey

number came to be corrected by an order dated 1st September,

2026, after the impugned order came to be passed. Therefore, at

this juncture, the petitioner cannot draw any mileage from the

said correction in the survey number of the property in the

order and certificate of deemed conveyance in favour of the

Society, submitted Ms. Basrur.

11.   It is trite, the matter of addition or deletion of a party to

the suit is not one of the initial jurisdiction but that of judicial

discretion. Like in other matters, where such discretion is

required to be exercised, the discretion to add or delete a party

to the suit is required to be exercised keeping in view the object

of the enabling provision. If the Court finds that a party is a

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necessary party, then the impleadment of such a party becomes

imperative, lest the court cannot pass an effective decree. In a

case where the impleadment of a party is sought as a proper

party, then the Court has to pose unto itself a question, as to

whether the presence of such person is warranted for an

effectual and complete adjudication of the dispute, though such

person is not a necessary party.

12.   The distinction between a necessary and a proper party is

well marked. In the case of Kasturi Vs. Iyyamperumal & ors. 1 a

three-Judge Bench of the Supreme Court enunciated that

necessary parties are those persons in whose absence no decree

can be passed by the Court and there must be a right to some

relief against such party in respect of the controversies involved

in the proceedings, and proper parties 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 was

claimed against such person.

13.   In the case of     Ramesh Hirachand Kundanmal Vs.

Municipal Corporation of Greater Bombay & ors. 2, which arose

out of a suit assailing the legality and validity of the action

1     (2005) 6 SCC 733
2     (1992) 2 SCC 524
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initiated by the Municipal Corporation in respect of the suit

premises therein, the Supreme Court enunciated that, the

expression, “whose presence before the Court may be necessary

in order to enable the Court effectually and completely to

adjudicate upon and settle all the questions involved in the suit”

indicates that, the Court is empowered to join a person whose

presence is necessary for the specified purpose and cannot

under the rule direct the addition of a person whose presence is

not necessary for that purpose. If the intervener has a cause of

action against the plaintiff relating to the subject matter of the

existing action, the Court has power to join the intervener so as

to give effect to the primary object of the order which is to avoid

multiplicity of actions.

14.   The Supreme Court further clarified that, it cannot be said

that, the main object of the rule is to prevent multiplicity of

actions though it may incidentally have that effect. But that

appears to be a desirable consequence of the rule rather than

its main objective. The observations in Paragraph No. 14 read as

under:

         “14. It cannot be said that the main object of the rule is
         to prevent multiplicity of actions though it may
         incidentally have that effect. But that appears to be a
         desirable consequence of the rule rather than its main
         objective. The person to be joined must be one whose
         presence is necessary as a party. What makes a person
         a necessary party is not merely that he has relevant
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       evidence to given on some of the questions involved;
       that would only make him a necessary witness. It is not
       merely that he has an interest in the correct solution of
       some question involved and has thought of relevant
       arguments to advance. The only reason which makes it
       necessary to make a person a party to an action is so
       that he should be bound by the result of the action and
       the question to be settled, therefore, must be a question
       in the action which cannot be effectually and completely
       settled unless he is a party. The line has been drawn on
       a wider construction of the rule between the direct
       interest or the legal interest and commercial interest. It
       is, therefore, necessary that the person must be directly
       or legally interested in the action in the answer, i.e., he
       can say that the litigation may lead to a result which
       will affect him legally that is by curtailing his legal
       rights. It is difficult to say that the rule contemplates
       joining as a defendant a person whose only object is to
       prosecute his own cause of action.”……..
                                           (emphasis supplied)

15.   It is well-recognized that where the owner or landlord of

the premises over which the offending structure is stated to be

situated approaches the Court seeking impleadment, ordinarily

the Court shall exercise the discretion to implead such

owner/landlord as a party defendant to the suit wherein the

legality and validity of the action of the Municipal Corporation

in regard to the offending structure is questioned. In such a

situation, the landlord/owner can be said to have a direct

interest in the subject matter of the suit, and not a commercial

interest. The order that may be passed by the Civil Court in

regard to the legality and validity of the notices issued by the

Municipal Corporation and the action sought to be initiated by

the   Municipal    Corporation     qua    the   purported     offending
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structure would affect the rights of the owners/landlord.

16.   A profitable reference, in this context, can be made to a

judgment of a Division Bench of this Court, in the case of

Ashok Babulal Avasthi vs. Munna Nizamuddin Khan and anr. 3,

wherein, on a reference, the Division Bench has held that in a

suit challenging the legality and validity of a notice issued by

the Municipal Corporation instituted by the tenant, the exercise

of discretion by the Court to implead the owners/landlord would

be in consonance with law.          It was enunciated that, where a

landlord applies to become a party to a suit wherein the legality

and validity of a notice issued by the Municipal Corporation is

called in question, the aspect of exercise of discretion under

Order I Rule 10(2) of the Code of Civil Procedure, 1973 crops up

for consideration. This Court has consistently exercised its

discretion for last five decades to allow such a joinder.                This

exercise of discretion has become a well established practice.

The Division Bench concluded as under:


      “32.    Answering the question, we hold that in a suit filed by
      the occupier/ tenant/ licensee seeking to restrain the local
      authority from taking action of demolition against the property,
      where the landlord/ owner of the property seeks impleadment,
      the Court is empowered to permit the same exercising the power
      under Order I Rule 10(2) of Code of Civil Procedure on the
      premise that the landlord/ owner is a proper party. Such a
      direction by the court in this fact situation would be a sound
      exercise of discretion consistent with the long-standing use of

3     2024(2) Mh.L.J. 322.
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      discretion in this manner. Refusal to permit such a joinder by
      not accepting the landlord/owner as a proper party would be an
      improper use of discretion and be liable to be set aside.”
                                                (emphasis supplied)



17.   In the case at hand, the description of the property given

in the impugned notices issued by the Municipal Corporation,

as well as the speaking order, clearly reveals that the alleged

offending structure is situated on the property bearing CTS No.

128A/40 now further subdivided into CTS Nos. 128A/40/1 and

128A/40/2. And those properties belong to Raj Garden Co-

operative Housing Society Limited, the petitioner.

18.   Secondly, the extract of the Property Card of CTS No.

128A/40/2 shows that Raj Garden Co-operative Housing

Society Limited is the holder of the said property. Thirdly, by an

order dated 1st September, 2026, the Competent Authority has

corrected the survey number of the property in respect of the

deemed conveyance order and certificate issued in favour of the

petitioner from 162 to 163. Even the Assistant Registrar of Co-

operative Societies has issued a corrigendum on 22 nd May, 2026

correcting the address of the petitioner Society from Survey No.

162 to 163 in the registration certificate.

19.   In the face of the aforesaid material, the learned Civil

Judge could not have rejected the application for impleadment


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by taking a hyper-technical view of the matter by observing that

the CTS number of the properties over which the petitioner

asserted title and the description of the suit property given in

the plaint appeared to be different. In fact, the very impugned

notices and the speaking order refer to the fact that, the

petitioner Society was the holder of CTS Nos. 128A/40/1 and

128A/40/2 over which the offending structures are allegedly

situated.     The     impleadment      of   the   petitioner   in   the

circumstances of the case appears to be essential for a complete

and effectual adjudication of the disputes between the parties.

Hence, the petition deserves to be allowed.

20.     Thus, the following order:

                            :ORDER:

(i)     The petition stands allowed.

(ii)    The impugned order stands quashed and set aside.

(iii)   The Chamber Summons stands allowed.

(iv)    Respondent No. 1 - plaintiff is directed to implead the

        petitioner as a party defendant to the suit.

(v)     Necessary amendment in the plaint be carried out within

        a period of three weeks, and the amended copy of the

        plaint be served on the petitioner within two weeks

        thereafter.

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(vi)   Rule made absolute in the aforesaid terms.

       No order as to costs.


                                          [N. J. JAMADAR, J.]




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