55-WP-9017-2023.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9017 OF 2023 Ms. Harsha D/o. Vipenkumar … Petitioners Chopra and Others Vs. Municipal Corporation of … Respondents Greater Mumbai and Another Mr. R.V. Sippy for Petitioner no.1. Mr. Santosh Mali i/b. for Respondent No. 1 – BMC. Mr. Wasim Ansari for Respondent No.2. CORAM : GAURI GODSE, J. DATE : 14th NOVEMBER 2025 ORDER : 1. This petition is filed by the plaintiff to challenge the order passed by the trial court permitting the impleadment of respondent no. 2 in the suit filed by the petitioners. The petitioners have filed a suit to challenge the notice issued by the corporation under Section 351 of the Mumbai Municipal Corporation Act, 1888 (“MMC Act”). The respondent is impleaded as a party defendant on the ground that he is the owner of the suit property. 1/9 rrpillai RAJESHWARI RAMESH PILLAI Digitally signed by RAJESHWARI RAMESH PILLAI Date: 2025.11.25 10:55:41 +0530 55-WP-9017-2023.docx 2. Learned counsel for the petitioners objects to the impugned order on the ground that one Jaywant Patil is the owner of the property who has secured a decree for eviction from the Small Causes Court against some third party. In execution of the eviction decree, the petitioners (present plaintiffs) have obstructed, and the obstruction notice is still pending. He further points out that in the property register card relied upon by respondent no.2 to claim ownership, the names have been deleted in view of the entry dated 1st January 2008. He therefore submits that there is a dispute in respect of the title claimed by respondent no.2. Thus, when the title of respondent no. 2 is disputed, he cannot be added as party defendant on the ground that he is the owner of the suit property. 3. Learned counsel for the petitioners submits that in the earlier round of litigation, when the petitioner had filed a suit to challenge the notice under Section 354A of the MMC Act, respondent no. 2 and his mother were added as party defendants. However, they never bothered to file any written statement, and the Section 354A notice was subsequently withdrawn, and the suit was disposed of. He submits that 2/9 55-WP-9017-2023.docx though this court had, in the earlier round of litigation, permitted respondent no. 2 and his mother to be added as party defendant, it was never pointed out to the court that there was a dispute over the title. He therefore submits that when the title is disputed, respondent no. 2 cannot be added as a party defendant in the petitioners’ suit, as he would not be concerned with the suit property. To support his submissions, learned counsels for the petitioners relied upon the following decisions : (i) Aliji Momonji & Co. vs. Lalji Mavji and Others1 (ii) Kasturi vs. Iyyamperumal and Others2 (iii) Mr. Ashok Bansidhar Agarwal vs. The State of Maharashtra and Others3 (iv) Mrs. Sulbha Devendra Kokate vs. Mrs. Surekha Kokate and Others4 4. With reference to the latest decision of the Division Bench of this court in the case of Ashok Babulal Avasthi vs. Munna Nizamuddin Khan and Another5, learned counsel for the petitioners submits that since there was no dispute on the 1 (1996) 5 SCC 379 2 (2005) 6 SCC 733 3 Writ Petition No. 6563 of 2017 4 2022 (1) ALL MR 152 5 2023 : BHC-AS: 35319 3/9 55-WP-9017-2023.docx title of the true owner who was sought to be impleaded, this court held that the owner would be a necessary party. However, in the present case, since there is a serious dispute on the title of respondent no. 2, the legal principles settled by the Division Bench of this court would not be of any assistance to the claim of respondent no. 2. He therefore submits that the impugned order would require interference by this court. 5. Learned counsel for respondent no. 2 supports the impugned order. He submits that the property register card shows the name of respondent no. 2. The subsequent entries show that the earlier entry in the name of respondent no. 2 and his mother is restored. He also placed reliance upon the earlier order passed by this court permitting the addition of respondent no. 2 and his mother as owners of the property in the earlier suit. He therefore submits that the impugned order would not require any interference. 6. I have perused the papers of the petition. The petitioners, in their challenge to the notice under Section 351 of the MMC Act, have not stated their rights in respect of the suit property, namely, whether they are tenants and, if so, 4/9 55-WP-9017-2023.docx who the landlord is. The plaint refers to the petitioners’ right, stating that they are in lawful occupation and possession of the suit premises. Even in their reply to the impleadment application, the petitioners did not raise any contention as to whether they are tenants, or, if so, which landlord they are tenants of. The objection in the reply pertains to the rights claimed by Jaywant Patil, who has filed a suit for eviction in the Small Causes Court. 7. A perusal of the property card, which is on record, shows the name of respondent no. 2 and his mother. The trial court has relied upon the property card and the order passed in the earlier suit for adding respondent no. 2 as a party defendant in the present suit. 8. A reference was made with respect to the difference of opinion between two learned single Judges of this court on the point whether the landlord is a necessary party to the suit filed by the tenant. The Division Bench of this court, while answering the reference, held that though the plaintiff is dominus litis and cannot be forced to add a party to the suit, the owner can be added if found necessary and without whose presence the suit cannot proceed or no relief can be 5/9 55-WP-9017-2023.docx granted. The Division Bench of this court, after referring to various decisions of this court and the Apex Court on the issue of the owner being impleaded as a necessary party held in paragraphs 29 to 32 as under : 29. While discretion inherently implies flexibility and adaptability, a level of predictability emerges if discretion is used in a particular manner, guided by specific considerations. Advocates and litigants then anticipate a particular approach by the court in similar cases. This can offer stability and clarity in how certain matters are handled within the legal system, providing a framework for litigants to understand how the court will likely exercise its discretion in specific circumstances. 30. There is a rationale to the consistent exercise of judicial discretion under Order 1 Rule 10(2) of C.P.C. in allowing the landlord's application for joinder in a tenant's suit in respect of demolition action of the Corporation treating the landlord as a proper party. That is because the impact of a notice for demolition issued by the Corporation extends beyond the tenant to fundamentally affect the property itself. It cannot be said that as a true owner of the property, the landlord holds no interest in any legal dispute regarding authorized or unauthorized construction. The intended action of demolition directly affects the owner of the property or the structure, who has a legitimate entitlement to maintain the identity of the property and integrity, safeguarding it from potential damage. The property occupied by the tenant ultimately belongs to the 6/9 55-WP-9017-2023.docx landlord. The tenant possesses only a derivative title through a lease or license, while the landlord retains full ownership and all reversionary rights upon the lease or license termination. Secondly, the proposed demolition by the Corporation may entail legal entry onto the property to deal with the alleged unauthorized construction. Notices issued by the corporation direct its employees and agents to enter the premises to remove the disputed construction. If the Corporation exercises its legal authority to enter the premises, it would essentially be entering upon the property owned by the landlord. Given these factors, the landlord's legitimate concerns and interests cannot be overlooked or undermined. Thus, if the landlord seeks a joinder, it is appropriate for a proper party to be joined for a comprehensive and equitable resolution of the suit. 31. Therefore, to conclude, it is clear that the decision of the Hon'ble Supreme Court in Mohamed Hussain Shariffi has not deviated from the law laid down in Aliji Momonji, and there is no conflict between these two decisions. The view taken by the learned Single Judge in Deju Salian to the contrary is not correct. The decision of the Single Judge in Nimesh Patel correctly interpreted the decisions of the Supreme Court as having no conflict and followed the decision in Aliji Momonji, and the same is approved. 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 7/9 55-WP-9017-2023.docx 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 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. 9. In view of the well-settled legal principles as discussed above, when a suit is filed restraining the local authority from taking any action of demolition, the landlord/owner of the property, if it seeks impleadment, the court is permitted to add the party in exercise of the power under Order I Rule 10(2) of the CPC. In view of the well-settled legal principles in the latest decision of the Hon’ble Division Bench of this court, I do not find it necessary to discuss the other decisions relied upon by the learned counsel for the petitioner. 10. In view of the facts and circumstances of the present case, as discussed in the above paragraphs, respondent no. 2 is added as a party defendant as a necessary party whose name is entered as the owner in the property register card. In view of the well-settled legal principles and the facts of the present case, no fault can be found in the impugned order. 8/9 55-WP-9017-2023.docx 11. I do not see any illegality or perversity in the impugned order, warranting the exercise of discretionary jurisdiction under Article 227 of the Constitution of India. 12. The Writ Petition is therefore dismissed. [GAURI GODSE, J.] 9/9