Case Note & Summary
The Petitioner, Dattatraya Ramchandra Chavan, a senior citizen and member of Neel Gangan Co-operative Housing Society Limited, filed a Chamber Summons in a pending suit seeking to be joined as a defendant. The suit was filed by Respondent No.1, G. Jaykumar, against the Municipal Corporation of Greater Mumbai (MCGM), challenging a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, and a Speaking Order dated 23rd February 2020. The Petitioner alleged that the Plaintiff had made unauthorized constructions, including amalgamation of two flats, construction of Otla in the common passage, and encroachment in the society's office premises. The Petitioner had previously complained to the MCGM, which led to the impugned notice and order. The trial court dismissed the Chamber Summons on 30th July 2024, observing that the Petitioner failed to show how he was affected. The High Court allowed the writ petition, setting aside the trial court's order. The Court held that the Petitioner's presence was necessary for effective and complete adjudication under Order I Rule 10(2) CPC, as the alleged encroachments affected his individual rights as a member of the society. The trial court had erroneously conflated the test for impleadment with the merits of the Petitioner's claim. The Court directed the Plaintiff to join the Petitioner as a defendant in the suit.
Headnote
A) Civil Procedure - Impleadment - Order I Rule 10(2) CPC - Proper or Necessary Party - A member of a co-operative society sought impleadment in a suit filed by another member against the Municipal Corporation challenging notices under Section 351 of the MMC Act, 1888. The Court held that the member's presence was necessary for effective and complete adjudication as the alleged unauthorized construction (Otla in common passage, encroachment in office premises) affected his individual rights as a member, even though the society was not a party. The trial court erred in mixing merits with the test for impleadment. (Paras 5, 10, 14-16).
Issue of Consideration
Whether a member of a Co-operative Society can seek impleadment in a Suit filed by another member against the Local Authority when the Society is not a party Defendant.
Final Decision
The Writ Petition is allowed. The order dated 30th July 2024 passed by the Judge, City Civil Court, Borivali Division, Dindoshi, Mumbai on Chamber Summons No.448 of 2020 is set aside. The Chamber Summons is allowed in terms of prayer clause (a). Respondent No.1-Plaintiff is directed to join the Petitioner as a defendant in the suit.
Law Points
- Order I Rule 10(2) CPC
- proper party
- necessary party
- impleadment
- member of co-operative society
- locus standi
- individual right
Case Details
2024 LawText (BOM) (11) 184
Writ Petition No.15378 of 2024
Mr. S.N. Chandrachud i/b. Mr. Hemant P. Ghadigaonkar a/w Mr. Hitendra Gandhi for Petitioner; Mr. Kunal Bhanage i/b. Mr. Akshay Pawar for Respondent No.1
Dattatraya Ramchandra Chavan
G. Jaykumar and Municipal Corporation for Greater Mumbai
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Nature of Litigation
Civil writ petition challenging dismissal of chamber summons for impleadment in a suit challenging municipal notices.
Remedy Sought
Petitioner sought to be joined as a defendant in the suit filed by Respondent No.1 against the Municipal Corporation.
Filing Reason
Petitioner, a member of the co-operative society, alleged that the Plaintiff's unauthorized constructions affected his rights and that his presence was necessary for effective adjudication.
Previous Decisions
The trial court dismissed the Chamber Summons on 30th July 2024, holding that the Petitioner failed to show how he was affected.
Issues
Whether a member of a co-operative society can seek impleadment in a suit filed by another member against the local authority when the society is not a party defendant.
Whether the trial court erred in dismissing the chamber summons by mixing merits with the test for impleadment under Order I Rule 10(2) CPC.
Submissions/Arguments
Petitioner argued that all action by the Corporation was at his behest, he had filed a writ petition earlier, and the trial court wrongly observed on merits.
Respondent No.1 argued that the Petitioner's affidavit did not show how he was affected, did not satisfy Order I Rule 10(2) tests, and relied on Ashok Babulal Avasthi v. Munna Nizamuddin Khan.
Ratio Decidendi
A member of a co-operative society has an individual right to use common areas and can be impleaded as a proper or necessary party under Order I Rule 10(2) CPC in a suit challenging municipal action against alleged unauthorized construction, even if the society is not a party. The test for impleadment is whether the person's presence is necessary for effective and complete adjudication, not the merits of his claim.
Judgment Excerpts
The only issue involved in this Petition is, 'whether a member of a Co-operative Society can seek an impleadment in a Suit filed by another member against the Local Authority when the Society is not a party Defendant'.
If, there are allegations against the member of constructing Otla in common passage and encroaching the Office premises, no doubt, other member is having every right to make a grievance if his rights as a member are affected.
The trial Court was wrong in observing that the Petitioner has failed to produce any document which will show how harm is going to cause. The trial Court has mixed up two issues.
Procedural History
The Petitioner filed Chamber Summons No.448 of 2020 in a pending suit (details not specified) seeking impleadment. The trial court dismissed it on 30th July 2024. The Petitioner then filed the present Writ Petition challenging that dismissal.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order I, Rule 10(2)
- Mumbai Municipal Corporation Act, 1888 (MMC Act): Section 351
- Maharashtra Co-operative Societies Act, 1960 (MCS Act):
