Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 455/19(Suit 1273/16)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.455/2019
(CNR No.MHCC010011432019)
IN
S.C. SUIT NO.1273/2016
Smt. Roohi Rajendra Gurav ..Plaintiff
V/s.
1. Manisha Manohar Warik
2. Milind Manohar Warik
3. Vivek Yashwant Sakhale
4. Valencia Towers “B” Wing CHS Ltd. ..Defendants
Appearance:
Adv. Mr. Andrews for plaintiff.
Adv. Mr. Ghadigaonkar for defendants no.1 to 3.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 22.11.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of Milind Manohar Warik (defendant no.2) in the suit. To oppose the
Motion, the plaintiff has relied upon affidavit in reply sworn by the
plaintiff Smt. Roohi Rajendra Gurav and pleadings in the plaint and
documents filed on record, along with plaint. The defendant no.2 has
also filed rejoinder to the reply filed by the plaintiff.
2. I have heard Ld. Counsel Mr Ghadigaokar on behalf of the
defendant no.2 and Mr. Andrews for the plaintiff at length.
3. In view of pleadings of the parties made in the plaint and
submissions made before the court, following points arise for
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determination and I have recorded my findings against them for the
reasons as under:
POINTS :
1. Whether the plaint in this case is liable to be returned
to the plaintiff for its presentation before proper court
under Order 7 Rule 10 of CPC?
2. Before passing any order on this Motion, is it necessary
for this court to frame preliminary issues regarding
jurisdiction of this Court ?
3. What order ?
FINDINGS :
1. No.
2. No.
3. As per final order.
REASONS
AS TO POINTS NO.1 and 2 :
4. In the course of submissions, Ld. Counsel for defendant
no.2 referred to averments made in the Motion supported by an
affidavit of defendant no.2. Ld. Counsel for defendant no.2 took me
through the various reliefs sought in the plaint by the plaintiff as quoted
in Motion as well as relevant portions of the plaint covering the
pleadings in respect of leave and license agreement dated 1.10.2009
(Exh.K), filed with the plaint and submitted that, in view of above leave
and license agreement, the defendant no.2 was occupying the suit
premises as licensee and therefore, it is only Small Causes Court which
has jurisdiction to try and decide the suit. This court has no jurisdiction
to adjudicate the plaintiff's claim in the present suit as the same is
barred by the provisions of Sec.33 r/w. Sec.38 ChapterVII under
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Provincial Small Causes Court Act. It is submitted that, as per Sec.47 of
the said Act, it is expressly provided that, no Civil Court shall have
jurisdiction in respect of any matter which the competent authority or
the State Government or an officer authorized or empowered by or
under this Act to decide the matter and no injunction shall be granted
by any court or any authority in respect of the matter, which is subject
matter of adjudication by competent authority. Chapter VIII of
Maharashtra Rent Control Act specifically provides the powers to decide
the dispute in respect of the leave and license agreement and therefore
this court has no jurisdiction to entertain the present suit. Therefore the
plaint is liable to be returned under Order 7 Rule 10 of CPC to be
presented before proper Court/ forum.
5. Ld. Counsel for the plaintiff has strongly opposed the
Motion and relied on the affidavit filed by the plaintiff Smt. Roohi
Gurav in reply to the Motion. It is submitted that, the Motion taken out
by the defendant no.2 is frivolous and without any substance.
Defendants no.1 and 2 have no any right, title and interest in respect of
the suit premises. It is further submitted that, the contentions made by
defendant no.2 in the Motion are not legally and factually correct. It is
submitted that, the competent civil court is having exclusive jurisdiction
to decide the question of title and dispute relating to the question of
ownership and title and therefore, this court has exclusive jurisdiction
to try and decide the same. The plaintiff has not approached this court
with a dispute in respect licensor and licensee at all. These facts relating
to the agreement have been stated by the plaintiff in the plaint merely
as a background of the case. Therefore, bar u/s. 47 of the said Act is not
attracted. Under the above circumstances, the submissions made by Ld.
Counsel for the defendant no.2 that, the plaint is liable to be returned
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under Order 7 Rule 10 of CPC, is not tenable and the Motion is liable to
be dismissed. It is lastly submitted that, the plaintiff has approached this
Court with a prayer clause(a) regarding declaration of ownership of the
plaintiff and for granting of such relief Small Causes Court has no
jurisdiction at all. Similarly, prayer clause(b) is in respect of declaration
that defendants no.1 and 2 have no right, title and interest in the suit
premises and prayer clause(c) is for cancellation of deed/ document
executed by deceased mother of the plaintiff (Ex.N) and prayer
clause(g) is for possession, and other prayers etc. Hence, it is
competent Civil Court which has jurisdiction to try the present suit and
therefore, it is also not necessary to frame preliminary issue regarding
jurisdiction of this court.
6. In support of his submission, Ld. Counsel for the defendant
no.2 has placed reliance on the following authorities of Hon'ble Apex
Court and Hon'ble Bombay High Court in support of his submission :
1. Prabhudas Damodar Kotecha & Ors. V/s.
Manhabala Jeram Damodar & Anr. (2013 AIR
(SC) 2959).
2. Sushila J. Tiwari and others (Smt.) V/s.
Assistant Commissioner, F/North Ward, MCGM,
Mumbai and others (2017 DGLS(Bom.)1
(Bombay High Court) = 2017 (6) ALL MR 358.
7. I have gone through the above authorities and taken in to
consideration ratio laid down by the Hon'ble Apex Court and Hon'ble
Bombay High Court which has recently considered the ratio of Hon'ble
Apex Court in the cases of (1) Dhulabhai V/s. State of M.P. (AIR 1969
SC 78), (2) Tulsiwadi Navnirman Coop. Housing Society Ltd. &
Anr. V/s. State of Maharashtra & Ors. (2007(6) Mh.L.J 851) and (3)
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M.P. Electricity Board, Jabalpur V/s. Vijaya Timber Co., (AIR 1997
SC 2364). Ld. Counsel for the defendant no.1 has also produced
relevant provisions of The Maharashtra Rent Control Act, 1999 (Section
24) and Section 41 of Small Causes Court Act relating to recovery of
possession of certain immoveable property and certain license fees and
rent etc.
8. I have examined the ratio of above authorities and
considered the statutory provisions. It can be seen that in the authority
at Sr. No.1 in the case of Prabhudas Damodar Kotecha & Ors. V/s.
Manhabala Jeram Damodar & Anr. (supra) that, Hon'ble Apex Court
has dealt with the issue of jurisdiction of Small Causes Court under
Provincial Small Causes Court Act and City Civil Court and considered
various important legal issues, including adjudication of rights of
licensor and licensee as well as gratuitous licensee, golden rules of
interpretation and construction, one umbrella policy of legislature and
made reference to earlier decision of Hon'ble Apex Court in the case of
Mansukhlal Dhanraj Jain V/s. Eknath Vithal Ogale ((1995) 2 SCC
665(SC)), wherein Hon'ble Apex Court has laid down the conditions
which must be satisfied before civil court for taking view that
jurisdiction of competent civil court is ousted. These conditions are as
under :
(i) It must be a suit or proceedings between the licensee
and the licensor, or
(ii) between landlord and tenant;
(iii) such a suit or proceedings must relate to the recovery of
possession of any property situated in Greater Mumbai
or
(iv) relating to recovery of the licence fee or charge or rent
thereof
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In the above case it was held that, if conditions no.1 and 3
are satisfied then Small Causes Court will have jurisdiction to entertain
the suit.
9. In the second authority, Hon'ble Bombay High Court has
considered a case involving the issue of jurisdiction. The suit was for
declaration and injunction. The case was involving bar of jurisdiction
u/s.42 of Maharashtra Slum Areas Act, 1971 and u/s.149 of the
Maharashtra Regional and Town Planning Act, 1966, and u/s. 164 of
the Maharashtra Cooperative Societies Act. This court had framed
issues as to the jurisdiction of the court without satisfying the ground of
bar of jurisdiction and therefore, it was held that, the issue framed by
the court as a preliminary issue was vague and not as per guidelines
given by the Hon'ble Apex Court in the case of Tulsiwadi Navnirman
Coop. Housing Society Ltd. & Anr. V/s. State of Maharashtra & Ors.
(Full Bench) (supra). This court had passed an order directing return of
the plaint to be presented before proper forum. That order was held
defective and matter was remanded back to this court with certain
directions to frame appropriate preliminary issues and decide the same.
10. After going through the ratio of the above authorities and
pleadings of the plaintiff in the plaint as well as prayer clauses, it can be
seen that the present suit filed by the plaintiff is for declaration as to
illegality and binding force of deed or document and for recovery of
possession on the ground that defendants no.1 and 2 are trespassers
and for mandatory injunction etc. The contentions made by Ld.
Counsel for the defendant no.2 in the Motion are regarding bar of
jurisdiction, which at the most can fall under the provisions of Order 7
Rule 11 (d) of CPC. The grounds raised in the supporting affidavit along
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with the Motion, do not make out case in favour of the plaintiff under
Order 7 Rule 10 of CPC, as in the present case, it is nobody's case that
the suit claim suffers from inherent lack of jurisdiction. Therefore, as
regards point no.1, I hold that the defendant no.2 has failed to make
out a case for return of the plaint under Order 7 Rule 10 of CPC, as
prayed in the Motion.
11. So far as point no.2 is concerned, now question arises
whether before passing any order on the present Motion, is it necessary
for this Court to frame preliminary issue regarding jurisdiction of the
Court?. Considering the ratio of the authorities cited above and settled
legal position, I am of the opinion that, for deciding present Motion, it is
not necessary to frame preliminary issue. However, when the court will
frame issues in the suit, the issue as to the jurisdiction of this court can
be framed shall be framed and same can be considered and decided
under Order 14 Rule 2 of CPC as a 'preliminary issue' by offering both
the parties an opportunity to lead documentary and oral evidence on
the preliminary issue. Hence, points no.1 and 2 are answered in
negative with the following order :
ORDER
1. Notice of Motion No.455/2019 is hereby dismissed as
not tenable in law.
2. It is held that, defendant no.2 has failed to make out a
case of inherent lack of jurisdiction in this court.
3. Suit shall proceed for further trial and disposal according
to law.
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Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 22.11.2019 Gr. Bombay (C.R. 03)
Dictated on :22.11.2019
Typed on : 23.11.2019
Draft given to HHJ on 23.11.2019
Signed by HHJ on : 23.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 23.11.19
TIME: 5.20 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 22.11.19
Judgment/ order signed by P.O on 23.11.19
Judgment/ order uploaded on 23.11.19
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