Final Order 1

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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
REVIEW APPLICATION NO. 60 OF 2020
IN
MISCELLANEOUS APPLICATION NO. 47 of 2020
IN
LONG CAUSE SUIT NO. 3147 OF 2018
Mr. Devang Dinesh Parmar ].. Plaintiff
V/s
Mr. Sanjay Sharma & Ors. ].. Defendants
CORAM : HIS HONOUR JUDGE
SHIVAJI R. SALUNKHE.
(C.R. No. 12)
DATE : 26th JULY, 2020.
O R D E R
The plaintiff has sought review of the order passed in Misc.
Application 47 of 2020 whereby, his prayer to have access to the terrace
of the building in which he resides, to take sunbath and to do some
waterproofing work has been rejected.
2. The subject matter of dispute in the suit pertains to a
terrace of the building. The plaintiff claims that the defendant No.1 and
2 have carried illegal construction on terrace which is meant for
common use. The defendant No. 1 and 2 denies the case of the plaintiff
contending that the plaintiff has nothing to do with the terrace and, the
same along with the construction thereon is the exclusive property
purchased by them. The dispute has been already resolved by a decree
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in L.C. Suit No. 4666 of 2005 in favour of the defendant No.1 and 2.
The plaintiff has sought to set aside that decree by this suit calling it to
have been obtained by practicing fraud upon him and the Court.
3. The plaintiff has filed Notice of Motion No.493 of 2018
asking the permanent injunction restraining the defendant No.1 and 2
from creating any third party interest on the terrace of the building and
to direct the MCGM to register FIR against the them. The said Notice of
Motion is still pending for hearing.
4. During the pandemic of COVID-19, the plaintiff took out
the Misc. Application No. 47 of 2020 seeking direction to open the
terrace of the building, so that, the old people and children and their
parents can do some physical exercise on the terrace which will
strengthen their immunity level and help them to fight Corona virus and
the plaintiff and other residents can do some waterproofing work to
prevent the leakage during monsoon.
5. After hearing both the sides, it was found that there was no
urgency to take out any such application in the situation of lock-down
because of Corona Virus and it was taken out to achieve the object
which could not be achieved in normal course. It was found that
situation of lock-down is attempted to be used as a tool to have access
to terrace, which otherwise would not be possible unless the suit is tried
and decided in favour of the plaintiff. In the result, by a speaking order
dated 17.06.2020, the said application has been rejected. The plaintiff
has filed this review application seeking review of the said order.
6. The plaintiff has submitted copies of some literature
downloaded from internet regarding naturopathy, importance of
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physical exercise including getting direct sunlight to increase immune
system to fight against Corona Virus. According to the plaintiff, this
Court has not seriously considered the directives of WHO while
deciding the application, by which, the access to terrace was sought to
take sunbath, which is necessary to fight against Corona Virus. It was
observed in the order that the Sun is kind enough to bestow its light
and energy over whole World and it is difficult to know as to why the
plaintiff is seeking source of it only on disputed terrace. During the
course of arguments on this review application, it was tried to get any
plausible answer to his question but the plaintiff was not able to give
any satisfactory answer. Only answer put forward was that the area
where the building is situated is conjested and there is no free and open
area where one can get direct sunlight. This answer cannot be taken as
satisfactory as the person who is in genuine need of sunlight will find its
source anywhere and the terrace cannot be the only place for it.
7. The plaintiff has come with a new case in this application
that the need of taking sunbath on terrace is not his personal goal but
he is pursuing common cause of all the residents in the building.
However, no other residents have come with such claim except own
affidavit of the plaintiff stating names of 15 persons therein supporting
the case of the plaintiff. No such persons have filed any affidavits to that
effect.
8. The Misc. Application No.47 of 2020 was rejected on the
premise that the terrace of the building is the subject matter of the suit
and the defendant No. 1 and 2 have a decree in their favour accepting
their exclusive right and possession. As such, giving access to terrace
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without determining the question of fraud alleged by the plaintiff will
not be possible.
9. As regards alleged waterproofing work, it was observed
that it is the primary duty of the landlord to keep the building in good
and tenantable repairs. If landlord fails after notice to repair, then the
tenants are entitled to carry necessary repairs. No such compliance was
made and therefore, it was found that the plaintiff has not made out a
case for repairs or waterproofing of the building. In the plaint, the
plaintiff has come with a case that the defendant No.5 “Lucy House
Bhadut Mandal” was the landlord and prior to that “H.H. Sardar Syedna
Dawat-E-Hadia Trust” was the landlord. However, as of now the
building is acquired by MHADA and there is no landlord. According to
me, if such is the case, then the plaintiff shall ask MHADA to take steps
regarding the repairs of the building.
10. Under this backdrop, the plaintiff was asked as to where
there is an error apparent on the face of record which would warrant to
invoke review jurisdiction by this Court. The plaintiff submits that the
view as is suggested on facts mentioned in this application, since not
taken, the order is liable to be reviewed.
11. This propels me to come to the question as to when an
order can be reviewed. It is well settled principle of law that the power
of review can be exercised for correction of mistake and not to
substitute a view. As is laid down in Order XLVII of the Code of Civil
Procedure, 1908, the review can be sought on three grounds; first,
when new and important matter not within the knowledge of a party is
discovered which he could not brought to the notice of the court with
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due diligence, second, when there is some mistake or error apparent on
the face of record and third, when there is any other sufficient reason.
12. If this review application is considered on the touchstone of
the legal requirement as stated above, the application is silent on any of
these requirements. The arguments of the plaintiff are mostly on the
merit or demerits of the rival cases and he expects that the Court shall
grant the relief as asked, assuming that the decree assailed in the suit is
fraudulent and the plaintiff has right to use the terrace, which according
to him, is common for all.
13. The defendant No.2 submits that she is being unnecessarily
harassed by the plaintiff in this Covid-19 pandemic, when social life and
even Court working is standstill except urgent work. She submits that
this application be heard and decided without her written reply
considering her oral arguments. She narrates the list of various legal
proceedings initiated by the plaintiff against her and other persons
including public bodies and public officers. According to her, the
plaintiff being practicing advocate, such frivolous proceedings do not
cost him and therefore, he is in habit to file such proceedings regardless
of procedure and provisions. She therefore, urges that exemplary cost
shall be awarded for preventing the abuse of the court procedure and to
prevent him from harassing her.
14. Per contra, the plaintiff submits that the defendant No. 2 is
also a practicing advocate and she is in dominating position to join
hands with other tenants to deprive him from his rights over the
disputed property. He is just exercising his rights lawfully and there is
no question of harassment of the defendant No.2.
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15. It shall be noted that the contents of this application do not
find any of the grounds for invoking review jurisdiction of this Court.
The only fault in the order, according to the plaintiff is that it is passed
against the him and not passed as suggested by him. This approach,
particularly when, the party is an advocate himself requires serious
consideration. The tendency to take the Court procedure as granted
shall be deprecated in time. In fact, the Misc. Application No.47 of 2020
was liable to be rejected with cost. But, considering the fact that both
the plaintiff and the defendant No.2 are practicing advocates residing in
the vicinity of this Court and the defendant No.2 had not claimed any
cost during her arguments, it was not thought fit to award any cost
while rejecting that application. But, it appears that the same has
resulted in abusing the process of the Court.
16. Under this backdrop, it is necessary to make reference to
the recent judgment of the Hon’ble Supreme Court in
Dnyandeo Sabaji
Naik v.
Pradnya Prakash Khadekar1. The Hon'ble Supreme Court dealt
with an issue of filing frivolous litigation only to cause delay and gain
benefit therefrom. It is observed in para 14 thus:
“14. Courts across the legal system—this Court not being an
exception—are choked with litigation. Frivolous and
groundless filings constitute a serious menace to the
administration of justice. They consume time and clog the
infrastructure. Productive resources which should be
deployed in the handling of genuine causes are dissipated in
attending to cases filed only to benefit from delay, by
prolonging dead issues and pursuing worthless causes. No
litigant can have a vested interest in delay. Unfortunately, as
1 (2017) 5 SCC 496
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the present case exemplifies, the process of dispensing justice
is misused by the unscrupulous to the detriment of the
legitimate. The present case is an illustration of how a simple
issue has occupied the time of the courts and of how
successive applications have been filed to prolong the
inevitable. The person in whose favour the balance of justice
lies has in the process been left in the lurch by repeated
attempts to revive a stale issue. This tendency can be curbed
only if courts across the system adopt an institutional
approach that penalizes such behaviour. Liberal access to
justice does not mean access to chaos and indiscipline. A
strong message must be conveyed that courts of justice will
not be allowed to be disrupted by litigative strategies
designed to profit from the delays of the law. Unless
remedial action is taken by all courts here and now our
society will breed a legal culture based on evasion instead of
abidance. It is the duty of every court to firmly deal with
such situations. The imposition of exemplary costs is a
necessary instrument which has to be deployed to weed out,
as well as to prevent the filing of frivolous cases. It is only
then that the courts can set apart time to resolve genuine
causes and answer the concerns of those who are in need of
justice. Imposition of real-time costs is also necessary to
ensure that access to courts is available to citizens with
genuine grievances. Otherwise, the doors would be shut to
legitimate causes simply by the weight of undeserving cases
which flood the system. Such a situation cannot be allowed
to come to pass. Hence, it is not merely a matter of
discretion but a duty and obligation cast upon all courts to
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ensure that the legal system is not exploited by those who
use the forms of the law to defeat or delay justice. We
commend all courts to deal with frivolous filings in the same
manner."
17. Thus, it is the command of the Apex Court to deal with the
application like this in the same manner as directed in the said
judgment. There is absolutely no doubt that this application is frivolous
in nature, inasmuch as it is filed without considering its scope. It is filed
as the immediate reaction against the unfavorable order. It is filed so
casually even without considering whether review would be
maintainable or not. Under such circumstance, I hold that this
application is not only devoid of merit but frivolous in nature. It is
therefore, liable to be rejected with exemplary cost which shall be
quantified, looking to the circumstances, at Rs. 10,000 (Rupees Ten
Thousand only). Hence the order.
O R D E R
1. Review Application No. 60 of 2020 is rejected with
cost of Rs.10,000/- (Rupees Ten Thousand only).
2. Further proceedings in the suit shall be subject to
payment or deposit in Court the awarded cost.
(SHIVAJI. R. SALUNKHE)
Judge,
City Civil Court,
Date: 26/07/2020. Gr. Bombay.
Dictated on : 26/07/2020
Transcribed on : 26/07/2020
Signed on : 26/07/2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26/07/2020 At 12.45 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
26/07/2020
Judgment/Order signed by P.O. on 26/07/2020
Judgment/Order uploaded on 26/07/2020
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