Final Order 1

Order Details: Other
Pdf Text: Review Petition No.125/2019 ..1.. (Disp.of) L.C. Suit (St) No.4216/2019
MHCC01-004614-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
REVIEW PETITION NO. 125 OF 2019
(CNR NO. : MHCC01-004614-2019)
IN
L.C. SUIT (ST) NO. 4216 OF 2019 (DISP. OF)
Salahuddin Zainulabdin Shaikh )
Adult Indian Inhabitant, )
Occupation : Business having his )
address at Shop No.4, Oza Chawl, )
Plot No.58, Rafi Ahmed Kidwai Marg, )
Sewree Mumbai – 400 015 )….Applicant
IN THE MATTER BETWEEN :-
Salahuddin Zainulabdin Shaikh, )
Adult Indian Inhabitant, )
Occupation : Business, having his )
address at Shop No.4, Oza Chawl, )
Plot No.58, Rafi Ahmed Kidwai Marg, )
Sewree Mumbai – 400 015 )….Plaintiff
V/s.
1. Administrative Officer (Estates), )
‘F South’ Ward, 2nd floor, Municipal )
Office Building Jagganath Bhatankar )
Marg & Dr. B.A. Road, Junction, )
Parel Naka, Mumbai – 400 012 )
2. Municipal Corporation of Gr. Mumbai )
through its Commissioner, a Body )
corporate constituted under the provisions )
of Mumbai Municipal Corporation )
-- 1 of 15 --
Review Petition No.125/2019 ..2.. (Disp.of) L.C. Suit (St) No.4216/2019
Act, 1888 having its registered address )
at Mahapalika Marg, Opp. C.S.T. Fort, )
Mumbai – 400 001. )….Defendants
APPEARANCE:-
Ld. Adv. Suraj Kudalkar for the plaintiff/Applicant
Ld. Counsel Dharmesh K. Vyas for the defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 5th FEBRUARY, 2021.
O R D E R
This review petition is filed by plaintiff praying to review
the order passed by my predecessor in office dated 08.04.2019 and
restore L.C. Suit No.4216/2019.
2. In the affidavit filed in support of the review petition, it is
averred by applicant that plaintiff had filed the L.C. Suit No.4216/2019
for declaration that plaintiff applicant is lawful tenant in suit premises
and to quash and set aside the impugned notice dated 29.03.2019 as
same being illegal and not binding upon plaintiff. On 08.04.2019, the
officer of defendants BMC along with their advocate were present in
court. The officer of defendants BMC Shri. Nangare, the rent supervisor
of defendant No.2 made a statement in court that defendant will follow
due process of law as envisaged u/sec.105B of MMC Act. Therefore, the
apprehension of plaintiff applicant with respect to impugned notice was
taken care of. However, to utter surprise of plaintiff, the learned court
had disposed of not only the notice of motion but also the suit without
adjudicating upon the prayer clause (a) and (b) of the plaint. Plaintiff is
therefore, precluded from adjudication of his relief with respect to
illegal termination of tenancy right. Plaintiff therefore, wants
adjudication of validity of notice dated 29.03.2019. As his suit was
-- 2 of 15 --
Review Petition No.125/2019 ..3.. (Disp.of) L.C. Suit (St) No.4216/2019
disposed of, he is aggrieved and therefore, moved present review
petition.
3. Respondent BMC has denied all the averments in the
review petition except those which are specifically admitted by them.
According to respondent BMC, the review petition is not tenable as it
does not fulfill the conditions mentioned in Order 47 Rule 3 of CPC.
According to respondent BMC, this review petition is filed to prolong
the matter. Plaintiff is no more the lawful tenant of respondent BMC as
her tenancy rights have been terminated by the sanction of Deputy
Municipal Commissioner Zone-II dated 13.03.2019. The Chapter-V of
MMC Act, 1988 has elaborate procedure for taking action against
unauthorized occupants on the land belonging to MCGM. The officer of
the BMC had made fair statement before Hon'ble Court that MCGM will
follow due process of law as envisaged u/sec.105 (B) of MMC Act. It is
further contended that plaintiff will be given full opportunity to defend
her case and produce all documents. The order passed by the court on
08.04.2019 is fair, just and reasonable order. Further, the order dated
08.04.2019 is appealable order. Plaintiff will get full opportunity to
defend her case after the issuance of notice u/sec.105 (B) of MMC Act.
Plaintiff also will get opportunity to cross examine the officer of MCGM
so also to examine her own witnesses and bring on record the material
relied upon by her. Elaborate procedure is provided in the law which
will entitled to plaintiff to defend her case. Therefore, the review
application moved by plaintiff applicant is not maintainable and
deserves to be dismissed.
4. I have heard both the learned advocates at length. Learned
advocate for plaintiff applicant has argued in lines of review petition
-- 3 of 15 --
Review Petition No.125/2019 ..4.. (Disp.of) L.C. Suit (St) No.4216/2019
and relied upon the observations in
IVP Limited V/s. IVP Limited
workers Union and Anr. reported in 2010 (3) Bombay C.R. 203, Arun
V/s. Apurva decided by Madhya Pradesh High Court on 24.04.2017,
Nathu Yeshwantrao Bhusari since decease by LR's and others V/s.
Sonabai wd/o Jagannath Ganar and others reported in 1994 Mh.L.J
1829.
5. Per contra, learned Advocate for respondent MCGM has
argued in lines of reply filed by MCGM and further relied upon the
observations in the case of
Kamlesh Varma V/s. Mayavati and others
reported in AIR 2013 Supreme Court 3301, and Bibi Batool and Ors
V/s. The Principal Judge, City Civil reported in AIR 1972 Bom 254.
6. I have anxious consideration to arguments of both the
learned advocates. Perused the proceeding and the documents tendered
on record, so also the citations relied upon by both sides. A very short
question involved in present review petition is that whether the order
passed by my predecessor in office on 08.04.2019 can be subject of
review.
7. The provisions of review is found in Sec.114 and Order 47
Rule – 1 of CPC.
Sec. 114 reads as follows -
114. Review – Subject as aforesaid, any person considering
himself aggrieved, -
(a) by a decree or order from which an appeal is allowed by
this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by
this Code, or
(c) by a decision on a reference from a Court or Small Causes,
may apply for a review of judgment to the Court which passed
the decree or made the order, and the Court may make such
order thereon as it thinks fit.
…..Emphasis supplied
-- 4 of 15 --
Review Petition No.125/2019 ..5.. (Disp.of) L.C. Suit (St) No.4216/2019
Order 47 Rule 1 reads as follows -
1. Application for review of judgment – (1) Any person considering
himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and
who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within his
knowledge or could not be produced by him at the time when the
decree was passed or order made, or on account of some mistake or
error apparent on the face of the record, or for any other sufficient
reason, desires to obtain a review of the decree passed or order made
against him, may apply for a review of judgment to the Court which
passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for
a review of judgment notwithstanding the pendency of an appeal by
some other party except where the ground of such appeal is common
to the applicant and the appellant, or when, being respondent he can
present to the Appellate Court the case on which he applies for the
review.
…..Emphasis supplied
8. Before adverting to the discussion in present case, it is
appropriate to quote the observations in the cited cases relied upon by
both the sides.
9. It is observed in the case of
IVP Limited relied upon by
learned advocate for plaintiff that -
“even when any other sufficient reason is shown to
the satisfaction of the Court which would satisfy the
review of the order, review can be given”
10. It is observed in the case of
Nathu Yeshwantrao Bhusari
relied upon by plaintiff that -
An erroneous view or erroneous judgment is not a
ground of review, but the judgment or order which
completely ignores a positive rule of law and the error
is so patent that it admits of no doubt or dispute, such
a error must be corrected in the review”
11. It is observed in the case of
Kamlesh Verma relied upon by
-- 5 of 15 --
Review Petition No.125/2019 ..6.. (Disp.of) L.C. Suit (St) No.4216/2019
learned advocate for defendant that -
“The jurisdiction and scope of review is not that of an appeal
and it can be entertained only if there is an error apparent on
the face of the record. An error which is not self – evident and
has to be detected by a process of reasoning can hardly be said
to be an error apparent on the face of the record justifying the
Court to exercise its power of review. A review is by no means
an appeal in disguise whereby an erroneous decision is re-heard
and corrected, but lies only for patent error. Error contemplated
under the rule must be such which is apparent on the face of
the record and not an error which has to be fished out and
searched. It must be an error of inadvertence. The power of
review can be exercised for correction of a mistake but not to
substitute a view. The mere possibility of two views on the
subject is not a ground for review. Review proceedings are not
by way of an appeal and have to be strictly confined to the
scope and ambit of Order XLVII Rule 1 of CPC. In view of
jurisdiction, mere disagreement with the view of the judgment
cannot be the ground for invoking the same. As long us as the
point is already dealt with and answered, the parties are not
entitled to challenge the impugned judgment in the guise that
an alternative view is possible under the review jurisdiction”
12. If all the observations in the aforesaid citations are taken
into account the legal position which emerges is as follows - The
jurisdiction and scope of review is not that of an appeal and it can be
entertained only if there is an error apparent on the face of the record.
An error which is not self – evident and has to be detected by a process
of reasoning can hardly be said to be an error apparent on the face of
the record justifying the Court to exercise its power of review. A review
is by no means an appeal in disguise whereby an erroneous decision is
re-heard and corrected, but lies only for patent error. Error
contemplated under the rule must be such which is apparent on the face
of the record and not an error which has to be fished out and searched.
It must be an error of inadvertence. The power of review can be
exercised for correction of a mistake but not to substitute a view. The
mere possibility of two views on the subject is not a ground for review.
Mere disagreement with the view of the judgment cannot be the ground
for invoking the same. As long us as the point is already dealt with and
-- 6 of 15 --
Review Petition No.125/2019 ..7.. (Disp.of) L.C. Suit (St) No.4216/2019
answered, the parties are not entitled to challenge the impugned
judgment in the guise that an alternative view is possible under the
review jurisdiction. An erroneous view or erroneous judgment is not a
ground of review.
13. In light of aforesaid legal position, it needs to be seen as to
whether in present case there is any error or mistake apparent on face
of record to invoke powers under Order 47 Rule 1 of CPC.
14. Coming to the pleadings in the petition, the plaintiff
applicant has pleaded in paragraph-3 that to his absolute surprise, the
court was pleased to dispose of the above mentioned suit along with the
notice of motion without adjudicating upon prayer clauses (a) and (b)
of the plaint. It is further pleaded that the statement of the officer
Mr. Nangare of BMC did not provide any relief with regard to illegal
termination of his tenancy right. Therefore, according to him, only
notice of motion could be disposed of and not the suit in the light of
statement of the BMC. Further, in paragraph-5 it is pleaded that if the
reliefs as prayed in petition is not given to him, the same will be treated
as dismissed without hearing on merits.
15. Except the averments in the petition, there are no other
grounds pleaded in the petition for invoking the powers of review. What
I want to highlight is that there is not a single whisper that inadvertent
error or mistake which is glaring on the face of record crept in the
impugned order dated 08.04.2019 is pleaded. If plaintiff wants to
invoke the powers of review, as discussed in aforesaid legal position,
plaintiff has to plead and show that there was inadvertent error or
mistake apparent on face of record. However, there is no such whisper
-- 7 of 15 --
Review Petition No.125/2019 ..8.. (Disp.of) L.C. Suit (St) No.4216/2019
in the entire petition on this essential requisite of Order – 47 Rule-1 of
CPC.
16. The L.C. Suit (St) No.4216/2019 was filed by plaintiff for
declaration that she is lawful tenant in suit premises and to quash and
set aside the impugned notice dated 29.03.2019. The impugned notice
dated 29.03.2019 was issued for vacating the suit premises by
terminating the tenancy by Administrative Officer (Estate) Department.
Plaintiff had therefore, filed the aforesaid L.C. Suit for declaration of his
tenancy right and the legality of the impugned notice.
17. During the pendency of the suit when the officer Mr. Sushil
Nangare (Rent supervisor F/S Ward) had made statement before the
court that corporation will follow due process of law as envisaged
u/sec.105 (B) of MMC Act, my predecessor in office had accepted the
aforesaid statement and disposed of the draft NM and suit. It is
important to note that the aforesaid order was passed by court in
presence of learned advocate for plaintiff, defendant and the aforesaid
officer Mr. Sushil Nangare. On perusal of this order, it clearly reflects
that my predecessor in office had applied mind to the statement given
by the aforesaid officer Mr. Sushil Nangare of BMC and then had passed
the impugned order dated 08.04.2019.
18. Sec.105 (B) reads as follows -
“105B. Power to evict person from Corporation premises - (1)
Where the Commissioner is satisfied -
(a) that the person authorised to occupy any corporation
premises has, whether before or after the commencement of the
Bombay Municipal Corporation (Amendment) Act, 1960,
(i) not paid for a period of more than two months, (the
rent, taxes, fees or compensation) lawfully due from him in
respect of such premises ; or
-- 8 of 15 --
Review Petition No.125/2019 ..9.. (Disp.of) L.C. Suit (St) No.4216/2019
(ii) sub let, * * * the whole or any part of such premises;
or
(iii) committed, or it is committing, such acts of waste
as are likely to diminish materially the value, or impair
substantially the utility, of the premises; or
(iv) otherwise acted in contravention of any of the terms,
express or implied under which he is authorised to occupy such
premises;
(b) that any person is in unauthorised occupation of any
corporation premises;
(c) hat any corporation premises in the occupation of any are
required by the corporation in the public interest.
The commissioner may notwithstanding anything contained in
any law for the time being in force, by notice (served by post, or
by affixing a copy of it on the outer door or some other
conspicuous part of such premises,or in such other manner as
may be provided for by regulations), order that person, as well
as any other person who may be in occupation of the whole or
any part of the premise, shall vacate them within one month of
the date of the service of the notice.
(2) Before an order under sub-section-(1) is made against any
person, the Commissioner shall issue, in the manner hereinafter
provided, a notice in writing calling upon all persons concerned
to show cause why an order of eviction should not be made.
The notice shall -----
(a) specify the grounds on which the order of eviction is
proposed to be made, and
(b) require all persons concerned, that is to say, all persons who
are may be in occupation of, or claim interest in, the corporation
premises, to show cause against the proposed order, on or
before such date is specified in the notice.
If such person makes an application to the Commissioner for the
extension of the period specified in the notice, the
Commissioner may grant the same on such terms as to payment
and recovery of the amount claimed in the notice, as he deems
fit.
Any written statement put in any person an documents
produced, in pursuance of the notice, shall be filed with the
record of the case, and such person shall be entitled to appear
before the Commissioner by advocate, attorney or pleader.
The notice to be served under this sub-section shall be served in
the manner provided for the service of a notice under sub-
section (1); and thereupon, the notice shall be deemed to ave
been duly given to all persons concerned.
-- 9 of 15 --
Review Petition No.125/2019 ..10.. (Disp.of) L.C. Suit (St) No.4216/2019
(3) If any person refuses or fails to comply with an order made
under sub-section (1), the Commissioner may evict that person
and any other person who obstructs him and take possession of
the premises; and may for that purpose use such force as may be
necessary.
(4) The Commissioner may, after giving fourteen clear days
notice to the person from whom possession of the corporation
premises has been taken under sub-section (3) and after
publishing such notice in the official Gazette and in at least one
newspaper circulating in the locality, remove or cause to be
removed, or dispose of by public auction any property
remaining on such premises. Such notice shall be served in the
manner provided for the service of a notice under sub-section
(1).
(5) Where the property is sold under sub-section (4), the sale-
proceeds shall, after deducting the expenses of sale, be paid to
such person or persons as may appear to the Commissioner to
be entitled to the same :
Provided that, where the Commissioner is unable to decide as to
the person or persons to whom the balance of the amount is
payable or as to the apportionment of the same, he shall refer
such dispute to a civil court of competent jurisdiction, and the
decision of the court thereon shall be final.
(6) If a person, who has been ordered to vacate any premises
under sub-clause (I) or (iv) of clause (a) of sub-section (1),
within one month of the date of service of the notice, or such
longer time as the Commissioner may allow, pays to the
Commissioner the rent and taxes in arrears, or as the case may
be,carries out or otherwise complies with the terms contravened
by him to the satisfaction of the Commissioner, the
Commissioner shall on such terms, if any (including the
payment of any sum by way of damages or compensation for the
contravention aforesaid), in lieu of evicting such person under
sub-section (2), cancel his order made under sub-section (1);
and thereupon such person shall continue to hold the premises
on the same terms on which he held them immediately before
such notice was served on him.
19. Vide aforesaid provision, the commissioner under MMC Act
is given wide powers to decide the occupation of the person in
possession of premises of corporation to be authorized or unauthorized,
terminate the tenancy for breach of terms of conditions of tenancy and
clauses - (i) to (iv) and pass orders of eviction. The commissioner
u/sec.105 (e) is given the same powers as are vested in the Civil Court
-- 10 of 15 --
Review Petition No.125/2019 ..11.. (Disp.of) L.C. Suit (St) No.4216/2019
under CPC. The right to lead evidence of the witnesses on behalf of
corporation, the cross examination of said witnesses by plaintiff as well
as right to lead evidence on behalf of the tenant i.e. plaintiff, his
witnesses and their cross examination and arguments are all provided.
The orders passed are also further appealable u/sec.105 (F) before
Principal Judge of City Civil Court and thereafter, before single bench of
Hon’ble High Court by filing either revision or writ petition & thereafter,
by way of SLP before Hon’ble Supreme Court as is rightly pointed out
by learned advocate for defendant BMC. Therefore, the grievances of
the plaintiff can be redressed under the aforesaid provisions of the MMC
Act. As is observed in cited case of
Bibi Batool & Ors relied upon by
learned advocate for defendant BMC, the powers conferred upon
Commissioner u/sec. 105 (B) of MMC Act are discretionary or optional.
It is observed in paragraph-18 that -
“
There is no dispute that Section 105-B confers upon the
Commissioner a discretion or option to select between two
procedures. The two procedures i.e. one under general law &
followed in ordinary courts of law and second alternative
procedure under Chapter-V of MMC Act being alternative and
substitutive”
20. Keeping these provisions in mind, it appears that my
predecessor in office had disposed of the suit and notice of motion
when the officer made the statement that corporation will follow due
process of law u/sec.105 (B) of MMC Act. Therefore, there is
applicability of mind when this order was passed by my predecessor in
office.
21. It nowhere appears that plaintiff is going to be prejudiced
as is pleaded in the petition. The aforesaid order does not bar plaintiff
-- 11 of 15 --
Review Petition No.125/2019 ..12.. (Disp.of) L.C. Suit (St) No.4216/2019
to invoke his remedies after proceeding u/sec.105 (B) is decided.
Neither the impugned order dated 08.04.2019 will be bar to file suit if
plaintiff is aggrieved. Therefore, by any stretch, it does not appear that
plaintiff will be prejudiced if his petition is not allowed.
22. Furthermore, what is important is that as discussed
above, the petition nowhere whispers about the inadvertent error or
mistake apparent on face of record. What the entire pleadings in the
petition as narrated in paragraph-13 is reflecting is that plaintiff is
aggrieved with the order dated 08.04.2019. The pleadings in the
petition reflect that plaintiff is claiming the order dated 08.04.2019
being erroneous order or that the erroneous view was taken by my
predecessor in office. No error is pointed out which without reasoning
can be detected if the the order dated 08.04.2019 is read at is. By no
stretch, if the order dated 08.04.2019 is read as it is, it can be said that
there is any error or that the error is self evident or can be detected
without the process of reasoning. What the pleadings in petition reflect
is that plaintiff is trying to substitute the another view for the earlier
view which is appearing to him. By any stretch, it cannot be concluded
that error or mistake glaring on the face of record crept in the
impugned order dated 08.04.2019 the aforesaid facts in light of legal
position cannot be scope of review under Order – 47 Rule -1 of CPC.
23. As discussed above, it cannot be concluded in light of
legal position discussed above that plaintiff has made out case to invoke
the powers of review under Order-47 Rule – 1 of CPC. The observations
therefore in the cited cases relied upon by both the parties help
defendant and not plaintiff. For all aforesaid discussion, I cannot
-- 12 of 15 --
Review Petition No.125/2019 ..13.. (Disp.of) L.C. Suit (St) No.4216/2019
conclude that the review of order dated 08.04.2019 is necessary. As
discussed above, there is very thin line in between the scope of review
and the appeal. A review is by no means an appeal in disguise whereby
an erroneous decision is re-heard and corrected, but lies only for patent
error. Therefore, I accede with arguments of learned advocate for
defendant as against the arguments of learned advocate for plaintiff.
24. As regards the objection of jurisdiction raised by
learned advocate for defendant BMC to entertain the L.C. Suit (St)
4216/2019 & consequently the review petition, same is not tenable as
this should be objection in L.C. Suit (St) No.4216/2019. There is order
of disposal of suit by my predecessor in office on 08.04.2019. Therefore,
the objection raised at this stage i.e. in review petition is hardly
entertainable. Therefore, I do not comment upon observations in
Mansukhlal Dhanraj Jain V/s. Eknath Vithal Ogale in (1995) 2 Supreme
Court Cases 665 relied upon by learned advocate for defendant and
Gaiv Dinshaw Irani & Ors V/s. Tehmtan Irani & Ors AIR 2014 Supreme
Court 2316, relied upon by both the learned advocate for plaintiff. The
arguments of learned advocate for defendant BMC therefore on this
point has no merits.
25. It further appears that plaintiff had moved Draft Notice of
Motion to stay the inquiry proceeding 2/2020 initiated by defendants
BMC u/sec. 105 (B) of MMC Act in respect of suit premises pending the
hearing and final disposal of the review petition. But this Notice of
Motion was not argued at earlier stages. Both the parties argued on
review petition itself. As the review petition is dismissed, the Draft
Notice of Motion also deserves to be disposed of. Accordingly, I proceed
to pass following order -
-- 13 of 15 --
Review Petition No.125/2019 ..14.. (Disp.of) L.C. Suit (St) No.4216/2019
ORDER
1. Review Petition No.125/2019 is dismissed with costs.
2. Review Petition No.125/2019 is accordingly disposed of.
3. Draft Notice of Motion is accordingly disposed of .
4. Draft Notice of Motion be registered for statistical purposes.
(SMT C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 05.02.2021 City Civil Court, Gr. Bombay.
Directly Dictated on Com :05.02.2021.
Checked on :06.02.2021, 08.02.2021, 09.02.2021
Signed on :09.02.2021
-- 14 of 15 --
Review Petition No.125/2019 ..15.. (Disp.of) L.C. Suit (St) No.4216/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.02.2021 05.16 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
05.02.2021
JUDGMENT/ORDER signed by P.O.
on
09.02.2021
JUDGMENT/ORDER uploaded on 09.02.2021
-- 15 of 15 --