Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1645 OF 2018
(CNR NO. MH CC01-005305-2018)
IN
L.C. SUIT NO. 840 OF 2014
Smt. Sushila Dharma Pawar ].. Plaintiff.
V/s.
1. Baban Dharma Pawar ]
And others ]..Defendants.
Advocate Mr. B.S. Nayak for plaintiff.
Advocate Mr. Powar for defendant No.1.
Advocate Mr. Trivedi for SRA/defendant Nos.2 and 3.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 14th SEPTEMBER 2022
ORAL ORDER
This Notice of Motion has been taken out by the defendant
No.1 for rejection of the plaint under Order-VII Rule-11(a)(b) and (f) of
the Code of Civil Procedure 1908 and also for staying all other
proceeding in L.C. Suit No.840 of 2014.
2. The defendant No.1 has filed affidavit in support of Notice
of Motion. It is averred that the plaintiff has filed present suit for
declaration and injunction. The plaintiff is no way concern in respect of
the suit premises at all any time. The suit premises is standing in the
name of defendant No.1 and he is in exclusive use, occupation and
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possession of the suit premises with all right, title and interest. The
plaintiff suppressing the true material fact that the structure was
standing in the name of the father of defendant No.1. After the demise
of his father, the defendant No.1 is continuously residing in the suit
premises. According to the provisions of Slum Act, occupants are
entitled the suit premises and he is lawful
bona-fide occupant of the suit
premises. Therefore, the concern authority, Developer and Housing
society executed necessary documents with defendant No.1 and after
developed the suit premises, handed over to defendant No.1 as per
Agreement dated 22.12.2005.
3. It is further averred that according to the provisions of
section 42 of the SRA Act, the said suit is barred and not tenable under
the law. Therefore, the suit deserved to be dismissed with cost. Section
35 of the SRA Act, there is specific remedy available to the plaintiff for
approach to the Competent Authority. The plaintiff has not given
Statutory Notice under section 80 of C.P.C. before filing the present suit.
No cause of action arise to file present suit against the defendants.
Therefore, the suit is not tenable under the law. Hence, prayed for
rejection of the plaint and allowing the Notice of Motion.
4. The plaintiff has filed reply to the Notice of Motion. It is
contended that suit is filed for declaration that the defendant No.1 has
no right, title and interest in the suit premises viz. Rehab Building No.3,
Room No.1106, 11th Floor, F Wing, Dr. Babasaheb Ambedkar Nagar, SRA
CHS Senapati Bapat Road, Elphinston Road, Mumbai 400 013 and
therefore possession of the suit premises obtained by him vide taba
patra dated 8.6.209 issued in the name of plaintiff is illegal. The
plaintiff has taken out Notice of Motion No.1581 of 2014 and my
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learned Predecessor has partly allowed the said Notice of Motion on
05.03.2015 and restrained the defendant No.1 from creating third party
interest in respect of the suit premises. The defendant has also taken
out a Notice of Motion No.2327 of 2016 for dismissal of the suit on the
issue of pecuniary jurisdiction of this Court under section 42 of the
Slum Act and the said Notice of Motion has been rejected on
20.03.2018. The plaintiff has denied all the contentions made in the
Notice of Motion.
5. The plaintiff further contended that originally the husband
of the plaintiff was the tenant of the suit premises. After his death said
premises was transferred in her name being the head of the family. After
the Slum Rehabilitation Authority took up the redevelopment of the
said premises and on completion of the same, allotment and possession
letters were issued in her name. However, the defendant No.1
manipulated and forged certain documents as stated by the plaintiff in
the plaint. The defendant No.1 by playing fraud, misrepresentation and
collusion with authorities, managed to get the possession of the suit
premises in his name to the exclusion of himself and other family
members. After taking possession of the suit premises, the defendant
No.1 has given the same to third party on leave and license basis. The
plaintiff denied that the suit is liable to be dismissed. Hence, prayed for
dismissal of Notice of Motion.
6. The defendant No.1 has filed rejoinder to reply of the
plaintiff wherein same averments made.
7. Heard the learned advocate for the plaintiff and the learned
advocates for the defendant Nos.1 to 3.
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8. On the basis of rival contentions of both the sides, the
following points are framed. I record my finding thereon with reasons
are as under;
Sr.
No.
POINTS FINDINGS
1 Whether the Plaintiff has proved
prima facie
case?
In the
Negative
2 Whether the Plaintiff has proved that he will
suffer irreparable loss if the Notice of Motion
is dismissed?
In the
Negative
3 In whose favour does the balance of
convenience lie?
In favour
of the plaintiff
4 What order? As per final order
R E A S O N S
AS TO POINT No.1-:
9. Perused plaint, affidavit and reply in support of Notice of
Motion. It appears that the present Notice of Motion is filed for
rejection of plaint, so it is convenient to refer the relevant provision;
Order-VII Rule 11 of Civil Procedure Code says that the plaint
shall be rejected in the following cases;
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under valued and the
plaintiff on being required by the Court to so correct the
valuation within a time to be fixed by the Court fails to
do so;
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(c) where the relief claimed is properly valued but the
plaint is written upon paper insufficiently stamped and
the plaintiff on being required by the Court to supply
the requisite stamp paper within a time to be fixed by
the Court fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any way;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of Rule-9;
10. A plain reading of above provision, it makes clear that
where plaint does not disclose the cause of action, the relief claim is
undervalued and not corrected within the time allowed by the Court.
11. The learned advocate for defendant No.1 submitted that
there is no cause of action to file suit. Hence, suit to be dismissed under
Order VII Rule-11A of C.P.C. Perused pleadings of the plaint and Clause-
20 of the plaint. It appears that the plaintiff has claimed injunction
against the defendant No.1 in respect of the suit property mentioned in
the plaint. The said property is the tenanted property of husband of the
plaintiff and father of defendant No.1 and she is claiming her right in
the suit property. Therefore, she is entitled to claim relief against the
defendants as there is recurring cause of action. As per the suit for
injunction when obstructed to exercise any right he can file suit for
injunction. Therefore, it seems that the cause of action arose to the suit.
As far as Order-VII Rule-116 is concerned, the plaintiff valued the suit
properly and affixed Court fee stamp. The plaintiff was not directed to
value the suit properly and affix the Court fee stamp under the
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provision of Bombay Court Fees Act. Hence, this provision is not
attracted.
12. The defendants further submitted that the plaintiff has not
given Statutory Notice under Section 80 of C.P.C. and Section 164 of
Maharashtra Co-operative Societies Act before filing the present suit.
Hence, the plaintiff’s suit and Notice of Motion is not maintainable.
13. After perusing the plaint, it appears that defendant Nos.2
and 3 are the SRA, defendant No.4 is the Co-operative Society and
defendant No.5 is the Corporation. Defendant Nos.2, 3 and 5 have not
challenged the suit under section 80 of C.P.C. Therefore, a third party
has no
locus-standi to raise the issue of non-issuance of the notice under
Section 80 of C.P.C. and Section 164 of Maharashtra Co-operative
Societies Act.
14. The learned advocate for defendant No.1 has relied upon
the Judgment in the case of Gaurav s/o Balmukund Bhirad and others
V/s. Tukaram Pandurang Dhagekar (D) thr. His L.Rs. And others
reported in 2018(5) ALL MR 772. I have gone through the said
judgment. With all respect to the same, I state that it is not applicable to
the present matter as the facts are different.
15. The learned advocate for defendant No.1 has further relied
upon the Judgment in the case of Ebrahimbhai V/s. State of
Maharashtra and others reported in AIR 1975 Bombay 13 wherein it is
held that;
“Under Order 7, Rule 11(d) it is obligatory on the Court
to reject the plaint where the suit appears from the
statement of the plaint to be barred by any law.
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With all respect to the same, I state that it is not applicable to the
present matter as the facts are different as there is no bar by any law in
this matter.
16. The learned advocate for defendant No.1 has further relied
upon the Judgment in the case of B.L. Shukla and another V/s.
Fatmabai Ismail reported in AIR 1976 Gujarat 29 wherein it is held that
“Notice under section 80 is essential irrespective of whether they acted
mala-fide or bona-fide for maintainability of suit.” With all respect to
the same, I state that it is not applicable to the present matter as the
facts are different.
17. The learned advocate for plaintiff has relied upon the
Judgment in the case of Shiv Rani V/s. District Judge, Mainpuri and
others reported in AIR 1975 Bombay 13 wherein it is held that;
“Plea of want of notice can only be raised by party for
whose benefit provision of giving notice is meant and
not by a third.”
In this matter, defendant No.1 is private party. Therefore, defendants
have no any right to challenge bar of notice under section 80 of C.P.C.,
as he is not beneficiary to the notice.
18. The learned advocate for plaintiff has further relied upon
the Judgment in the case of Ishtiyaq Hussain Abbas Hussain V/s. Zafrul
Islam Afzal Hussain and others reported in AIR 1969 Allahabad 161
wherein it is held that;
“Suit for declaration of title and possession decreed,
State Government impleaded as proforma defendant,
being tenant of property, not putting in appearance.
Want of notice under section 80-plea as to cannot be
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raised by private individual to assail the decree. State
Government by non-appearance must be deemed to
have waived the plea.”
It is further held that’
“It appears to me that the plea of want of notice is open
only to he Government and it is not open to a private
individual in this particular case the State Government
did not even put in appearance. The notice, therefore,
must be deemed to have been waived by it. In Dhian
Singh Sobha Singh V. Union of India, AIR 1958 SC 274
their Lordships observed as follows;-
“It is relevant to note that neither was this point taken
by the respondent in the written statement which it filed
in answer to the appellants’ claim nor was any issue
framed in that behalf by the trial Court and this may
justify the inference that the objection under S.80 had
been waived.”
“It is well settled and is conceded that the party in
whose favour the section prescribed notice to be given
can waive his right to notice.”
19. The learned advocate for plaintiff has further relied upon
the Judgment in the case of Sant Prasad V/s. Kaus;a Nand Sinha and
others reported in (2017)9 S.C.C.655. The said citation is on the point
of section 80 of the C.P.C. notice was required for institution of the suit.
20. The learned advocate for plaintiff has further relied upon
the Judgment in the case of Bansnarayan Sitaprasad Patel V/s.
Sairam(SRA) Co-operative Housing Society Ltd. and others. It is held
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that, a civil right has to be adjudicated by the Civil Court and not by the
Competent Authority. Civil Court has jurisdiction to entertain and try
the suit.
21. The defendants also raised objection that the suit filed by
the plaintiff is barred by limitation, but the question of limitation is
mixed question of facts and law. It will be decided on the final
adjudication of the matter. Hence, Notice of Motion is not maintainable
and the ground of the defendant for rejection of the plaint cannot be
taken into consideration while deciding the Notice of Motion under
Order-VII Rule 11 of Civil Procedure Code. As such the present Notice
of Motion is not tenable. Accordingly, I proceed to pass the following
order:-
ORDER
1. Notice of Motion No. 1645 of 2018 is dismissed
with costs.
2. Notice of Motion No. 1645 of 2018 stands
disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 14/09/2022 Gr. Bombay.
Dictated on : 14/09/2022
Transcribed on : 15/09/2022
Signed on : 17/09/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/09/2022 At 4.50 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
14.09.2022
Judgment/Order signed by P.O. on 17.09.2022
Judgment/Order uploaded on 17.09.2022
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