Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No. 2668 of 2009
in Suit No. 411 of 2019
MHCC010073242019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.2668/2009.
IN
S. C. SUIT NO.411/2019
The Board of Trustees of the Port
of Bombay. ..Applicant/
Defendant.
In the matter of :
Shri Usman Adam Lokhandwala. ..Plaintiff
V/s.
The Board of Trustees of the Port
of Bombay. ..Defendant.
Appearances :
Adv. Jawahar Thakkar for plaintiff.
Adv. Druv Gandhi i/b Motiwala & Company for defendants.
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 06/07/2022
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Order in Notice of Motion No. 2668 of 2009
in Suit No. 411 of 2019
ORDER
This Notice of Motion is taken out by the defendant for
dismissal of the suit under Order 7 Rule 11 of the Code of Civil
Procedure, 1908 (in short 'CPC').
2. It is the contention of the defendant that suit has been
filed by the plaintiff seeking declaration that the provisions of the Public
Premises (Eviction of Unauthorised Occupants) Act 1971 (in short 'PPE
Act') are not applicable to the suit premises and for permanent
injunction for restraining the defendant from evicting the plaintiff from
the suit premises. This Court has no jurisdiction to entertain and try the
suit under Section 15 of PPE Act. The issue raised by the plaintiff can be
decided by Estate Officer appointed under PPE Act. Plaintiff has
remedy to file an appeal from the order of the Estate Officer.
3. It is further contended that the suit is barred by the
limitation under Section 120 of the Major Port Trust Act, 1963 (in short
MPT Act). No mandatory presuit notice has been served upon the
defendant as per Section 120 of the MPT Act. The plaintiff has no cause
of action against the defendant. On the above grounds, it is prayed that
the plaint be dismissed under Order 7 Rule 11 of CPC.
4. The plaintiff resisted the Notice of Motion by filing affidavit
in reply. As per the contentions of the plaintiff, Section 15 of PPE Act is
not applicable to the present suit. The suit premises is not governed by
the PPE Act. Plaintiff is in lawful possession of the suit premises and he
cannot be evicted under PPE Act. The action of the defendant
authorizing eviction of the plaintiff from the suit premises can be
challenged in civil Court on the ground of arbitrariness, malafide and
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in Suit No. 411 of 2019
breach of principals of natural justice. Therefore, this Court has
jurisdiction to entertain the suit.
5. The plaintiff has further contended that apprehension has
arose on 22.11.2016 and the suit for declaration is filed within three
years. Therefore, as per Article 58 of the Limitation Act, the suit is
within limitation. The issue of limitation can be tried along with all
other issues and cannot be decided at this stage. Notice U/sec. 120 of
MPT Act is not required to be given to the defendant. The defendant is
trying to avoid the trial of the suit. Hence, it is prayed that Notice of
Motion be rejected.
6. Heard Ld. Adv Dhruv Gandhi for the defendant. Despite of
giving sufficient opportunity, Ld. advocate for plaintiff remained absent
for argument. Therefore, Notice of Motion is taken for order without
argument of the plaintiff.
7. Following points arise for my determination, to which I
record my findings for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether plaint discloses cause
of action?
No
2. Whether suit is barred by law? Yes
3. Whether plaint is liable to be
rejected under Order 7 Rule 11
of CPC?
Yes
4. What order? As per final Order.
REASONS
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Order in Notice of Motion No. 2668 of 2009
in Suit No. 411 of 2019
As to Point No. 1 to 4:
8. Ld. Advocate for the defendant submits that the suit
premises comes within the definition of public premises as defined in
the PPE Act. Therefore, the provisions of PPE Act are applicable to the
suit premises. He further submitted that defendant being Port Trust,
provisions of MPT Act are also applicable to the present case. Under
PPE Act, Estate Officer is an authority which can deal with the issue
raised by the plaintiff in the suit. The remedy by way of appeal against
the Estate Officer is available. There is express bar of Section 15 of PPE
Act. Therefore, Civil Court has no jurisdiction to try and entertain the
suit. He further submitted that presuit notice under Section 120 of the
MPT Act is mandatory. No such notice is issued by the plaintiff before
filing of the suit. Moreover, as per his submissions, Section 120 of the
MPT Act provides limitation of six months for filing the suit. As per the
pleading in the plaint, cause of action for filling the suit arose on
29.11.2016. However, the suit is filed after two years. Therefore, it is
time barred. On the basis of these submissions, he prayed that suit is
barred and thus, the plaint is liable to be rejected.
9 In support of his submissions, Ld. Advocate for defendant
placed reliance upon following judgments:
a) B. Sharma Rao H. Ganeshmal and Anr. Vs. Head Quarters Asst. and
Ors, (1998) 9 SCC 577 and
b) Union of India and Ors Vs. Bandra Gas Service, Mumbai and Anr,
2018 (3) Mh.L.J. 136.
10. Perused the plaint. The suit has been filed with a prayer of
declaration that plaintiff and suit premises are not governed by PPE Act
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in Suit No. 411 of 2019
and plaintiff cannot be evicted under the said act. The plaintiff has also
sought perpetual injunction to restrain the defendant from instituting
proceeding of eviction against the plaintiff.
11. It is the case of the plaintiff that he is occupant and
purchaser of the suit premises. Therefore, plaintiff is not unauthorized
occupier of the suit premises and he cannot be evicted under PPE Act.
Reference to the approval granted by the Estate Manager of the
defendant for eviction of the plaintiff from the suit premises is made in
the pleadings of the plaint. In para No.13, the plaintiff has pleaded that
the approval granted by the Estate Manager came to the knowledge of
the plaintiff on 29.11.2016. Apart from the above facts, there is no
clear pleading about the socalled proposal of the Estate Manager. This
vague pleading in the plaint goes to show that the facts essential to
make out cause of action are not pleaded in clear terms in the plaint.
12. Section 15 of the PPE Act provides that no Court has
jurisdiction to entertain any suit or proceeding in respect of the eviction
of any person who is unauthorized occupant of any public premises.
The definition of ‘public premises’ in Section 2(e) of PPE Act includes
premises belonging to Board of Trustees or any successor company
constituted under or referred to in the MPT Act. The defendant is a
major port and thus it is governed by the MPT Act. Consequently, the
provisions of the PPE Act are applicable to the premises belonging to it.
Therefore, it is clear that the suit premises fall within the ambit of
public premises.
13. The Hon’ble Supreme Court in B. Sharma Rao H.
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in Suit No. 411 of 2019
Ganeshmal and anr Vs. Head Quarters Asst. and ors, (Supra) held
that the issues, such as raised by the plaintiff in the present case, can be
determined by Estate Officer under PPE Act. Further in Union of India
and ors Vs. Bandra Gas Service, Mumbai and anr,(supra) it is held by
the Hon’ble Apex Court that once premises is held to be public premises
and action for eviction is taken, jurisdiction of civil Court stands barred
under Section 15(a) of the PPE Act. Therefore, in the light of the above
precedents, the suit in the present form is not maintainable under
Section 15 of the PPE Act.
14. As the defendant comes within the purview of Major Port
Trust Act, 1963, Section 120 of the said Act is applicable to the suits
filed against the defendant. As per the mandate therein, one month’s
presuit notice is required to be issued to the defendant. Admittedly in
the present case, no such presuit notice is issued by the plaintiff to the
defendant.
15. Moreover, Section 120 further provides specific limitation
of six months for filing suit after the date of accrual of cause of action.
In V.M. Salgaocar Anr Bros. V/s. Board of Trustees of Port of
Mormugao and Anr., (2005) 4 Supreme Court Cases 613, relied upon
by the Ld. Advocate for the defendant, the Hon'ble Apex Court has held
that presuit notice under Section 120 MPT Act is mandatory. It further
held that special provision under Section 120 of MPT Act prescribing
shorter time of limitation than that provided under Indian Limitation
Act is not violative of Arts.14 and 19(1)(f) of the Constitution of India.
16. Therefore, both requirements prescribed by Section 120 of
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in Suit No. 411 of 2019
MPT Act are mandatory. As per pleadings in the plaint, cause of action
for the suit arose on 22.11.2016. The suit is filed in 2018. Therefore,
the suit is clearly barred by the limitation provided under Section 120 of
MPT Act.
17. The suit is barred by law in terms of Section 15 of PPE Act
and Section 120 of the Major Port Trust Act, 1963. Moreover, as
already observed, plaint does not disclose the cause of action. Thus, the
plaint is liable to be rejected under clause (a) as well as clause (d) of
Rule 11 of Order 7 of CPC. Resultantly, point No. 1 is answered in the
negative, point No.2 and 3 are answered in the affirmative and
following order is passed:
ORDER
1. Notice of Motion No 2668 of 2019 is made absolute in terms of
prayer clause No. (a) to (d).
2. Notice of Motion No. 2668 of 2019 disposed of accordingly.
(SHRI S. B. PAWAR )
Judge
Dt.:06/07/2022 City Civil Court, Gr.Mumbai
Declared on : 06.07.2022
Dictated on : 06.07.2022
Transcribed on : 07.07.2022
Checked & Signed on:
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Order in Notice of Motion No. 2668 of 2009
in Suit No. 411 of 2019
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.. 9.. Ord.in Summary
Judgment No.1021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.07.2022 at 2.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 06.07.2022
Order signed by P.O. on 06.07.2022
order uploaded on 16.07.2022
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