Final Order 1

Order Details: Notice of Motion
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CNR NO.MHCC01-008380-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.3064 OF 2019
IN
L.C. SUIT NO.2057 OF 2019
Mrs. Fatima Derrick Fernandes ]...Plaintiff
Versus
1. Dr. Tejraj P. Dhoka and another. ]...Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 1ST OCTOBER, 2019.
Mr. Anand Charanbir, Advocate for Plaintiff.
Mr. Gharat h/f J.S. Kini, Advocate for defendant No.1.
Ms. Mhatre, Advocate for defendant/MCGM.
O R A L O R D E R
1. Plaintiff has sought temporary injunction to restrain
defendant No.1 from carrying out illegal additions and alterations,
changing horizontal and vertical existing dimension of the suit premises
by using "I" Beam Iron channel and ladi coba roof without the written
permission from the plaintiff and Corporation, a direction to appoint
Court Commissioner and a direction to defendant No.2 to Corporation
to immediately cancel tenantable repairs permission and to take legal
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action against the defendant No.1 and for initiating immediate steps for
demolition of the illegal additions and alterations being carried out by
the defendant No.1 in the suit premises.
2. In brief plaintiff's case is that, he is the owner and landlord
of a Chawl consisting 6 shops on the ground floor and 7 residential
rooms on the first floor. Defendant No.1 is a tenant in shop No.1
measuring 10 ft. x 24 ft. having height of 9 ft. on monthly rent of
Rs.113/. Defendant No.1 is not paying rent since past several years.
The rent receipts are issued by the plaintiff. The shop is constructed of
B.M. walls and rolling shutters. Defendant No.1 has encroached on the
open space in front of the suit shop and illegal additions and alterations
and extensions to the suit shop on front side has been made by
defendant No.1 by iron beams and pillars. He has covered the roof with
ladi coba and an iron rolling shutter is put to the extended premises
without the permission from the plaintiff and the BMC. The plaintiff is
legal heir of owner. Thus she is owner and landlord. She is one of the
legal heirs of the deceased owner. She has never conveyed the suit shop.
Defendant No.1 has encroached on 180 sq.ft. open space situated in
front of suit shop. Plaintiff has lodged various complaints with Kanjur
Marg Police station. Plaintiff has issued notice to defendant No.1. She
has also issued a legal notice to defendant No.2 Corporation. Defendant
No.2 did not take any action. Plaintiff and her brother had been to
Kanjur Marg Police Station. Defendant No.1 was called there.
Defendant No.1 claimed that he has permission to carry out repairs.
However, said permission is for tenantable repairs only. Defendant No.1
has violated permission for tenantable repairs. Defendant No.2
Corporation is bound to act under the provisions of the M.R.T.P. Act and
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the M.M.C. Act. Defendant No.1 also claimed that he has sold the suit
shop and had obtained consideration for an area of 420 sq.ft. The
repairs permission needs to be canceled. There is likelihood of further
construction. Entire dimensions and nature of the suit premises may
change. Therefore, injunction as sought is necessary.
3. Defendant No.1 opposed the Notice of Motion denying all
the plaint allegations adverse to him. According to him, he is an old and
ailing doctor. The suit shop was in pathetic conditions. The suit shop is
situated in slum and thus this Court has no jurisdiction to entertain the
suit. Most of the coowners have executed the deed of conveyance in
favour of Mr. Hitesh M. Shah. The plaintiff has suppressed this fact.
Some of the coowners have also sued Mr. Shah. This fact is not
disclosed by the plaintiff. Erstwhile coowners have addressed a letter of
attornment to all the tenants. Mr. Shah is acting as landlord. Defendant
No.1 is unaware of disputes between coowners. He has threatened Mr.
Shah as landlord. He has sought permission from BMC and landlord.
The same was granted. The work done and is yet to be done is certified
by the architect as revealed in Exhibit J to the written statement.
Defendant No.1 undertakes to carry out repairs as recited in 'Exh.J'. The
boundaries of suit shop are wrongly mentioned by the plaintiff. The
Court Commissioner's report does not reveal illegal encroachment. The
structure of defendant No.1 is in line with other shops. The plaintiff has
no right to file the suit. The alleged horizontal and vertical extensions
are not carried out and will not be carried out. Defendant No.1 has not
carried out any illegal repairs. The Court Commissioner's report brings
out falsity of plaintiff's case. This Court has no jurisdiction to try and
entertain the present suit. It is barred by the provisions of the Slum Act.
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4. In her Rejoinder, the plaintiff has denied the contents of
written statement. She has stated that defendant No.1 has illegally
encroached upon the open space and has illegally carried out
construction. The Court Commissioner's Report confirms it. The suit
shop is not situated in slum area. The plaintiff has not executed
Conveyance Deed. The letter dated 1.8.2006 is false and fabricated. It is
not signed by the alleged writer of the said letter. Signature of said
letter and signatures on the Vakalatnama at page 17 of the written
statement do not match. Letter dated 4.8.2006 is forged and
manipulated. Mr. Shah is not the owner. The letter dated 25.5.2019 is
also manipulated by defendant No.1. Letter dated 17.8.1992 is not
addressed by the Advocate for alleged clients. At the relevant time, out of
9 such clients 6 were minors. Defendant No.1 has not specifically denied
plaintiff's case and thus it amounts to admission on the part of defendant
No.1.
5. Following points arise for determination against which
findings are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Does plaintiff prove a prima facie case
in his favour?
In the negative.
2. Whether the balance of convenience lies
in plaintiff’s favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed with
costs.
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REASONS
As to points No.1 to 4.
6. Before going to assess the facts of this case, the position of
law relating to grant or refusal of relief of injunction needs to be seen.
7. Advocate for defendant No.1 has relied upon Suresh D.
Shanghavi Vs. Mohasinali H. Merchant, 1981–BCR–0–346 wherein
the Hon'ble Bombay High Court has observed that
"It is well settled that the power conferred upon the Court
to grant an injunction which is in the nature of equitable
relief is to some extent discretionary. Grant of injunction is
a serious matter and the Court should always take good
care to grant temporary injunction in those case only where
such an injunction is essential. It being in the nature of an
inequitable manner is not entitled to such an indulgence.
Before seeking such a relief of temporary injunction the
applicant is obliged to satisfy the Court by showing that an
immediate irreparable injury is likely to result if an
injunction is not granted and there is no other remedy open
to him by which he can protect himself from the
consequences of the apprehended injury.”
8. He also relied upon Baburao Ganpati Mali (Since
Deceased through L.Rs.) Vs. Balasaheb Anna Patil & Anr., 2007(2)
ALL MR 364 and submitted that a plaintiff suppressing material facts is
not entitled to the relief of injunction.
9. He relied upon Lalitkumar Jain & Anr. Vs. Jaipur Traders,
(2002) 5 Supreme Court Cases 283 wherein the Hon'ble Supreme
Court has observed that
"Though this conduct on the part of the defendants is not
above board, the conduct of the plaintiff, who has sought
equitable remedy, should be kept uppermost in the mind of
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the Court. The plaintiff seeking equitable remedy cannot
approach the Court with unclean hands or be guilty of
laches."
10. He also relied upon D.R. Chawla & Ors. Vs. Municipal
Corporation Of Delhi (1993)3 Supreme Court Cases 162 wherein the
Hon'ble Supreme Court has observed that
"Power to grant injunction is an extraordinary power
vested in the court to be exercised taking into consideration
the facts and circumstances of a particular case.”
11. Advocate for defendant No.1 also relied upon Charanji Lal
Vs. Financial Commissioner, AIR 1978 Punjab & Haryana 326
wherein it is observed by the Punjab and Hariyana High Court that
"Malafide and calculated suppression of material facts
which, if disclosed, would have disentitled the petitioners to
the extraordinary remedy under the writ jurisdiction or in
any case would have materially affected the merits of both
the interim and ultimate relief claimed. Failure to mention
all these material facts was neither inadvertent nor was
occasioned by any bona fide omission. Held that the writ
petitioners, in the present case, had by their own conduct
disentitled themselves to the relief which they sought to
claim".
12. He also relied upon M/s. Seemax Construction Vs. State
Bank of India, AIR 1992 Delhi 197 wherein it is observed that
"A party seeking discretionary relief has to approach the
court with clean hands and is required to disclose all
material facts which may, one way or the other, affect the
decision. A person deliberately concealing material facts
from court is not entitled to any discretionary relief. The
court can refuse to hear such person on merits. A person
seeking relief of injunction is required to make honest
disclosure of all relevant statements of facts otherwise it
would amount to an abuse of the process of the court".
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13. He also relied upon Sunil Kumar Vs. Ram Parkash, AIR
1988 Supreme Court 576 wherein the Hon'ble Supreme Court has
observed that
"The provisions of Section 38 have to be read along with
Section 41. Section 41 provides that an injunction
cannot be granted in the cases falling under clauses (a)
to (i). Clause (h) thereunder provides that an injunction
cannot be granted when a party could obtain an
efficacious relief by any other usual mode of proceeding
(except in case of breach of trust). The coparcener has
adequate remedy to impeach the alienation made by the
karta. He cannot, therefore, move the Court for an
injunction restraining the karta from alienating the
coparcenary property.”
14. He also relied upon Kailash Chand Vs. Bajrang Lal, AIR
1997 Rajasthan 205, wherein it is observed that
"The provisions of Section 38 of the Specific Relief Act
have to be read along with Section 41 thereof Section 41
provides that an injunction cannot be granted in the cases
falling under clauses (a) to (j) but Clause (h) thereunder
provides that an injunction cannot be granted when a
party could obtain an efficacious relief by any other usual
mode of proceeding, except in case of breach of trust. The
coparcener has adequate remedy to impeach the
alienation made by the Karta. He cannot therefore, move
the Court for an injunction restraining the Karta from
alienating the coparcenary property.”
15. He further relied upon Agarwal Industries Ltd Vs. Golden
Oil Industries (P) Ltd., AIR 1999 Bombay 362 wherein the Hon'ble
Bombay High Court has observed that
"In spite of the Court repeatedly stating and reaffirming the
principle that it is the duty of a party asking for an
injunction to bring to the notice of the Court all facts
material and relevant to the issue, the litigants continue in
their efforts to obtain favourable orders from the Court, ex
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parte, without disclosing all material facts to the Court".
16. The authorities cited supra lay down the principles of law
that a person coming to the Court of Law seeking equitable and
discretionary relief must come with clean hands before the Court. If a
litigant suppresses any material fact from the Court then he is not
entitled to an equitable and discretionary relief from the Court. Even if
the conduct of defendant is also not equitable, still the plaintiff is not
entitled to the equitable relief if the Court comes to the conclusion that
plaintiff has suppressed the material facts. An injunction can not be
granted if an equally efficacious remedy is available. Keeping in mind
these principles, the facts of this case are to be one into.
17. The plaintiff has come with a case that defendant No.1 has
encroached upon the open space of 180 sq.ft. situated in front of the
shop. According to the plaintiff the shop is measuring only 240 sq.ft.
18. The perusal of the boundaries of the shop mentioned in the
plaint reveal that, those do not reveal existence of the alleged open space
situated in front of the shop. It needs to be mentioned that the
boundaries do not include the allegedly encroached open space, as can
be seen from the statements made in paragraph 1 of the plaint. In such
circumstances, it is clear that the allegedly encroached portion is
considered as part of the shop.
19. Admittedly, there is no Lease Deed revealing the area of the
premises let out to defendant No.1.
20. The rough sketch at Exh.B to the plaint shows the allegedly
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encroached area. It does not show that such alleged encroachment is
also made by the adjacent shop occupiers. Plaintiff has later on
produced a plan with list Exh. 6 revealing such alleged encroachment by
all occupiers of the adjacent shops. The allegedly encroached area is
exactly the same for all the occupiers of all the shops. This is a change in
plaintiff's stance. This circumstance does indicate that all the occupiers
of the shops are using the alleged open space in front of shops. This
renders doubtful the contention of plaintiff that defendant No.1 has
made encroachment as alleged.
21. Plaintiff has produced various photographs at page 48
onwards of the plaint. The photographs on plaint page 48, 50, 51, 52
and 54 to 56 reveal old B.M. walls on both sides of allegedly encroached
area. In the photographs on plaint page 56 the remains of old plaster are
also seen. These photographs prima facie create an impression that the
area bounded by these B.M. walls was in occupation. The Court
Commissioner's report does not change this scenario.
22. Defendant No.1 has produced a copy of notice dated
17.8.1992 claiming that defendant No.1 was the tenant in the suit shop
measuring 400 sq.ft. and has encroached an open area measuring 10 x
20 ft. and has carried out unauthorized additions and extensions to the
tenanted shops. The copy of notice at Exh.I to the written statement
thus claims that defendant No.1 was having in his possession a shop
measuring 400 sq.ft. and not a shop measuring 240 sq.ft. as alleged by
the plaintiff.
23. Advocate for plaintiff submitted that said copy of notice at
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Exh.I to written statement cannot be relied upon as it is a fraudulent
document. According to him, many of the clients mentioned in said
notice for, whom the notice was issued, were minors.
24. It needs to be mentioned that in paragraph 1 of said notice
Exh.I to the written statement, it is specifically mentioned that Smt.
Albina George Ferro had instructed to issue the notice for herself and on
behalf of all those who are minors as well as on behalf of the others.
Thus the notice specifically mentioned that, though few of the people
mentioned in the notice as clients of Advocate Bhandari were minors,
Smt. Albina had instructed to issue the notice for them also. In such
circumstances, the plea by the plaintiff that said document is
fraudulently prepared, cannot be gone it at this stage in absence of any
other circumstance to doubt the credibility of said notice.
25. Plaintiff has produced with plaint at Exh.G copy of
complaint by the plaintiff to defendant No.2 Corporation. Two letters
addressed to defendant No.2 Corporation are also produced. In
complaint dated 26.6.2019, the plaintiff has not alleged that defendant
No.1 has encroached upon the open space as alleged in the plaint.
26. The circumstances discussed above reveals, prima facie, that
defendant No.1 is not in possession of a shop measuring 240 sq. ft. but is
in possession of a shop of more area. Thus, prima facie, the plaintiff's
case cannot be believed that defendant No.1 has encroached upon the
open space situated in front of a shop measuring 240 sq.ft.
27. The plaintiff claims to be the owner and landlord. She also
claims that she had issued rent receipts to defendant No.1. However, the
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only rent receipt produced at Exh.A to the plaint does not bear signature
of either the owner or the rent collector.
28. In paragraph 1 of the plaint plaintiff has claimed to be the
owner and landlord of entire chawl. In paragraph 3 she has stated that
she is legal heir of the deceased owner. After few lines she has claimed
that she is one of the legal heirs and is entitled to her share in the said
property. Further she has claimed that she is the owner and landlord of
said property to the extent of her share along with other legal heirs of
the original owner.
29. The manner in which plaintiff has pleaded her ownership
and status as her landlord, clearly reveal that initially she has claimed to
be the exclusive owner and landlord and later on she has claimed to be
one of the owners to the extent of her share. The manner, in which these
statements are made, creates an impression that the plaintiff has tried to
prima facie show that she is exclusive owner but has later on diluted her
stand to claim otherwise. This reflects on the conduct of the plaintiff.
30. Plaintiff has produced on record property card at Exh.C
revealing that in the year 1977 Mr. George Mingel Ferro and Wilson
Mingel Ferro were holders of the property. In the year 1991 the legal
heirs are brought on record. They are 08 in number. Defendant has
produced on record copy of Conveyance Deed at Exh.D to the written
statement. It reveals that the holders of the property, whose names were
recorded in the year 1991, have Conveyed land C.T.S. No.1022 of Village
Kanjur with chawls to one Mr. H.M. Shah. Same is the description of the
property in which the suit shop exists. In the year 2011 name of M/s.
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Bhavya Enterprises, i. e. the proprietorship concern of Mr. H.M. Shah is
recorded as holder of the property. Later in the year 2016 name of 27
holders is recorded out of whom one is the plaintiff.
31. Considering the chronology of the events, it is clear that the
chawls were conveyed by the legal heirs of Mr. George Ferro and Mr.
Wilson ferro to Mr. H.M. Shaikh. However, though the plaintiff has
annexed property card at Exh.C to the plaint, she did not clarify about
the status Bhavya Enterprises though its name is recorded in the property
card. The plaintiff has claimed that she is not aware of conveyance by
few of the coowners in favour of Mr.H.M. Shah. In paragraph 3 of the
plaint she has specifically pleaded that she has never sold, transferred or
assigned the property at CTS No.1022 to any person. Making of all these
statements by the plaintiff, in the light of entries in the property card,
prima facie leads to a conclusion that plaintiff was aware of conveyance.
It also needs to be mentioned that the plaintiff has not explained in her
rejoinder the effect of conveyance. In such circumstances, the plaintiff's
claim to be the owner and landlord of the suit shop is prima facie
doubtful.
32. Advocate for defendant No.1 submitted that, defendant No.1
has come with a case of bar of jurisdiction on the ground that the suit
shop exists in slum area. However, defendant No.1 is giving up said plea
since the slum notification was set aside by the Appellate Authority. The
order to that effect is produced by defendant No.1 with his written
statement. Considering such statement, said plea is not gone into.
33. Advocate for defendant No.1 submitted that considering the
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nature of suit, this Court has no jurisdiction to try and entertain the
present suit. Such plea is raised by him claiming that the suit of present
nature is cognizable by the Small Causes Court and not by a Civil Court.
He submitted that the nature of present suit is such that it relates to the
recovery of possession of the tenanted premises and thus will fall within
the scope of Section 33 of the Maharashtra Rent Control Act, 1999 (the
Act of 1999 hereinafter). He also submitted that the plaintiff cannot
claim any relief which relates to recovery of possession from the Civil
Court. According to him the bar of jurisdiction on the subject metter of
the suit can be raised even without pleadings. In support of his
submission he relied upon Harshad Chiman Lal Modi V/s. DLF
Universal Ltd. & Anr., (2005) 7 Supreme Court Cases 791 wherein
the Hon'ble Supreme Court has observed that
"Jurisdiction as to subject matter, however, is totally
distinct and stands on a different footing. Where a court
has no jurisdiction over the subject matter of the suit by
reason of any limitation imposed by statute, charter or
commission, it cannot take up the cause or matter. An
order passed by a court having no jurisdiction is a nullity".
34. Relying upon the above observations of the Hon'ble
Supreme Court he submitted that this court lacs jurisdiction on the
subject matter of the suit and thus cannot take cognizance of the suit. He
submitted that, if the Court has no jurisdiction then it cannot touch the
matter at all. He relied upon MHADA and another Vs. Mahesh
Jaggumal Sacchani and others, 2007 (4) ALL M R 678.
35. He also relied upon Hind Rubber Industries Pvt Ltd Vs.
Tayebhai Mohammedbhai, AIR 1996(4) Bombay 389 and submitted
that when a suit relates to the recovery of possession of the tenanted
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premises, merely because BMC is made party and some relief is sought
against it, this Court will not get jurisdiction.
36. He also relied upon United India Insurance Co. Ltd Vs.
Vulcan Association & Ors, 2012 (1) Mh.L.J. 687 and submitted that
the jurisdiction of City Civil Court to entertain suit seeking relief of
injunction and between tenant and landlord is barred.
37. He also relied upon Mansukhalal Dhanraj Jain Vs. Eknath
Ogale, (1995) 2 Supreme Court Cases 665, Nagin Mansukhlal Dagli
Vs. Haribhai Manibhai Patel, AIR 1980 Bombay 123, Mahadev P.
Kambekar Vs. Shree Krishna Woolen Mills Pvt. Ltd, 2019 SCC OnLine
SC 102, Harshad Chimanlal Modi (II) Vs. DLF Universal Ltd. and
another, (2006) 1 Supreme Court Cases 364.
38. On the other hand Advocate for plaintiff submitted that the
subject matter of the suit does not relate to the recovery of possession.
In such circumstances, the suit shall lie only before this Court. In
support of his submission he relied upon Prabhudas Damodar Kotecha
& Anr. Vs. Smt. Manharbala Jeram Damodar and Ors 2007(5) Mh.
L.J. 341, Prabhudas Damodar Kotecha and Others Vs. Manhabala
Jeram Damodar and Anr. (2013) 15 Supreme Court Cases 358,
Ramdhiraj Laxman Dhobi Vs. Ramdas Behari Dhobi 2019(3) Mh. L.J.
444.
39. He also relied upon Rajasthan State Road Transport
Corporation and Another 2009(4) Supreme Court Cases 299 and
Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai
Banking Corporation (2009) 8 Supreme Court Cases 646 and
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submitted that the Civil Court's jurisdiction is plenary and its ouster
cannot be readily inferred.
40. Though the issues of jurisdiction now cannot be tried as a
preliminary issue and though there is no application for rejection of the
plaint on said ground, the issue of jurisdiction is being gone into for a
limited purpose of assess existence of the prima facie case.
41. In view of the stage of the suit, at present only the plaint
pleadings will have to be considered to arrive at a finding on the issue of
jurisdiction.
42. A plain reading of the plaint reveals that, plaintiff has
claimed to be the landlord and defendant No.1 is alleged to be a tenant
in shop measuring 240 sq.ft. It is further case of the plaintiff that
defendant No.1 has encroached upon 180 sq.ft. area situated in front of
the tenanted shop and is raising construction unauthorizedly on said
encroached area. It is also pleaded that by this activity, defendant No.1
is changing the horizontal and vertical dimensions of the shop. On these
allegations the relief sought is of a declaration that defendant No.1 has
violated the conditions of repairs permission and has unauthorizedly
encroached open space and is raising construction. Cancellation of such
repair permission is sought. The declaration is also sought about such an
unauthorized encroachment and that defendant No.1 had changed the
horizontal and vertical dimensions of the suit premises by extending the
area of the shop i.e. by encroachment. Injunction is sought against
defendant No.1 to restrain from such activities.
43. In the case of Hind Rubber Industries the facts were that,
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the tenanted premises were destroyed by fire. The tenant tried to re
erect the same whereupon the landlord filed a suit seeking permanent
injunction to restrain the tenant from doing so. In such circumstances,
the Hon'ble Bombay High Court has held that if such a suit is decreed the
tenant will be deprived of possession of the tenanted premises. It was
also observed that this will also result in depriving a tenant from
discharging his statutory obligation of keeping the suit premises in good
condition and therefore this subject will fall in the Clause "any claim or
question arising out of the Act or any of its provision" and thus, the suit
shall lie before the Court of Small Causes.
44. Considering the facts of present case and the facts before the
Hon'ble Bombay High Court in the authority cited supra, the authority,
with respect, is not attracted in this case. The Clause "any claim or
question arising out of the Act or any of its provision", that was existing
in Section 28(1) of the Bombay Rent, Hotel and Lodging House Rates
Control Act 1947 is absent in Section 33 of the Maharashtra Rent Control
Act, 1999. Admittedly this is not a suit seeking injunction to restrain the
defendant from raising construction of the suit premises that was
destroyed.
45. In United India Insurance Co. Ltd's case, the suit was filed
by the tenants against the landlord seeking permanent injunction to
restrain the landlord from interfering into their rights and in tenanted
open space for car parking. In these circumstances, the Hon'ble Bombay
High Court has held that the jurisdiction to try such suit will be with the
Small Causes Court.
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46. The facts in this case are quiet different and therefore the
authority cited supra, will not apply to the present case.
47. In Mansukhalal Dhanraj Jain's case the suit was filed by
licensee for permanent injunction restraining the licensor from
recovering possession by forcible means from the plaintiff. Such a suit
was considered "relating to recovery of possession".
48. Admittedly, such are not the facts of this case. Hence, with
respect, the authority cited supra, will not apply to present case.
49. In Nagin Mansukhlal Dagli's case the suit was for
declaration that the defendant is trespasser and for a mandatory
injunction for defendants removal from the premises and to hand over
the possession of the flat to the plaintiff. The defendant was claimed to
be trespasser since the license was allegedly expired by the efflux of
time. In this case the facts are quiet different, hence with respect, the
authority cited supra, will not apply to present case.
50. In Mahadev P. Kambekar's case the counter claim was
seeking eviction from the suit land and that was leased out. Such are not
fact of this case. Hence, with respect, the authority cited supra, will not
apply to present case.
51. Advocate for plaintiff has heavily relied upon Prabhudas
Damodar Kotecha's case. In Prabhudas Damodar Kotecha's case
beofre the Hon'ble Bombay High Court, the issue was whether a licensee
mentioned in Section 41(1) of Presidency Small Cause Courts Act, will
include a "gratuitous licensee" and whether the suit by licensor against
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such licensee is tenable before the Small Causes Court. Same issue was
raised before the Hon'ble Supreme Court. However, such issue is not for
consideration before this Court. Therefore, the authorities cited supra,
with respect are not applicable to the present case.
52. In Nahar Industrial Enterprises Limited's case the Hon'ble
Supreme Court has observed that
"32. The result of this inquiry into the diverse views
expressed in this Court may be stated as follows:
(2) Where there is an express bar of the jurisdiction of
the court, an examination of the scheme of the particular Act
to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the
jurisdiction of the civil court.
Where there is no express exclusion the examination of
the remedies and the scheme of the particular Act to find out
the intendment becomes necessary and the result of the
inquiry may be decisive. In the latter case it is necessary to
see if the statute creates a special right or a liability and
provides for the determination of the right or liability and
further lays down that all questions about the said right and
liability shall be determined by the Tribunals so constituted,
and whether remedies normally associated with actions in
civil courts are prescribed by the said statute or not".
53. In Rajasthan State Road Transport Corporation's case it is
observed that, ouster of civil court's jurisdiction is not to be readily
inferred unless the jurisdiction is barred expressly or impliedly by a
statute. A civil court can determined its own jurisdiction.
54. The principles relating to jurisdiction of Civil Court laid
down in the authority cited supra cannot be disputed.
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55. In Ramdhiraj Laxman Dhobi's case Hon'ble Bombay High
Court has observed that
"The submission of Ms. Bookwala, the learned Counsel for
the landlord, that the suit for injunction can not be filed by
the landlord or tenant in the City Civil Court, Mumbai is
not a correct law in view of the ratio laid down in the case
of Prabhudas Damodar Kotech v. Manhabala Jeram
Damodar reported in 2007 (5) Mh. L.J. 341 (FB). This
Court has filed that "essentially seeks to protect tenants
from actions for recovery of possession or those relating
thereto. It does not go further. It specifically omits and
does not protect landlords seeking injunction.
Consequently under Section 28 the inherent jurisdiction
granted to the Special Court is only for matters relating to
recovery of rent, and matters relating to recovery of
possession. The Suit for injunction, therefore, must
continue to remain only in the Civil Court". Thus all the
issues in respect of the tenanted premises can be referred
and decided by the Bombay Small Causes Court. However,
while approaching the City Civil Court, Bombay, the
landlord has pleaded that the tenants have encroached
upon the premises, which is not tenanted premises and,
therefore, he has rightly filed the Suit in the City Civil
Court".
56. In the present case also, the plaintiff has come with a case
that defendant No.1 has encroached upon the open space in front of the
shop and is raising construction. The prayer is also sought relating to the
said encroachment and the construction being carried out there.
Therefore, prima facie this Court has jurisdiction to try and entertain the
present suit.
57. Advocate for plaintiff submitted that defendant No. 1 has
not specifically denied various statements in the plaint and therefore, he
has admitted plaintiff's case. In support of his submission relied upon M.
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Venkataramayya Hebbar (Dead) By Lrs Vs. M. Rajagopal Hebbar and
Others, (2007) 6 Supreme Court Cases 401, Jaspal Kaur Cheema and
Another Vs. Industrial Trade Links and others, (2017) 8 Supreme
Court Cases 592 and Sushil Kumar Vs. Rakesh Kumar, (2003) 8
Supreme Court Cases 673.
58. It needs to be mentioned that, bare perusal of written statement
reveals that defendant No.1 has specifically denied the sum and
substance of the plaint. Therefore, the authority cited supra, does not
apply the case and the contention of advocate for plaintiff cannot be
accepted.
59. In the light of above discussion, thus, it is clear that though
the plaintiff prima facie has succeeded in establishing that this Court has
jurisdiction to try and entertain present suit, on facts the plaintiff has not
established, prima facie, her rights in the suit property. It is also observed
that the plaintiff has not come before this Court with clean hands.
60. It also needs to be observed that plaintiff claims to be the
owner of the shop as well as encroached portion. The plaintiff has
restricted the suit about the alleged activities of defendant No.1 in
respect of the encroached portion and the activities of the construction
thereon. This alleged encroachment however, prima facie is not
established. Still if the plaintiff claims that it is an encroachment, the
plaintiff cannot maintain a suit simplicitor for declaration without
seeking any relief of recovery of possession of the alleged encroached
portion. Thus, maintainability of the suit itself is questionable. In such
circumstances, when the plaintiff's entitlement to the main relief itself is
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doubtful, the plaintiff is not entitled to the interim relief. Thus, I hold
that the plaintiff has failed to establish a prima facie case.
61. Considering the circumstances of this case though the
defendant has come with a stand that the repairs had been carried out
without permission granted by BMC, no such permission is produced on
record. What is produced is a response by defendant Corporation vide its
letter dated 23.09.2017 that the permission is not required to carry out
tenantable repairs. However, when the plaintiff herself is guilty of
suppression of material facts, she cannot build up her case on the
conduct of defendant No.1. Photographs with Commissioner's report
reveal that the work is almost complete. In such circumstances, the
balance of convenience does not lie in favour of plaintiff. Considering
the totality of circumstances, plaintiff has not made out a case of
irreparable loss.
62. Advocate for defendant No.1 relied upon Muni Suvrat
Swami Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad & Ors. (2006)
8 Supreme Court cases 590 and submitted that this Court cannot give
mandatory direction to defendant Corporation to act against the alleged
illegal construction by defendant No.1. I have gone through the authority
cited supra, wherein the Hon'ble Supreme Court has observed that It is
a discretionary of the Municipal Commissioner whether to demolish a
construction or to regularize and the writ of mandamus cannot be issued
to demolish the premises.
63. In this case also this Court will not be in a position to issue
such a direction to defendant Corporation to demolish the alleged illegal
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construction.
64. Plaintiff has also sought cancellation of repairs permission.
As already discussed there is no such permission which can be canceled.
65. Hence, I answer point Nos.1 to 3 in the negative and in
response to point No.4 pass following order:
ORDER
1. Notice of Motion No.3064 of 2019 is dismissed.
2. Costs in cause.
(A.N. MARE)
Judge,
01.10.2019 City Civil Court, Mumbai.
Dictated On : 01.10.2019
Transcribed on : 04.10.2019
HHJ Signed on : 11.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18.10.2019 12.19 p.m. Mahendrasing D. Patil (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE (CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
01.10.2019
JUDGEMENT /ORDER signed by
P.O. on
11.10.2019
JUDGEMENT /ORDER uploaded
on
18.10.2019
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