Final Order 1

Order Details: Notice of Motion
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MHCC010017572019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4688 OF 2019
IN
SUIT NO.1804 OF 2018
Mr. Suresh Subai Rajbhar ]..Plaintiff.
V/s.
1. Mr. Ashok Kumar Chaitar ]
Rajbhar and others. ]..Defendants
Advocate Mr. Anand Charanbir for plaintiff.
Advocate Mr. Rajesh Singh for defendant No.1.
Advocate Mr. Khajotia for defendant No.2.
Advocate Ms. Ruchi Gandhi for defendant No.3.
Advocate Mrs. Chandramore for defendant No.4/BMC.
Advocate Mr. Trivedi for defendant Nos.5 and 6/SRA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 25th OCTOBER 2023
ORAL ORDER
The defendant No.1 has taken out present Notice of Motion
for rejection of plaint under Order-VII Rule 11 of the Code of Civil
Procedure, 1908 or in alternate for return of plaint under Order-VII
Rule-10 of C.P.C.
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2 It is contention of defendant No.1 that the plaintiff has filed
present suit No.1804 of 2018 seeking declaration as well as injunction
and other reliefs, more particularly prayed in the plaint. The plaintiff
has taken out Notice of Motion No.2884 of 2018 for urgent and ad-
interim and interim reliefs which came to rejected. Thereafter, the
plaintiff has preferred Appeal from Order (ST) No.304 of 2019 before
the Hon’ble High Court of Judicature at Mumbai. In the aforesaid A.O.,
the plaintiff has taken out the Civil Application (St) No. 306 of 2019 for
condonation of delay. The Hon’ble High Court vide its Order dated
24.07.2019 has pleased to dismiss the said Appeal from Order as well as
Civil Application and has pleased to expedite the hearing of the suit.
3. It is further contended that late Mr. Chaitar Ferai Rajbhar
was the original owner of the suit premises and after his demise, the
legal and surviving heirs of the original owner is entitled for the
permanent alternate accommodation to be allotted in lieu of the suit
premises. Late Mrs. Shyamdevi Rajbhar is legally wedded wife of late
Mr. Chaitar Ferai Rajbhar and the defendant No.1 is the only legal and
surviving heir of the original occupant of the suit premises. Admittedly,
the plaintiff is not claiming to be a legal heir of late Mr. Chaitar Ferai
Rajbhar who is the father of defendant No.1 whose name is reflected as
eligible occupant in Annexure-II which was prepared by the Competent
Authority on 29.05.2000. The plaintiff is relying upon undated
documents allegedly executed between the plaintiff and uneducated
wife of the said deceased and this defendant No.1. The alleged transfer
documents, relied upon by the plaintiff in support of his claim, are
forged and fabricated and does not create any right in favour of the
plaintiff.
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4. It is further contended that in Testamentary Petition
No.1033 of 2014 filed by defendant No.1, the Letters of Administration
dated 21.01.2016 was issued by the Hon’ble High Court in favour of
defendant No.1, which is till date legal, valid and binding document in
rem. Though the plaintiff vide Miscellaneous Petition No.65 of 2017,
has challenged the grant of said Letter of Administration dated
21.01.2016, said Miscellaneous Petition has been dismissed by the
Hon’ble High Court vide its Order dated 08.08.2017. The defendant
No.1 is having several documents to show that defendant No.1 along
with his father was in physical use, occupation and possession of the
suit premises, much prior to the year 1995. The defendant No.1’s
mother i.e. Late Shyamdei Rajbhar was permanently settled at her
native places and never resided at the suit premises. The defendant
No.1 and his father used to work in Mumbai and sent money to his
mother at native place. Therefore, the plaintiff’s claim that defendant
No.1’s mother sold him the suit premises vide suit agreement, allegedly
executed in Mumbai is false and baseless. The alleged Agreement for
Sale, Affidavit or Affidavit-cum-Declaration relied by the plaintiff are
forged and fabricated and the same is neither executed nor signed by
the defendant No.1 or his mother. After getting the knowledge of the
preparation of the aforesaid forged and fabricated documents, the
defendant No.1 has immediately lodged complaint against the plaintiff.
5. It is contended that the plaintiff has never resided at the
suit premises and he was staying along his uncle Mr. Jairaj Narsu
Rajbhar who was having his hutment in the same vicinity. The plaintiff
was never resided in the suit premises nor the physical possession of the
same ever given to him at any time and the said fact is evident from the
plaintiff’s own documents As the defendant No.1 was having the
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rightful possession of the suit premises therefore, the Authority concern
included his name in the Annexure-II and thus, he has been held
eligible for permanent alternate accommodation in lieu of the suit
premises. The members of defendant No.2 Society has proposed
Redevelopment Scheme under S.R.A. and in pursuance thereof,
appointed the defendant No.3 as their developer to construct the rehab
building under Regulation 30(10) of the Development Control
Regulation, 1991.
6. It is further contention of the defendant No.1 that vide
Application dated 31.01.2017, defendant No.1 has applied to the Asst.
Registrar Co-operative Societies, SRA, Bandra praying therein for
direction against the developer for paying the provisional arrears of rent
or in lieu thereof to grant temporary alternate accommodation in lieu of
his old premises. The Asst. Registrar Co-operative Societies, SRA,
Bandra has pleased to allow the said Application vide its Order dated
30.05.2017. However, the said order was not complied with by the
defendant Nos.2 and 3. Therefore, defendant No.1 approached to the
Joint Registrar, SRA, Mumbai for necessary directions and accordingly,
the defendant No.3 was directed to release the arrears of rent within 15
days. Thereafter, defendant No.3 failed and neglected to pay the
arrears of rent and hence, defendant No.1 lodged complaint with the
Joint Registrar, SRA, Bandra, Mumbai.
7. It is further contended that admittedly, the defendant No.1
is entitled for alternate accommodation in lieu of his old premises, as
his name is incorporated in the Annexure-II dated 29.05.2000 as
eligible occupant. Until the said Annexure-II dated 29.05.2000 is set
aside either by Competent Authority and/or by Court of Law, this Court
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cannot direct any of the defendants to hand over the legal and/or
physical possession of the permanent alternate accommodation which is
to be allotted in lieu of his old premises. Further, in view of specific bar
under section 42 of the Maharashtra Slum Area (Improvement,
Clearance and Redevelopment) Act, 1971, this Hon’ble Court do not
have jurisdiction to try and entertain the issue involved in the present
suit. As the remedy lies with Competent Forum, constituted under the
SRA Act, therefore the present suit of the plaintiff is required to be
either returned to him under Order-VII Rule-10 of C.P.C. or in alternate
the same is liable to be rejected under Order-VII Rule-11 of C.P.C.
Hence, prayed for allowing present Notice of Motion.
8. The plaintiff has filed Affidavit-in-reply to the Notice of
Motion and strongly opposed the same by submitting that the Notice of
Motion is not maintainable and is liable to be rejected. It is contended
that the plaintiff has filed present suit wherein he has prayed that the
Agreement for Sale dated 17.01.2001 and the other documents in the
nature of affidavit, general power of attorney and affidavit dated
17.01.2001 have been executed by Manjari alias Somadevi and physical
possession of the suit premises handed over to the plaintiff on
17.01.2001 wherein the plaintiff was residing upto 2014. The other
relief sought by the plaintiff is in the nature of declaration that the
documents executed with the plaintiff by the original occupier are
binding upon the defendant No.1 and therefore, the defendant No.1
cannot claim any right in the structure which was never in possession of
the defendant No.1 or his mother and uncle. The relief in the nature of
civil relief can be agitated before the Civil Court. The other reliefs are
also civil in nature which only the civil Court has jurisdiction to decide
the suit. The claim of defendant No.1 and the basis of getting the order
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form the S.R.A which is under fraud and therefore any order obtained
under fraud Civil Court has jurisdiction. The plaintiff has denied that
the defendant No.1 is residing in the suit premises since 17.01.2001 and
has no document to show that he has been residing from 17.01.2001
upto 2014 when the suit premises was demolished.
9. It is further submitted that the plaintiff was lawful
purchaser of the suit premises and in possession of the suit premises
from 17.01.2001 and it is matter of record that the defendant No.1 is
one of the witnesses in the document executed in favour of the plaintiff.
The suit premises was sold by the mother of defendant No.1 and duly
witnessed by defendant No.1 and Chouthi Ferai Rajbhar and the
electricity bill was transferred in the name of the plaintiff from the
name of Chouthi Ferai Rajbhar who was residing in the suit premises
prior to 17.01.2001. Defendant No.1 has no right to claim permanent
rehabilitation tenement under the Scheme of rehabilitation and on the
basis of Annexure-II. Annexure-II does not give any right of any claim
of permanent rehabilitation under the Scheme to any person including
defendant No.1. Since the original Annexure-II was never issued in the
name of defendant No.1 and the name of defendant No.1 has been
incorporated by claiming legal heir and not bringing on record the
document of transfer executed with the plaintiff and therefore, the
defendant No.1 has no right of claim of rehabilitation under the SRA
Scheme. All the claims made by the defendant No.1 are false and
baseless.
10. It is further submitted that suit has been expedited by the
Hon’ble High Court which clearly shows that the suit is required to be
taken to its logical end. It is also matter of record that the defendant
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No.1 has by fraudulent means and by making false statement got his
name incorporated at Serial No.282 of the Annexure-II wherein the
name of the father was shown as eligible. The order of the Asstt.
Registrar Co-operative Society, SRA has been passed on the basis of
manipulation and fabricated documents and by committing fraud and
for any order obtained by fraud the Civil Court has jurisdiction.
Therefore, it is denied the suit is barred by Bar under section 42 of the
Maharashtra Slum Areas (Improvement, clearance and Redevelopment)
Act, 1971. Hence, it is prayed that Notice of Motion be dismissed with
costs.
11. Perused Notice of Motion and Affidavit in support of Notice
of Motion as well as Affidavit-in-reply filed by the plaintiff. Also perused
plaint. Heard learned advocates for both the parties at length.
12. The following points arise for my determination and I have
recorded my findings to them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the defendant No.1 proves that
the plaint is liable to be rejected under
Order-VII Rule-11 of the C.P.C. or in
alternate for return of plaint under Order-
VII Rule-10 of the C.P.C. ?
In the
Negative
2 What order? As per the final order
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R E A S O N S
AS TO POINT NO.1 :
13. It appears from the pleadings in Notice of Motion that
defendant No.1 is seeking return of plaint under Order-VII Rule-10 of
C.P.C. or in alternate for rejection of plaint under Order-VII Rule-11 of
C.P.C. on the ground that in view of Specific Bar under section 42 of the
Maharashtra Slum Areas (Improvement, clearance and Redevelopment)
Act, 1971, this Court has not jurisdiction to try and entertain the issue
involved in the present suit, as remedy lies with Competent Forum,
constituted under the Sra Act. Both the parties have given detail facts of
the case in their pleadings which are not required to be reproduced
again.
14. In short, it can be said that the plaintiff is claiming that
defendant No.1’s mother sold him the suit premises vide Sale
Agreement dated 17.01.2001 and executed documents vide Agreement
for Sale, Affidavit or Affidavit-cum-Declaration in his favour. The
defendant No.1 was also witness to the said documents. The plaintiff
has also claimed that the plaintiff was in use, occupation and possession
of the suit premises. However, defendant No.1 on the basis of false and
fabricated documents got his name entered in Annexure-II which was
prepared by Competent Authority. Further, the plaintiff has claimed
that defendant No.1, by fraudulent means and by making false
statement got his name incorporated at Serial No.282 of the Annexure-
II wherein the name of the father was shown as eligible. The order of
the Asstt. Registrar Co-operative Society, SRA has been passed on the
basis of manipulation, fabricated and by committing fraud. Therefore,
for challenging any order obtained fraudulently, the Civil Court has
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jurisdiction to try and entertain the suit. Whereas, according to
defendant No.1, defendant No1 and his father were in actual possession
of the suit premises and accordingly, Annexure-II was prepared by the
Competent Authority wherein at serial No.282, the deceased Mr.
Rajbhar Chaitar Ferai has been held eligible for permanent alternate
accommodation in lieu of the said premises. According to the
defendant No.1, in view of specific bar under section 42 of the
Maharashtra Slum Area (Improvement, Clearance and Redevelopment)
Act, 1971, this Court has no jurisdiction to try and entertain the suit.
15. In support of their submission, both the parties have filed
written notes of arguments and they have also relied upon authorities.
In support of his contentions, defendant No.1 has relied upon following
authorities;
(1) S.P. Chengalavaraya Naidu (Dead) by L.Rs. V/s.
Jagannath (Dead) by L.Rs. and others reported in AIR
1994 SC853,
(2) Housing Development and Infrastructure Ltd. And
Another V/s. State of Maharashtra and others reported in
Writ Petition No.2499 of 2013 with Writ Petition No.926 of
2013,
(3) Colonel Shrawan Kumar Jaipuriyar Alias Sarwan
Kumar Jaipuriyar V/s. Krishna Nandan Singh and Anoter
reported in AIR Online 2019 SC 2176,
(4) Rajendra Bajoria and Others V/s. Hemant Kumar
Jalan and others reported in AIR Online 2021 SC 753,
(5) R.K. Roja V/s. U.S. Rayudu and Another reported in
AIR 2016 S.C.3282,
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(6) Soumik Sil V/s. Subhas Chandra Sil reported in AIR
2014 S.C. 1931,
(7) T. Arvandandan V/s. T.V. Satyapal and another
reported in AIR S.C. 2421,
(8) Saleem Bhai and others V/s. State of Maharashtra
and others reported in 2003 AIR 2014 SCW 174 and
(9) Shipping Corporation of India Ltd V/s. Machado
Brothers and others reported in AIR 2004 S.C. 2093,
16. As against this, the plaintiff has relied upon the
following authorities;
(1) Abdul Sattar Haji Usman and Another V/s. The
Archibishop of Bombay and others dated 12.04.2016,
(2) Lallu Vas (Since Deceased through Lrs V/s. State of
Maharashtra and others in Civil Appeal No.1973 of 2019
dated 22.02.2019 and
(3) Kamal Mills Ltd. V/s. State of Bombay reported in
1965 AIR 1942.
17. I have gone through the authorities relied upon by both the
parties. The Authority of Hon’ble Bombay High Court in the case of
Abdul Sattar Haji Usman (Supra) is very much relevant to the facts of
the present case. In the said Authority, the question before the Hon’ble
High Court was whether the jurisdiction of this Court to entertain the
suit and grant the reliefs claimed therein is barred by any law,
particularly Section 42 of the Slum Act.
18. It was observed that, “Secondly, it is submitted that apart
from the express bar under section 42, the Slum Act being an
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acquisition law, providing its own machinery for seeking redressal
against grievances in connection therewith, by necessary implication,
the power of civil courts to take cognizance of such grievances under
section 9 of the Code of Civil Procedure stands excluded.” The Hon’ble
High Court has observed that “The bar excluding the jurisdiction of civil
courts does not operate in cases where the plea is of nullity, which goes
to the root of the matter. A fraudulent act or an act ultra vires the law
providing for it, are nullities where despite even an express bar of
jurisdiction the civil courts can interfere.” Lastly, the Hon’ble Bombay
High Court held that “the present suit being based on a plea of fraud
against the State in a matter of acquisition under the Slum Act and also
a plea of ultra vires, the suit is clearly maintainable on the pleadings of
the plaintiffs As of today, there is no evidence to either sustain or
decline the pleas of fraud and ultra vires. The matter is argued on a
demurrer, based on pleadings and admitted documents on record.
There is no case for dismissing the suit for want of jurisdiction. The
preliminary issue is, thus, answered in the negative.”
19. Further, in the authority of Qari Mohammed Zakir Hussain
and others V/s. Municipal Corporation of Greater Mumbai and others
reported in 2002(2) BomCR 98. It is held by the Hon’ble Bombay High
Court that;
“What is to be seen is whether the allegations in the
plaint are of such a nature that the plaintiff complains that
the offending action is mala-fide and in transgression of the
authority. If such are the allegations, then the suit would
obviously not be barred in spite of the bar of jurisdiction
provided for under section 42 of the Act, 1971 for, such a
suit would be outside the purview of the said provision
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because the offending act is alleged to have been
committed not in good faith or intended to be done under
the Act, but for extraneous reasons.”
20. Thus, from the observations made by the Hon’ble Bombay
High Court in the above citations it is crystal clear that, if there are the
allegations of fraud and collusion in the suit, then the suit would not be
barred in spite of the bar of jurisdiction provided for under section 42 of
the Act, 1971. It is settled legal position that for deciding Notice of
Motion under Order-VII Rulee of C.P.C., the averments made in the
plaint are germane and only needs to be taken into consideration. In
the present suit, the plaintiff has pleaded that defendant No.1 has by
fraudulent means and by making false statement got his name
incorporated at Serial No.282 of the Annexure-II wherein the name of
the father was shown as eligible. The plaintiff has pleaded that the
order of the Asstt. Registrar Co-operative Society, SRA has been passed
on the basis of manipulation and fabricated documents and by
committing fraud and therefore, in view of observations made by the
Hon’ble Bombay High Court in the above authorities, the jurisdiction of
the Civil Court is not ousted despite of Specific Bar under section 42 of
the Maharashtra Slum Areas (Improvement, clearance and
Redevelopment) Act, 1971. Thus, it is crystal clear that this Court has
jurisdiction to try and entertain the suit. Therefore, claim of defendant
No.1 for return of plaint under Order-VII Rule-10 of the C.P.C. and for
rejection of plaint under Order-VII Rule-11 of the C.P.C. is liable to be
rejected. Thus, for all above reasons, I hold that defendant No.1 has
failed to make out the case for allowing Notice of Motion. Hence, I
answer point No.1 in the negative.
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AS TO POINT NO.2 :
21. As the defendant No.1 failed to make out case for rejection
of plaint under Order-VII Rule-11 and for return of plaint under Order-
VII Rule-10 of the C.P.C. of the C.P.C., the present Notice of Motion is
liable to be dismissed. Hence, I proceed to pass the following order:-
ORDER
Notice of Motion No.4688 of 2019 stands dismissed with
costs and disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 25/10/2023 Gr. Bombay.
Dictated on : 25/10/2023
Transcribed on : 27/10/2023
Signed on : 02/11/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/11/2023 At 03.00 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
25/10/2023
Judgment/Order signed by P.O. on 02/11/2023
Judgment/Order uploaded on 02/11/2023
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