Bombay High Court
Shivashankar Swami vs Municipal Corporation Of Greater ... on 12 December, 2014
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO. 11 OF 2013
IN
FIRST APPEAL NO. 174 OF 2005
(F.A.decided on 06-09-2013)
Mr. Shivashankar Swami, ) ... Petitioner/
R/at Room No.1, Philip Misquitta Chawl, ) Applicant.
Milan Subway Road, Santacruz (W), )
Mumbai -400 054. )
V/s.
1. The Municipal Corporation of Greater )
Bombay, a statutory Corporation )
established under the BMC Act,1888, )
Head office at : Mahapalika Marg, )
Fort, Mumbai-400 001. )
)
2. Mrs. Margret Hubert Pereira, ) ... Respondents.
Christian, Indian Inhabitant, )
nd
Anu Building, D/43, 2 floor, )
Milin Subway, Santacruz (W), )
Mumbai -400 054. )
---
Mr. P.S. Dani, Senior Counsel i/by Mohit Jadhav, Advocate for
the for the Petitioner/ Applicant.
Mr. Vinod Mahadik, Advocate for Respondent No.1 -BMC.
Mr. Saeed Akhtar a/with Mr. Khushnood Akhtar, Hitesh Thorat
& Rehan Ansari, Advocate for Respondent No.2.
---
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CORAM : A.P. BHANGALE, J.
RESERVED ON : 09th DECEMBER, 2014.
PRONOUNCED ON : 12th DECEMBER, 2014.
ORDER :
1 Heard submissions at the bar and considered the
pleadings of the parties before the Court.
2 Review petitioner / applicant by this review
petition prays for recalling / setting aside the Oral Judgment
and order dated 6th September 2013 passed in First appeal
no.174 of 2005 which was preferred from dismissal of the L.C
Suit no.3951 of 1999, dismissed by the Bombay City Civil Court
on 31-08-2004. Upon inspection dated 07-01-1999 by the
Assistant Engineer 'K'-ward of the Municipal Corporation of
Greater Mumbai, an unauthorized construction of the
Mezzanine floor was detected. Subject matter of the suit
mezzanine floor structure described in the notice issued under
Section 354-A of the Mumbai Municipal Corporation Act.
Municipal Corporation of Greater Mumbai had issued notice
dated 05-07-1999 to the Plaintiff for an unauthorized
construction of the mezzanine floor admeasuring 21 feet x 19
feet, constructed with B.M. walls and AC sheet roof in the suit
room. The mezzanine floor was constructed without obtaining
the prior permission of the MCGM, required according to law.
The Applicant - Plaintiff therein had sought to restrain the
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Municipal Corporation from demolishing the said unauthorized
suit structure pursuant to the notice.
3 The trial court after framing the issues, recording
the evidence and hearing the parties, had dismissed the Civil
Suit by its detailed judgment and order dated 31-08-2004 and
the unsuccessful plaintiff by way of the first appeal filed before
this court had challenged the Judgment and order delivered by
the trial court, dismissing the suit.
4 The main contention of the applicant is that when
the first appeal was called on for hearing before this Court, the
Advocate of the applicant was busy before other court and it is
contended that the hearing of the first appeal ought to have
been adjourned on that ground instead of passing the oral
Judgment and order on merits. Learned Advocate for the
applicant relied upon ruling in Sarman Singh v/s Kishan
Singh through Lrs. reported in 2007(3) MLJ 839(SC) and the
ruling in Jao @ John Fernandes Through Lrs V/s
Bernandian Fernandes, reported in 2014(5) Mah.L.J 56.
5 In Sarman Singh's case (supra) Second appeal
was decided by referring to the merits of the case by the single
Judge of the P & H High Court on the day when it was listed
and while on that day there was no appearance on behalf of
the appellant/applicant. The respondents were yet to put in
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appearance. It was contended in that case that the matter was
listed at serial no. 260 and when it was called out, learned
Advocate for the appellant was busy arguing before Hon'ble the
Chief Justice. By the time the assisting counsel for the
appellant reached the Court to note the next date, the learned
single Judge had dismissed the appeal for want of prosecution.
In the facts of that case which were undisputed, the Apex Court
observed that in view of the factual scenario projected and
admitted as correct, the mere fact that the Second appeal was
dismissed on merits, it could not have been a ground to refuse
restoration of the second Appeal. In another case cited of John
Fernandes (supra), Single Judge of Bombay High Court at
Panaji Bench was hearing Second Appeal on the substantial
question of law as to whether the first appellate court was
competent to decide the application for condonation of delay in
filing the appeal and consequently the appeal on merits, when
on the date of hearing none appeared on behalf of the
appellants and whether the Court was bound to dismiss the
application / appeal for want of prosecution or for non-
appearance in view of Order XLI ,Rule 17 of the Civil Procedure
Code instead of hearing and deciding the application on
merits? The Court held in the negative and observed that
opportunity of hearing should have been given to the applicant
herein in the interest of justice.
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6 It is submitted that once an appeal is admitted,
Rules 16 onwards of Order XLI would apply. Rule 17 provides
for `Dismissal of Appeal for Appellant's Default'. It reads thus :
17. Dismissal of appeal for appellants' default (1) Where
on the day fixed, or on any other day to which the
hearing may be adjourned, the appellant does not
appear when the appeal is called on for hearing, the
Court may make an order that the appeal be dismissed.
Explanation--Nothing in this sub-rule shall be construed
as empowering the Court to dismiss the appeal on the
merits.
Hearing appeal ex parte. - Where the appellant appears and the
respondent does not appear, the appeal shall be heard ex parte.
The submission on behalf of the applicant is that this court
ought not to have heard and decided the first appeal on
merits as per impugned judgment and order. It is further
submitted that the first appeal be restored to the file and be
fixed for re-hearing.
7 Learned Advocates for the respondents opposed the
Review application contending that prayer in the application
made is for Review of the judgment and order passed by this
court and not for restoration of the first appeal. The application
for review is strongly opposed on the ground that the applicant
had abused the process of law as he had after obtaining the
interim injunction order against the MCGM in the pending suit,
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constructed the unauthorized mezzanine floor in the guise of
interim order of injunction obtained against the Municipal
Corporation. It is contended that in the guise of the review
application, the applicant want this court to rehear the first
appeal which was finally decided after repeated adjournments,
at final hearing stage by the well reasoned judgment & order
on merits. It is submitted that there is no any error apparent
on the face of the record, warranting interference in the
Judgment and order passed by this court in the first appeal.
According to learned Advocates for the respondents above
rulings and provisions cited on behalf of the Review applicant
are not attracted in the facts and circumstances of the first
appeal decided by this court as it was repeatedly fixed for final
hearing and was pending since long before the judgment and
order in question.
8 This Court has always insisted advocates to appear
and argue the case especially when it is called out for final
hearing. There is nothing wrong in it. It is the duty of the
advocate having accepted the brief from the client to faithfully
attend the final hearing of the cases which are pending since
long. Failure to appear or to make arrangement for to argue at
final hearing would be unfair not only to the client but also
discourteous to the Court and must be severely deprecated. At
the same time, this Court has also emphasized doing justice to
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the cause wherein it is appropriate that both the Advocates in
the Appeal, representing the parties, attend before the Court
and they are heard. It has been noted by the Court that once a
party engage advocate/s, the party concerned has a legitimate
expectation that advocate concerned will attend and appear
when the case will be taken up for final hearing and when the
Court calls upon the counsel to make submissions. It is, keeping
in view these principles that the Court does not normally
proceed to hear the matter in absence of the respective
counsel. Even otherwise, in my view the power of review has
to be exercised with exceptionally and with greatest
circumspection in the background of the facts and
circumstances of each case. Under Order 47 Rule 1 of the Civil
Procedure Code, the judgment in question may be open to
review if there is a mistake or an error apparent on the face of
the record. Review jurisdiction has a limited scope and purpose
- (i) when new and important matter or evidence is discovered
which was not within the power or knowledge of the party
despite due diligence and cannot be allowed to be an Appeal in
disguise. (ii) Such important evidence could not be produced at
the time when decree was passed or order made. (iii) On
account of some mistake or error apparent on the face of the
record or any other sufficient reason.
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9 In the present case, it appears that before this Court
at the admission stage on 29th April 2005 both learned counsel
had agreed that appeal may be heard finally. Liberty was
granted accordingly for the respondent no. 2 to mention for
fixing early date of hearing. By order dated 08-12-2006 this
Court directed the office to post the first appeal no. 174 of
2005 for final hearing on 12-02-2007. By further orders dated
28-02-2007, 25-01-2008, 05-02-2010, 22-10-2010 and on 07-
06-2011 the appeal was called for hearing twice in the day and
was dismissed in view of Order 41 Rule 17 of the Civil
Procedure Code. This Court had graciously restored the first
appeal by order dated 9th June 2011. Thus First Appeal came
up for final hearing pursuant to the order dated 25-04-2012
and 28-06-2012. The Office of this Court had noted that the
First appeal is ready for final hearing and therefore it was
heard finally by this Court and decided. These fact are
indisputable from previous orders passed and note-sheets in
record of the First Appeal No. 174 of 2005.
10 It would amount to abuse of the legal process if
recourse to normal long lasting remedy of civil suit is utilized
by an unscrupulous litigant with a view to abuse the process of
law as it would generally result in obvious procrastination for a
responsible planning authority to espouse the action against
offending persons responsible for unauthorized constructions.
The offending litigant would use every potential means to
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ensure that the inordinate delay occurs in the disposal of the
suit and appeals, once a stay or ad-interim injunction order is
obtained. The suit or appeal lingers on for many years in
Bombay City Civil Court and in upper courts due to mounting
arrears of Civil litigation. The legislative intention is to act as
early as possible in public interest to ensure that the urgent and
expeditious action is taken against illegal constructions. It is
experienced that in city of Mumbai there is growing tendency
to construct unlawfully, obtain interim injunction order from
the court against the Municipal Corporation and then continue
to cause delay on some pretext or the other to procrastinate
the legal and logical outcome in the judicial proceedings
indefinitely. Continuing protection if made available for the
unauthorized structures in such cases, may amount to
encouraging and perpetuating the illegality and may result in
abuse of the legal process.
11 Therefore after having considered the submissions
at the Bar and record of the case, I find that this was one such
case in which the plaintiff- appellant did not deserve long rope
to enjoy the continuing protection of the offensive act of
unauthorized construction merely on the pretext that advocate
concerned was not available when the first appeal was called
on for final hearing; after repeated adjournments obtained,
and was decided on merits after hearing the advocates on
record available to represent the parties. I do not find any
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mistake or error on the face of the record. In the facts and
circumstances, no any exceptional or sufficiently good
ground is made out so as to recall or set aside the Judgment
and order passed on merits of the first appeal.
12 For reasons stated above, therefore, the Review
Petition No. 11 of 2013 is dismissed with costs.
ig (A.P.BHANGALE, J.)
.....
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