Bombay High Court
Mr. Mohammed Afzal Iqbal Khan vs The Municipal Corporation Of ... on 10 June, 2016
Bench: R.M. Savant
FA-991-16(915)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.991 OF 2016
WITH
CIVIL APPLICATION NO.2583 OF 2016
Mr. Mohammed Afzal Iqubal Khan )
Age 42 Yeard Occ Business )
An adult Indian Inhabitant, )
Azad Nagar, Near Janta Nagar Society )
Jasmin Mill Road, Near Mahim Fatak, )
Dharavi Mumbai 400 017 ) ..Appellant
Vs.
1 The Municipal Corporation ig )
of Greater Mumbai )
Having its registered office at )
Mahapalika bhuvan, Mahapalika Marg, )
Mumbai 400 001 )
2 The Assistant Municipal Commissioner )
G/North Ward Office, )
Harishchandra Yevle Marg, )
Dadar (W) Mumbai 400 028 )
3 Maulesh Builders Pvt Ltd )
Surya Mahal, 4th floor, )
5 Burjorji Bharucha Marg, )
Fort, Mumbai 400 001 ) ..Respondents
Mr. S. P. Srivastava for the Appellant /Applicant
Mrs. M. R. Bhoir for the Respondent Nos.1 & 2
Mr. Salik Khan for the Respondent No.3
CORAM : R. M. SAVANT, J.
DATE : 10th JUNE, 2016
ORAL JUDGMENT
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1 Admit.
2 Having regard to the challenge raised heard forthwith.
3 The above First Appeal is directed against the order dated 13-4-
2016 passed by the Learned Ad-hoc Judge, Greater Mumbai, by which order,
the application Exhibit 6 filed by the Respondent No.3 herein i.e the Defendant
No.3 to the Suit came to be allowed and resultantly the Plaint came to be
rejected under Order VII Rule 11(d) of the Civil Procedure Code (CPC).
The facts giving rise to the Appeal can in brief be stated thus:
4 The Appellant herein is the original Plaintiff who has filed the Suit
in question being L.C. Suit No.1776 of 2015. The Plaintiff claims to be in
occupation and possession of a hut situated at Azad Nagar Near Janta Nagar
Society, Jamin Mill Road, (60 feet road) opp Santosh Bar, Near Mahim Fatak,
Dharavi, Mumbai 400 017. This is as per the description given in paragraph (1)
of the plaint. The Respondent Nos.1 and 2 herein are the Defendant Nos.1 and
2 to the Suit and it is the case of the Plaintiff that the Defendant No.1 is the
owner of the suit property. The Defendant No.3 i.e. the Respondent No.3
herein as per the Plaintiff is a builder and developer appointed by the Dharavi
Azad Nagar Co-operative Housing Society Ltd, for development. In the said
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Suit, the Plaintiff is claiming the following reliefs by way of prayer clauses (a)
and (b) which for the sake of ready reference are reproduced herein under :
(a) That this Hon'ble Court be pleased to
declare that the Defendants are not entitled to
disturb and/or interfere in the peaceful use,
occupation and possession of the Plaintiff in the
suit premises and/or demolish the suit premises
i.e. Hut situated at Azad Nagar Near Janta Nagar
Society, Jamin Mill Road, Near Mahim Fatak,
Dharavi, Mumbai 400 017, in any manner
whatsoever without following the due process of
law.
(b) That this Hon'ble Court be pleased to grant
permanent injunction restraining the Defendants
their servants and agents from disturbing and/or
peaceful use, occupation and possession of the
Plaintiff in the suit premises and/or demolishing
the suit premises i.e. Hut situated at Azad Nagar
Near Janta Nagar Society, Jamin Mill Road, Near
Mahim Fatak, Dharavi, Mumbai 400 017, in any
manner whatsoever without following the due
process of law.
5 In the said Suit, the Plaintiff it seems moved a draft Notice of
Motion which was an application for temporary injunction. The injunction
sought was that the Defendant No.3 should not demolish his structure without
following the due process of law. It seems that on the same day i.e. 5-8-2015,
the Defendant No.3 had filed an application under Section 9A and also under
Order 7 Rule 11 of the CPC for dismissal of the Suit. Since the Notice of Motion
filed by the Plaintiff for temporary injunction came to be allowed on the same
day itself, the application in so far as Section 9A is concerned, had turned
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infructuous and what remained was only the application under Order 7 Rule
11 of the CPC. The Plaintiff opposed the said application and filed his reply to
the said application and denied the ground on which the rejection of the plaint
was sought by the Defendant No.3.
6 The Trial Court considered the said application and has by the
impugned order dated 13-4-2016 has allowed the application and has rejected
the Plaint under Order 7 Rule11(d) of the CPC. The Learned Judge as can be
seen from the impugned order proceeded on the correct premise that the
application under Order 7 Rule 11(d) would have to be considered on the
touchstone of the averments made in the plaint. As indicated above the
substantive reliefs sought in the Suit are by way of prayer clauses (a) and (b)
which have been already reproduced herein above for ready reference.
However, whilst dealing with the reliefs sought in the Plaint, the Learned Judge
in paragraph (5) has observed to the following effect :
"By filing present suit the Plaintiff has challenged
action of Defendant No.2 and prayed for
declaration that defendant no.1 and 2 are not
entitled to give any sanction or permission to the
defendant no.3 to carry out any construction
activity in the suit property and for various
reliefs. The suit of the Plaintiff is barred under
Section 42 of the Maharashtra Slum Act (I.C. &
R.) Act 1971. From the provisions of alw also it is
clear that the suit is not maintainable in this
court as this court does not have jurisdiction to
try and entertain this suit. Therefore when the
jurisdiction does not lie with the court, normally
the plaint should be returned. However, the
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Plaintiff has already filed the proceeding by
invoking the provisions of Maharashtra Slum Act
(I.C. & R) Act 1971. Since the Plaintiff has
already filed Appeal before Appellant Authority
under Slum Act, instead of returning the plaint
for presenting in the proper court, order of
rejecting the plaint is required to be passed."
7 Hence the Learned Judge has proceeded to consider the
application on the basis that the Plaintiff has challenged the action of the
Defendant No.2 and prayed for declaration that the Defendant Nos.1 & 2 are
not entitled to give any sanction or permission to the Defendant No.3 to carry
out any construction activity in the suit property and for various reliefs. The
Learned Judge also adverted to the fact namely that the Plaintiff has already
filed the proceeding by invoking the provision of Maharashtra Slum Act (I.C.
& R) 1971. The observation made by the Learned Judge in respect of the reliefs
sought in the Suit are not borne out by the said prayer clauses (a) and (b). It is
also not clear as to on what basis the Learned Judge has observed that the
Plaintiff has already filed an Appeal before the Appellate Authority under the
Slum Act. It is trite that the Plaint can be rejected under Order 7 Rule 11 of the
CPC, if the Suit is barred under any of the clauses of Rule 11. In my view, the
Learned Judge has proceeded on an erroneous premise as regards the reliefs
sought by the Plaintiff in the Suit in question namely of a declaration sought
and that the Defendant Nos.1 and 2 are not entitled to give any sanction when
the said prayer clauses (a) and (b) do not bear out any such reliefs sought by
the Plaintiff. The consideration of the application in the said circumstances by
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the Learned Judge is therefore vitiated. The impugned order dated 13-4-2016
is therefore required to be set aside and the application would have to be
relegated back to the Trial Court for a denovo consideration of the same. On
remand the consideration by the Learned Judge would have to be in terms of
the observations made in the instant order and having regard to the provisions
of Order 7 Rule 11 of the CPC. On remand the application to be decided latest
by 31-7-2016. The Appeal is allowed to the said extent and to accordingly
stand disposed of.
8 In view of the disposal of the above Appeal, the Civil Application
does not survive and to accordingly stand disposed of as such.
9 Needless to state that the contentions of the parties on merits are
kept open for being urged before the Trial Court. Further needless to state that
the application would be tried on its own merits and in accordance with law.
[R.M.SAVANT, J]
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