Bombay High Court
Kashinath @ Kashiram P. Bhoir vs M/S. Nandu Developers on 22 March, 2016
Bench: R.P. Sondurbaldota
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 652 OF 2013
Kashinath @ Kashiram P. Bhoir
Age : 62 yrs. Occu. : Agriculture,
R/at - Bhoirwadi, Retibunder Road,
Dombivli West, Tal-Kalyan, Dist.-Thane. ... Appellant
vs.
1. M/s. Nandu Developers
A Proprietary firm, through its Proprietor :
Shri. Umesh J. Nandu, Happy Home,
Mahatma Phule Road, Dombivli West,
Tal.-Kalyan, Dist. - Thane.
2. Ram Jairam Bhoir
Age - 38 yrs., Occ. Agriculture,
R/at-Mothagaon, Thakurli,
Dombivli (W), Tal. Kalyan, Dist. Thane
3. Madhukar Parshuram Bhoir
Age - 52 yrs., Occ. Agriculture,
R/at-Retibunder Road, Near "H" Division
Dombivli (W), Tal. Kalyan, Dist. Thane
(Since deceased through his L.R.)
3a. Smt. Usha Madhukar Bhoir,
Age - 55 yrs. Occ. Housewife
3b. Shri. Rajesh Madhukar Bhoir
Age - 38 yrs. Occ. Business
3c. Miss. Vidya Madhukar Bhoir
Age - 34 yrs. Occ. Housewife
3d. Miss. Himali Madhukar Bhoir
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Age - 29 yrs. Occ. Housewife
All R/at-Retibunder Road, Near "H" Division
Dombivli (W), Tal. Kalyan, Dist. Thane
3e. Mrs. Jamala Giridhar Patil,
Age - 36 yrs. Occ. Housewife,
R/at. Balkum, Thane (W).
4. Kalyan-Dombivli Municipal Corporation
A Local-self Government established
As per B.P.M.C. Act.
5. The Municipal Commissioner,
Kalyan-Dombivli Municipal Corporation
ig ... Respondents
Mr. Bhushan Walimbe, Advocate for the appellant.
Mr. K. K. Jadhav, Advocate for respondent no.1.
Mr. Prashant Kamble i/by A. S. Rao, Advocate for respondent
no.5.
Coram : Smt. R. P. SondurBaldota, J.
Date : 22nd March, 2016.
JUDGMENT :
1. The order impugned in this appeal is passed by the
Ad-hoc District Judge-2, Kalyan under Order XXXXI Rule 23(A)
Civil Procedure Code ('C.P.C.' for short) remanding the suit to
the trial Court to determine issues of (i) pecuniary jurisdiction of
the trial, (ii) jurisdiction to try the subject matter of the suit and
(iii) the suit having become infructuous on occurrence of
subsequent events. The order also directs the trial Court to
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"grant opportunity to the parties to lead the evidence oral or
documentary, enhance the argument on the point of law and facts
and to re-determine the suit on merit." Considering the nature of
the impugned order the appeal is taken up for final hearing at
the stage of admission.
2. The appellant is the original plaintiff and the
respondents are original defendants no.1 to 5.
3.
The appellant, respondent no.2 and one Madhukar,
the predecessor of respondents no.3(a) to 3(e) were the joint
owners of the land at Survey No.276 Hissa No.1 (New Survey
No.83/1), admeasuring 63 ARE, having received the same in
family partition. Later there was further oral partition between
the three under which the appellant became entitled to the land
admeasuring 19 ARE, respondent no.2 became entitled to 14
ARE and Madhukar to 15 ARE. The balance portion of 15 ARE
was left common. Madhukar has constructed a building named
Ganesh Krupa in the North-West corner of the land at Survey
No.276 Hissa No.1 (hereinafter described as "the entire land").
The building consumes land of more than 2 ARE. Respondent
no.2 and Madhukar entered into agreement with respondent
no.1 for development of their portion of the land. At the same
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time the appellant executed development agreement with one
Tara Construction for development of his portion of the land.
4. The appellant alleges in the plaint that respondent
no.1 was entitled under the development agreement to develop
only land admeasuring 29 ARE which had fallen to the share of
respondent no.2 and Madhukar. In that circumstance, it was
necessary for respondent no.1 to seek subdivision of the entire
land before proceeding for development. But respondent no.1 did
not take any step towards the subdivision. Instead it submitted
construction plans for approval of respondent no.4 by showing
the area of the entire land of 63 ARE in the Area Statement
accompanying the plan. It also did not disclose existing
construction of the building of Ganesh Krupa, which covers the
land of more than 2 ARE. Respondent no.1 was further,
supposed to show the garden, road, open space and boundary
margins of the development within the area of 29 ARE. Instead it
showed the proposed garden, roads, existing structures within
the land owned by the appellant and the common portion of 15
ARE. Resultantly the total FSI for construction calculated for
respondent no.1 was on the basis of the entire 63 ARE of land
and while constructing the building respondent no.1 has
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exhausted the FSI available over the entire land. This has
seriously prejudiced the rights and interest of the appellant.
5. The appellant also alleges that the building plans
submitted by respondent no.1 and sanctioned by respondent
no.4 were not as per the Development Control Regulations for
Kalyan-Dombivli Municipal Corporation and that in the facts of
the case respondents no.4 and 5 ought not to have sanctioned
the building plans of respondent no.1 without subdivision of the
entire land and without ensuring that the same were as
prescribed by the Development Control Regulations. The
appellant, therefore, filed suit against the respondents seeking
inter alia a declaration that the plans sanctioned by respondent
no.4 for the construction by respondent no.1 be declared illegal
and to restrain respondent no.1 from erecting any construction
upon the land admeasuring 29 ARE unless the area was
subdivided. He also sought a declaration that respondents no.4
and 5 have intentionally not utilized their authority under the
Development Control Regulations against respondent no.1.
6. The suit was contested by respondent no.1 alone on
behalf of itself and as the constituted attorney of Madhukar,
defendant no.5 to the suit. The other respondents though
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appeared before the Court did not file any written statement.
They also did not participate in the trial. Thus, the specific
allegations made against these respondents remained
uncontroverted.
7. Respondent no.1 did not dispute that the
development agreement in it's favour was limited to develop the
land admesuring 29 ARE that had fallen into share of
respondent no.2 and Madhukar. It defended the suit contending
that in view of Section 149 of the Bombay Provincial Municipal
Corporation Act ("BPMC Act", for short) the appellant was not
entitled to challenge the order of sanction of plans by the
Municipal Corporation. It also contended that the appellant was
not entitled to challenge the order and the map prepared by
Taluka Inspector of Land Records (T.I.L.R.), Kalyan as there is a
separate remedy of appeal available to the appellant under the
Maharashtra Regional Town Planning Act ('MRTP Act', for short).
Therefore, the Civil Court had not jurisdiction to entertain the
suit in respect of the reliefs relating to the sanction of plans. As
regards the subdivision of the property, respondent no.1 claimed
that once the Collector granted permission for non-agricultural
use of the property, it was not under any obligation to get Pot-
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Hissa of the land made. Lastly, it was contended by respondent
no.1 that since the construction of the building was already
complete, the relief claimed by the appellant had become
infructuous.
8. The trial Court by it's exhaustive judgment and order
dated 2nd September, 2009 decreed the suit and declared that
the building construction permission granted by respondent
no.4 to respondent no.1 was in contravention of the provisions
of the Maharashtra Regional and Town Planning Act, 1966 and
hence void-ab-initio. It further declared that respondent no.1 is
not entitled to carry out development of the undivided share of
respondent no.2 and Madhukar without subdivision of the
property. It issued perpetual injunction against respondent no.1
from carrying out any construction related activity on the suit
property except of taking any corrective measures after
proceeding for subdivision of the entire land. Respondents no.4
and 5 were directed by a mandatory order to reconsider the
building permission in view of the entitlement of the share of the
appellant and in accordance with the provisions of the
Development Control Regulations for Kalyan-Dombivli Municipal
Corporation r/w the Maharashtra Regional and Town Planning
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Act, 1966 within a period of two months from the date of the
decree.
9. Being aggrieved by the judgment and decree
respondent no.1 preferred civil appeal for itself and as the
constituted attorney of respondent no.2 and respondents no.3(a)
to 3(e) since Madhukar had expired by then, being Civil Appeal
No.163 of 2009. By the impugned judgment and order the
District Court has remanded the case to the trial Court for fresh
decision in the suit.
10. Mr. Walimbe, the learned advocate for the appellant
submits that the impugned order is patently erroneous and
impermissible in law. It is his argument that though order is
purportedly under Order XXXXI Rule 23(A) C.P.C., the same
does not conform to the provision. The lower Appellate Court has
remanded the matter for deciding only the preliminary issues
without reversing the decree on other issues arising out of
merits of the case. It is also his contention that, in fact, retrial
of the case was not necessary as the evidence on record was
sufficient to decide the three preliminary issues referred to in the
impugned order. Mr. Walimbe next submits that it has been the
consistant view of the Apex Court that the power of remand
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should be sparingly used by the Courts in deserving cases. An
unwarranted order of remand gives the litigation an undeserved
lease of life and therefore must be avoided. In this connection he
relies upon decision of the Apex Court in P. Purushottam
Reddy vs. Pratap Steels Limited reported in 2002 (2) SCC
page 686.
11. The trial Court had framed 8 issues on merits of the
matter and dealt with the same, exceptionally exhaustively in it's
judgment and decree. It had also framed issues no. 8A and 8B
on the objections to the valuation of the suit and consequential
pecuniary jurisdiction of the trial Court to entertain the suit.
Issues no.9 and 10 were on the entitlement of the appellant to
the reliefs as prayed. These issues are discussed at paras 122 to
143 of the judgment and decree. In these 22 paras the trial
Court has considered the objections to the jurisdiction of the
civil Court as raised by respondent no.1 based on the provisions
of MRTP Act and BPMC Act.
12. The impugned order is seen to be a short and cryptic
order. The first four paras thereof narrate the history of the
case. Para 5 records the single point for determination drawn by
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the Lower Appellate Court i.e. whether it was necessary to
remand the matter for deciding preliminary issues. The reasons
for remand are stated at paras 6 to 11. Paras 6 and 7 of the
impugned order take note of the evidence that has come on
record during trial on valuation of the appellant's share of 19
ARE and valuation of the entire land of 63 ARE. The Lower
Appellate Court then holds :
"Irrespective of the fact plaintiff intentionally not
valued the suit properly. So there is necessity to
direct learned trial court to ascertain the valuation
of the suit property by giving opportunity to both
parties to lead evidence to that effect. After
ascertaining the valuation it is necessary to give
opportunity to plaintiff to amend his plaint
accordingly and to value the suit properly."
13. Paras 8 and 9 of the order deal with the jurisdiction of
the Civil Court in deciding the subject matter of the dispute.
Para 8 refers to the pleadings of the parties. At para 9 the Lower
Appellate Court opines that considering the reliefs claimed by
the appellant in the plaint and in view of Section 45 of MRTP Act
and Section 149 of BPMC Act, the order passed by the
concerned authority had reached finality and there was a
specific remedy available to the parties for putting up their
grievance. It is also observed that in the matters of passing of
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N.A. order, the Collector is a competent authority and
jurisdiction of Civil Court is barred. Thereafter for considering
the remand, the lower appellate court observes as follows:
"So prima facie it shows that, without framing the
issue regarding the jurisdiction of the Civil Court to
entertain the present suit, learned trial court has
decided the suit and grantd relief of declaration
that the building construction permission granted
by KDMC is in contravention of provisions of MRTP
Act, 1966. It is also declared that defendant no.2
cannot entitle to carry out the development upon
divided and in separated share unless sub-division
of the suit property is made. So I am of the opinion
that, there is necessity to frame the issue regarding
jurisdiction and to decide the same by granting
opportunity to both the parties,"
14. At para 10, the lower appellate court notes that it has
come in the cross-examination that respondent no.1 has
completed construction of the work of the disputed portion and
even allotted the flats to the purchasers. In the circumstances,
the main prayer made by the appellant and the other reliefs
claimed by him have become infructuous. Thereafter at para 11,
the directions for remand of the case under Order XXXXI, Rule
23(A) C.P.C. have been stated.
15. Before adverting to the direct decision of the Apex
Court relied upon by Mr. Walimbe, it would be convenient to
take note of the provision of Order XXXXI Rule 23(A) C.P.C. The
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same reads as follows :
"23-A. Remand in other cases - Where the Court
from whose decree an appeal is preferred has
disposed of the case otherwise than on a
preliminary point, and the decree is reversed in
appeal and a re-trial is considered necessary, the
Appellate Court shall have the same powers as it
has under rule 23.
From the plain reading of the provision it is seen that for
exercise of the power of remand thereunder there must be
satisfaction of four conditions. They are (i) the decree impugned
must be a decree passed on merits, (ii) there must be non-
consideration of some preliminary objection, (iii) the decree must
be reversed in appeal and (iv) retrial is necessary. This very
aspect has been considered by the Apex Court in the decision
cited by Mr. Walimbe.
16. In that decision the Apex Court has extensively
considered the power of the Appellate Court of remand including
the inherent powers under Section 151 C.P.C. It took note that
prior to the insertion of Rule 23-A in Order XXXXI of C.P.C. by
the C.P.C. Amendment Act, 1976, there were only two provisions
contemplating remand by Court of Appeal in Order XXXXI CPC.
The provisions were Rule 23 and Rule 25. Rule 23 applies when
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the trial Court disposes of the entire suit by recording it's finding
on a preliminary issue without deciding other issues and the
finding of the preliminary issue is reversed in appeal. Rule 25
applies when the Appellate Court notices an omission on the
part of the trial Court to frame or try any issue or to determine
any question of fact, which in the opinion of the Appellate Court
is essential for the right decision of the suit upon it's merit. This
remand is limited remand. The subordinate Court, on such
remand can try only the issues referred to it in the order of
remand for trial. Having done so, it has to return it's findings
and reasons on trial of those issues to the Appellate Court. Apart
from the above two provisions, Court could in appropriate cases
exercise inherent jurisdiction under Section 151 C.P.C. to order
a remand if it was considered preeminently necessary in order to
do justice. The situation however changed after the amendment
of C.P.C. in the year 1976 with insertion of Rule 23-A all cases of
wholesale remand got covered by Rules 23 and 23-A and
recourse to the inherent powers can be only in exceptional
cases. As regards Rule 23-A, it holds that remand thereunder
can be only on satisfaction of the conditions therein of the trial
Court disposing off the case otherwise than on a preliminary
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point and the decree is reversed in appeal and a retrial is
considered necessary.
17. In the case on hand, the trial Court did not dispose
off the suit upon a preliminary point. The suit is decided on
merit as well as on two preliminary points i.e. the preliminary
objection to the jurisdiction of the Court based on the subject
matter of the dispute and the suit having become infructuous.
The trial Court did not frame specific issues on these two
objections but has extensively dealt with the same in as many as
22 paras of the judgment and decree. It raised issues on the
objections to the valuation of the suit and the pecuniary
jurisdiction of the Court but has not dealt with the same.
18. The Lower Appellate Court finds fault with the trial
court in not framing specific issue as regards the jurisdiction of
the Court based on the subject matter of the dispute. Mr.
Walimbe however rightly points out that the only objection
raised in written statement by respondent no.1 was to the
pecuniary jurisdiction of the trial court to entertain the suit.
There was no objection raised to jurisdiction either in view of
Section 45 of the MRTP Act or Section 149 of the BPMC Act. In
the circumstances, no fault could found with the trial Court for
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not framing the issues. In any case, these contentions have
already been dealt with by the trial Court. As regards
consideration of the objections to the pecuniary jurisdiction of
the court, in view of Section 21 C.P.C. it was necessary for the
respondents to establish the consequent failure of justice
without which the objection cannot be considered.
19. In any case for the remand to be valid under Rule
23-A it was necessary for the Lower Appellate Court to consider
the case on merit and reverse the decree in appeal and then give
a finding with reasons that retrial was necessary. This exercise
is not done by the Lower Appellate Court. Further there is
nothing to indicate that for deciding any of the questions raised
by the Lower Appellate court any further evidence is required to
be led by the parties. Thus, the order impugned in the appeal
cannot be justified and sustained. Hence, the appeal from order
is allowed. The order dated 25th June, 2012 passed by the Ad-
hoc District Judge-2, Kalyan is set aside and the matter is
remanded to the Lower Appellate Court for complete
consideration of the appeal.
[Smt. R. P. SondurBaldota, J.]
