JUDGMENT - A.V. SAVANT, J.:---This appeal seeks to challenge the order dated 19th March 1979 passed by the City Civil Court in Notice of Motion No. 4996 of 1978 taken out by the plaintiffs in their

Suit No. 6861 of 1978. The suit has been filed on the 26th December 1978 by 17 plaintiffs, who are the Flat Owners in a building called 'Aashiana' situate at 22. Club Road (Maratha Mandir Road), Bombay 400 008. The said 17 plaintiffs are respondents Nos. 1 to 17 in this appeal. The appellant in this appeal viz. M/s. Khatri Builders is defendant No. 1 in the said suit. Defendants Nos. 2, 3 and 4 are the other Fat owners, who are respondents Nos. 18. 19 and 20 in this appeal. The suit has been filed for the relief of injunction restraining the first defendant promoter from constructing any additional structure or construction on the terrace of the building 'Aashiana'.

2. It appears that in 1976 the plaintiffs entered into the usual agreement for purchase of flats in the building to be constructed by 'the appellant who is the 'promoter' within the meaning of the provisions of section 2 (c) of the Maharashtra Ownership Fats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short, the Ownership flats Ltd). The building was to consist of ground floor stilts and five floors with four flats each, resulting in a total of 20 flats. In accordance with the Agreements entered into in 1976 the construction of the building with ground plus 5 floors was completed around May 1978. There is no dispute that the possession of the Fats was handed over to the plaintiffs and the other flat owners around June, 1978. In the meanwhile, the appellant promoter acquired an additional piece of adjoining land, referred to in the plaint as 'house gully' which was about 5 feet wide and as result of the acquisition of the said house gully, the appellant became entitled to an additional F.S.I. of 500 sq. ft. The appellant, therefore, proposed to put up a terrace flat of about 500 sq.ft. and submitted plans for construction of the said terrace flat. The Planning Authority approved the said plans on September 20, 1978. The appellant, therefore, made preparations for constructing the terrace flat, as a result of which the present suit was filed on the 26th December 1978.

3. By the Notice of Motion the plaintiffs prayed for ad-interim reliefs restraining the appellant from constructing any additional structure or putting construction of any nature whatsoever on the terrace of the said building 'Aashiana'. The learned trial Judge, who heard the motion took the view that-

(a) the Civil Court had the necessary jurisdiction to entertain the suit and that such a dispute did not lie within the exclusive jurisdiction of the Housing Commissioner, as provided in sub-section (2) of section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale. Management and Transfer) Act, 1963; and

(b) the plaintiffs were entitled to an injunction restraining the appellant from putting up any structure or carrying out any construction on the terrace of the said building.

It is this order dated 19th March 1979, which is challenged in this appeal.

4. I have heard Shri Abhyankar for the appellant promoter and Shri Sawant for the respondents plaintiffs. Shri Abhyankar for the appellant has made the following submissions:---

(i) In view of the judgment of the Division Bench of this Court in A.O. No. 159/80 and C.R.A. No. 628/80 decided on 2nd September 1983 and reported in (Ishwar Chinga Shetty v. Jivanji Bhulabhai Patel)1, 1987(2), Bombay Cases Reporter, page 371, such a suit cannot lie in the Civil Court in as much as the Housing, Commissioner has got the exclusive jurisdiction to entertain such a suit;

(ii) The ouster of jurisdiction contemplated by sub-section (2) of section 7 would operate even during the construction of the building as also after the construction irrespective of the fact as to whether possession h

Click Here to Read the rest of this document