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2013 Supreme(Bom) 810
High Court of Judicature at Bombay
B.R. GAVAI, J.
Ashok B. Nigudkar
Versus
Mr. Sudhadra P Nirgudkar & Others
Appeal From Order No. 137 of 2012
Decided On : 09-04-2013
For the Appellant:Y.E. Mooman i/b Ms. M.B. Gawde, Advocates.
For the Respondent:R1, Yuvraj Patil, R2, Vishal Kanade a/w Asha Nair i/b Divya Shah Associates, Advocates.
Headnote:Maharashtra Slum Areas (Improvement Clearance and Re- development) Act, 1971 - Sections 2(c-b), 35 and 42 - CPC, 1908, Section 9 - Applicability of Bar of jurisdiction under.
Jurisdiction of Civil Court is not barred to entertain matter involving issue as to who is eligible slum dweller. - The perusal of the plaint would also reveal that the entire tenor of the case of the plaintiff is that after the death of Anandibai, it is the plaintiff and defendant No. 1, who were jointly entitled to the benefits of the hutment which was occupied by their mother. It can thus be seen that the basic prayer of the plaintiff is for a declaration that he along with the defendant No. 1 is entitled to the rights flowing from the said hutment. By now, it is the settled position of law that the averments in the plaint cannot be read in isolation and for finding out what is the main relief claimed in the plaint, the plaint has to be read as a whole.
The perusal of the plaint would reveal that the basic claim of the plaintiff is on the basis of being the legal heir of Anandibai who was the original occupant of the suit hut.
As such, it would be clear that the main claim in the plaint is against the defendant No. 1, contending that the plaintiff and the defendant No. 1 are entitled to the joint use of the rights flowing from the said hut being legal heirs of the deceased Anandibai.
Perusal of the provisions of the said Act referred to hereinabove would reveal that by no stretch of imagination a dispute of nature which is sought to be raised in the plaint can be gone into by the competent authority, Appellate Court or Grievance Redressal Committee.
In any case, the issue as to rights flowing to the plaintiff and defendant as legal heirs of Anandibai could be within the exclusive jurisdiction of the Civil Court and not any other forum.
It can thus be clearly seen that the Apex Court in clear terms has held that a litigant having a grievance of a civil nature has a right to institute a civil suit in a competent Civil Court unless its cognizance is either expressly or impliedly barred by any statute. It has been further held that there is a presumption that a Civil Court will have jurisdiction and the ouster of Civil Court’s jurisdiction is not to be readily interred. It has been further held that a person taking a plea contra must establish the same.
In the present case, as has been discussed herein-above, the dispute inter se between the two claimants claiming to be legal heirs of deceased Anandibai, by no stretch of imagination, falls within the scope of powers of the competent authority or the Appellate Authority or Grievance Redressal Committee, which falls under Sections 35 and 42 of the said Act.
1. The Appeal takes exception to the order passed by the learned City Civil Court, Mumbai dated 14th November, 2011 thereby holding that the Court had no jurisdiction to entertain and try the suit filed by the present Appellant.
2. The facts in brief giving rise to the present Appeal are as under:-
One Anandibai, who is the mother of the Plaintiff and the mother-in-law of the Defendant No.1 was holding patch-holder card in respect of the premises at Room No.117-1/2, Gopal Nagar-1, Pandurang Budhkar Marg, Worli, Mumbai. It is the contention of the Plaintiff that the premises consists of ground floor and loft. According to the Plaintiff, Anandibai had four sons, out of whom, Ramesh expired during the life time of Anandibai. Another son namely Sakharam started residing separately during the life time of Anandibai. It is the case of the Plaintiff that Anandibai, the appellant's family and another brother Prakash and his family were staying in the suit premises. It is further the contention of the Plaintiff that during the life time of Anandibai, she has given ground floor on leave and license basis and the entire family of Anandibai along with Plaintiff and late Prakash started living on the loft of the premises. However, it is submitted that subsequently after the premises became vacant, the deceased Prakash and his family occupied ground floor premises and the Plaintiff continued to reside on the loft of the premises.
3. It is the contention of the Plaintiff that on 9th April, 1987, Anandibai expired & after her death the deceased Prakash & his family continued to reside on ground floor & Plaintiff and his family occupied first floor. On 29th July, 1999 Prakash died and thereafter the family of Prakash as well as Anandibai were residing as members of one family. It is the contention of the Plaintiff that in a slum development scheme, Defendant No.1, without consent of the Appellant entered into Tripartite Agreement and also took rent for temporary alternative accommodation. In this premise, the Appellant has also filed a suit for declaration that he was entitled jointly along with the Defendant No.1 to the old premises i.e. Room No.117-1/2 & for a further declaration that he was also jointly entitled to permanent joint accommodation to be reallotted in lieu of old premises and other reliefs.
4. It appears that an objection was raised regarding jurisdiction in view of the provisions of Section 42 of the Maharashtra Slum Areas (Improvement, clearance and redevelopment) Act, 1971 (hereinafter referred to as the said Act.) The said objection was upheld by the learned Trial Judge and he returned the plaint for presentation before proper forum under Order VII Rule 10 of the Code of Civil Procedure, 1908. Being aggrieved thereby, the present Appeal.
5. Shri Mooman, the learned counsel appearing on behalf of the Appellant submitted that the learned Judge has grossly erred in returning the plaint. The learned counsel submits that the dispute between the Plaintiff and the Defendant No.1 interse could not be a dispute which is covered under Section 42 of the said Act. It is, therefore, submitted that the learned Trial Judge has grossly erred in returning the plaint.
6. Shri Patil, the learned counsel for the Respondent No.1 and Shri Kanade, the learned counsel for the Respondent No.2, on the contrary, submits that the learned Trial Judge has rightly passed the order returning the plaint. It is submitted that on harmonious construction of clause(c-b) of Section 2, Section 35 and Section 42 of the said Act, jurisdiction of the Civil Court is ousted. The learned counsel submits that the question regarding as to “who is eligible slum dweller” falls exclusively within the jurisdiction of the Competent Authority or the Appellate Authority, and as such no error could be found with the order passed by the learned Trial Judge. It is further submitted that the suit is the novel way of trying to get something which is already rejecte
