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2015 Supreme(Bom) 841
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ROSHAN DALVI, J.
Narayan Vinayak Desai & Others – Appellant
Versus
Wallace Flour Mills Co. Ltd & Others – Respondents
Suit No. 2379 of 1992
Decided on : 11-06-2015
For the Plaintiffs:Dipti Panda, i/b. Thakore Jariwala & Associates, Advocates.
For the Defendants:D3, Alpana Ghone, a/w. Mirasee, i/b. Shah, Sanghavi, Advocates.
The main legal point established in the judgment is the determination of the maintainability of the suit between an owner and a trespasser, and the interpretation of the reliefs claimed by the plaintiff in seeking recovery of possession.
Headnote:
inherent jurisdiction - landlord and tenant - Maharashtra Ownership Flats Act, 1963 - [Issue of inherent jurisdiction of the Court, suit maintainability, reliefs claimed, possession sought, tenant or trespasser, jurisdiction not barred] - The court discussed the issue of inherent jurisdiction and the maintainability of the suit between the landlord and tenant/trespasser. The court found that the suit was between an owner and a trespasser, and the Civil Court's jurisdiction was not barred. The reliefs claimed by the plaintiff were not those of a landlord seeking possession from a tenant, but rather seeking recovery of possession from a trespasser. The court held that the suit was maintainable in the Court, and the suit shall proceed.
Fact of the Case:
The suit involved a dispute between a co-operative society and a person claiming tenancy rights in a property. The society sought various reliefs including specific performance, declaration of nullity of the alleged tenancy agreement, recovery of possession, mesne profits, and injunction against the person claiming tenancy rights.
Finding of the Court:
The court found that the suit was maintainable in the Court as it was between an owner and a trespasser, and the Civil Court's jurisdiction was not barred. The reliefs claimed by the plaintiff were not those of a landlord seeking possession from a tenant, but rather seeking recovery of possession from a trespasser.
Issues: The issues framed in the suit were related to the validity of the tenancy agreement, its binding nature on the plaintiff, and the relief entitled to the plaintiff.
Ratio Decidendi: The court's decision was based on the interpretation of the reliefs claimed by the plaintiff, the nature of the dispute between the parties, and the jurisdiction of the Civil Court in determining the maintainability of the suit.
Final Decision: The court held that the suit was maintainable in the Court, and the suit shall proceed. The issues related to the validity of the tenancy agreement, its binding nature on the plaintiff, and the relief entitled to the plaintiff were to be considered in the subsequent proceedings.
P.C. :
1. The preliminary issue of inherent jurisdiction of the Court is raised. The issue has been framed thus:
Whether the present suit is maintainable in this Court as it is between landlord and tenant / trespasser.
2. The inherent jurisdiction of the Court is, therefore, to be determined. Plaintiff No.3 and defendant No.3 have led oral as well as documentary evidence.
3. The issue of the inherent jurisdiction of the Court has to be decided upon the averments in the plaint. The oral evidence, if any, would, therefore, only be required to be explanatory. It would be led to explain the averments made by the plaintiff or to confront the plaintiff with those averments for explaining the true nature of the averments in the plaint.
4. The initial suit was filed by two flat purchasers against the owner of the plot of land, the developer of the suit property and another person who is stated to be the trespasser and who claims to be a tenant. Upon the registration of the society it was added as plaintiff No.3. Thereafter the suit is stated to have been settled between the flat purchasers and the society on the one hand and the owner of the property and the developer on the other. The suit, therefore, remains only by and between the society and the said tenant / trespasser. Consequently the above issue shows that the suit is between landlord and tenant / trespasser.
5. The averments with regard to defendant No.3 (the tenant / trespasser) are thus:
(1) In paragraph 1 of the plaint it is averred that the defendant No.3 claims tenancy rights in respect of a structure of the area of 835 Sq.ft. under an alleged agreement dated 17th January, 1989 entered into by and between defendant No.1 and defendant No.3.
(2) In paragraph Nos.7 to 10 of the plaint certain correspondence between the association of flat purchasers prior to the plaintiff No.3 society being registered and defendant No.3 is set out relating to certain rights claimed by defendant No.3 and the replies given by the said association.
(3) In paragraph Nos.10 and 11 of the plaint it is averred that alleged tenancy agreement was forwarded by defendant No.3 to the secretary of the society. The said alleged tenancy agreement is interpreted. It is further averred that in any event the alleged tenancy agreement would be subject to the agreement of sale between the developer and the flat purchasers who are the members of the said association.
(4) Further in paragraph 11 of the plaint it is averred that the said alleged tenancy agreement is sham and bogus and not in conformity with the terms of the sale between the developer and flat purchasers. It is also averred that the said agreement is anti-dated and got up to defeat the plaintiff's rights. It is also averred that the defendant No.3 is deemed to have knowledge of the agreements entered into by developer with the flat purchasers and is bound by them and that the said agreement is illegal, invalid, void and not binding upon plaintiff.
(5) In paragraph 20 of the plaint it is averred that the defendant No.3 had knowledge of the agreements entered into by the flat purchasers with the developer and was bound by them.
(6) Consequently in paragraph 21 of the plaint an injunction against defendant No.3 is sought.
The averments in the plaint do not show that the suit is for recovery of possession from a tenant.
6. The plaintiff has claimed various reliefs against defendant No.3 aside from the main relief of specific performance against the owner and the developer under the proviso of Maharashtra Ownership Flats Act, 1963 (MOFA). The reliefs are claimed thus:
1. In prayer (b) of the plaint the plaintiff has sought perfection of its title in respect of the flats purchased by the flat purchasers and other tenants in the said building so as to effectively perform the agreements of sale by the developer with the flat purchasers and so as to pass the proper title in plaintiff No.3 as a co-operative society of the flat purchasers.
2. In prayer (f) of th
