Case Note & Summary
The case involves two Civil Revision Applications challenging an order dated 23/07/2012 passed by the learned Judge of the City Civil Court, Greater Mumbai, which held that the City Civil Court has jurisdiction to try and entertain the suit. The suit was filed by the plaintiff, Deepak Anaji Dhumale, who claimed to be the nephew of the original occupant Yeshwant Dhumale, seeking a declaration that the defendant No.1 (Punam Shailendra Kambli) is a rank trespasser in respect of the suit premises (Room No.14 in Sagar Darshan Cooperative Housing Society) and for injunction. The plaintiff claimed inheritance under a registered Will dated 18/06/2008 executed by Yeshwant Dhumale. The defendants, including the society and the daughter of the original occupant, filed applications raising the issue of jurisdiction, contending that the suit was barred by Section 28 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, which bars suits for eviction of occupiers of slum areas without the permission of the Competent Authority. The trial court rejected the applications, holding that the suit was for declaration and injunction, not for eviction, and thus not barred. The High Court, in revision under Section 115 CPC, upheld the trial court's order, reasoning that the bar under Section 28 applies only to suits for eviction, and the present suit seeking declaration and injunction does not fall within that prohibition. The court also noted that the suit premises are in a slum area, but the relief sought does not require eviction. The revisions were dismissed, and the suit was directed to proceed in the City Civil Court.
Headnote
A) Civil Procedure - Jurisdiction - Revision under Section 115 CPC - The revisionary jurisdiction of the High Court under Section 115 of the Code of Civil Procedure, 1908 was invoked against an order of the City Civil Court holding that it had jurisdiction to try the suit. The High Court dismissed the revision, affirming the trial court's finding. (Paras 2, 10)
B) Slum Areas Act - Bar of Jurisdiction - Section 28 of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - The suit sought declaration that defendant was a trespasser and for injunction, not for eviction. The court held that the bar under Section 28 applies only to suits for eviction of occupiers of slum areas, not to suits for declaration and injunction. Therefore, the City Civil Court had jurisdiction. (Paras 7-9)
C) Civil Procedure - Suit for Declaration and Injunction - Maintainability - The plaintiff, claiming under a Will, sought declaration that defendant was a trespasser and injunction against creating third party interests. The court held that such a suit is maintainable in the City Civil Court as it does not fall within the prohibition of Section 28 of the Slum Areas Act. (Paras 4, 9)
Issue of Consideration
Whether the City Civil Court has jurisdiction to try and entertain the suit in the present form, in view of the bar under Section 28 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.
Final Decision
Both Civil Revision Applications are dismissed. The order dated 23/07/2012 passed by the City Civil Court is upheld. The suit to proceed in the City Civil Court.
Law Points
- Jurisdiction of City Civil Court
- Bar of jurisdiction under Maharashtra Slum Areas Act
- 1971
- Interpretation of Section 28 of the Act
- Scope of revision under Section 115 CPC
Case Details
2013 LawText (BOM) (04) 74
Civil Revision Application No.960 of 2012 and Civil Revision Application No.678 of 2012
Mr. Vishal Kanade with Mr. Jayesh R Vyas for Applicant in CRA 960/12; Mr. Madhav Jamdar with Mr. Hemant P Ghadigaonkar for Applicants in CRA 678/12 and for Respondent Nos.2 and 3 in CRA 960/12; Mr. D S Sawant i/by Mr. M H Belosey for Respondent Nos.1, 4, & 5 in CRA 960/12; Mr. Rajesh B Parab for Respondent Nos.1, 4, & 5 in CRA 678/12
Worli Adarsh Nagar Sagar Darshan Cooperative Housing Society Ltd. (in CRA 960/12); Mrs. Punam Shailendra Kambli and Anr. (in CRA 678/12)
Deepak Anaji Dhumale and ors.
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Nature of Litigation
Civil Revision Applications challenging an order on jurisdiction in a suit for declaration and injunction regarding slum premises.
Remedy Sought
The applicants (defendants) sought to set aside the trial court's order holding that the City Civil Court has jurisdiction to try the suit.
Filing Reason
The defendants contended that the suit was barred by Section 28 of the Maharashtra Slum Areas Act, 1971, which bars suits for eviction of occupiers of slum areas without permission of the Competent Authority.
Previous Decisions
The City Civil Court, by order dated 23/07/2012, held that it had jurisdiction to try the suit.
Issues
Whether the City Civil Court has jurisdiction to try the suit in view of the bar under Section 28 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.
Submissions/Arguments
The applicants argued that the suit premises are in a slum area and the suit seeks eviction of the defendant, thus barred by Section 28 of the Slum Areas Act.
The plaintiff argued that the suit is for declaration and injunction, not for eviction, and therefore not barred.
Ratio Decidendi
The bar under Section 28 of the Maharashtra Slum Areas Act applies only to suits for eviction of occupiers of slum areas. A suit seeking declaration and injunction, without a prayer for eviction, is not barred and can be tried by the City Civil Court.
Judgment Excerpts
The revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure is invoked against the order dated 23/07/2012 passed by the learned Judge of the City Civil Court, Greater Mumbai by which order the learned Judge has held that the City Civil Court would have the jurisdiction to try and entertain the suit in the present form.
The bone of contention in the suit is the inheritance of the said suit premises being Room No.14, admeasuring about 10.78 sq.mtrs. in the Applicant society being Sagar Darshan Cooperative Housing Society, Janta Colony, Worli village, Adarsh Nagar, Mumbai.
The bar under Section 28 of the Maharashtra Slum Areas Act is in respect of suits for eviction of the occupiers of the slum areas. The suit in question is not a suit for eviction but is a suit for declaration and injunction.
Procedural History
The plaintiff filed S.C. Suit No.1250 of 2012 in the City Civil Court, Greater Mumbai. The defendants filed applications raising the issue of jurisdiction, which were rejected by the trial court on 23/07/2012. The defendants then filed two Civil Revision Applications (No.960/2012 and No.678/2012) in the High Court challenging that order. The High Court heard both revisions together and dismissed them on 29/04/2013.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115
- Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971: Section 28
