Case Note & Summary
The case involves a civil revision application under Section 115 of the Code of Civil Procedure, 1908, challenging an order dated 22/3/2013 passed by the City Civil Court, Borivali Division, Dindoshi, which adjudicated a preliminary issue regarding the maintainability of the suit. The applicant, Mrs. Sarina Esmeralda Lopez, is the original Defendant No.2, while Respondent No.1, Mr. Vijay Goverdhandas Kalantri, is the original Plaintiff, and Respondent No.2 is the Municipal Corporation of Greater Mumbai (original Defendant No.1). The plaintiff purchased Flat No.2 in Wahedna Apartment, Bandra, Mumbai, under an Agreement of Sale dated 5/6/1982, and claimed exclusive possession of an adjoining open space. The Municipal Corporation issued a notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), alleging unauthorized construction and calling for restoration. The plaintiff filed a suit seeking declaration of title and injunction against the notice. The defendant (applicant) raised a preliminary issue that the suit is not maintainable because Section 149 of the MRTP Act ousts the jurisdiction of the civil court. The trial court framed the issue: 'Whether the suit is not maintainable, the jurisdiction of the Court being ousted by virtue of Section 149 of the Maharashtra Regional Town Planning Act, 1966?' and answered it in the negative, holding the suit maintainable. The applicant challenged this order in revision. The High Court upheld the trial court's decision, reasoning that Section 149 ousts jurisdiction only for matters that are within the purview of the MRTP Act, but disputes involving title and possession are not covered. The court noted that the plaintiff's claim is based on ownership and exclusive possession, not merely on planning violations, and therefore the civil court has jurisdiction. The revision application was dismissed.
Headnote
A) Civil Procedure - Preliminary Issue - Maintainability of Suit - Section 115 CPC, Section 149 MRTP Act - The court considered whether a civil suit challenging a notice under Section 53(1) of the MRTP Act is barred by Section 149 of the MRTP Act. The court held that the suit is maintainable as the dispute involves title and possession, not merely planning violations, and the civil court's jurisdiction is not ousted. (Paras 1-25)
Issue of Consideration
Whether the suit is not maintainable because the jurisdiction of the civil court is ousted by virtue of Section 149 of the Maharashtra Regional Town Planning Act, 1966.
Final Decision
The High Court dismissed the civil revision application, upholding the trial court's order that the suit is maintainable.
Law Points
- Jurisdiction of civil court
- ouster of jurisdiction
- Section 149 MRTP Act
- maintainability of suit
- preliminary issue
- Section 115 CPC
Case Details
2015 LawText (BOM) (01) 47
Civil Revision Application No.448 of 2013
Mrs. Sarina Esmeralda Lopez (Applicant in person), Mr. D D Madon, Senior Advocate with Mr. Cyrus Ardeshir i/by M/s. Naik Naik & Co. for Respondent No.1, Mr. Joquim Reis, Senior Advocate with Mrs. M R Bhoir for Respondent No.2
Mrs. Sarina Esmeralda Lopez
Mr. Vijay Goverdhandas Kalantri, Municipal Corporation of Greater Mumbai
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Nature of Litigation
Civil revision application challenging an order on preliminary issue regarding maintainability of suit.
Remedy Sought
The applicant (original Defendant No.2) sought to set aside the trial court's order that the suit is maintainable despite Section 149 of the MRTP Act.
Filing Reason
The applicant contended that the civil court's jurisdiction is ousted by Section 149 of the MRTP Act because the suit relates to unauthorized construction under the MRTP Act.
Previous Decisions
The trial court framed a preliminary issue and held that the suit is maintainable, rejecting the applicant's objection.
Issues
Whether the suit is not maintainable because the jurisdiction of the civil court is ousted by virtue of Section 149 of the Maharashtra Regional Town Planning Act, 1966?
Submissions/Arguments
The applicant argued that the suit is barred by Section 149 of the MRTP Act as it relates to unauthorized construction.
The respondent (plaintiff) argued that the suit involves title and possession, which are outside the scope of the MRTP Act, and therefore the civil court has jurisdiction.
Ratio Decidendi
Section 149 of the MRTP Act ousts the jurisdiction of the civil court only for matters that are within the purview of the MRTP Act. Disputes involving title and possession of property are not covered by the MRTP Act, and therefore the civil court retains jurisdiction to entertain such suits.
Judgment Excerpts
Whether the suit is not maintainable, the jurisdiction of the Court being ousted by virtue of Section 149 of the Maharashtra Regional Town Planning Act, 1966?
The revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure is invoked against the order dated 22/3/2013 passed by the learned Judge of the City Civil Court, (Borivali Division), Dindoshi thereby adjudicating upon the preliminary issue...
Procedural History
The plaintiff filed a suit in the City Civil Court, Borivali Division, Dindoshi. The defendant raised a preliminary issue regarding maintainability. The trial court framed the issue and decided it in favor of the plaintiff on 22/3/2013. The defendant filed a civil revision application under Section 115 CPC in the Bombay High Court, which was dismissed on 16/1/2015.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115
- Maharashtra Regional and Town Planning Act, 1966: Section 53(1), Section 149
