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Nirmala Dhondiram Kadam (Smt.) Vs. Shatrughana K. Padava and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal From Order No. 562 of 1983
Judge
Reported in1984(1)BomCR395; 1984MhLJ244
ActsMaharashtra Housing and Area Development Act, 1976 - Sections 71 and 664
AppellantNirmala Dhondiram Kadam (Smt.)
RespondentShatrughana K. Padava and ors.
Appellant AdvocateA.P. Gupte and ;V.J. Joshi, Advs.;S.M. Gupte, A.G.P.
Respondent AdvocateR.S. Patil, Adv. for respondent Nos. 1 and 2
DispositionAppeal allowed
Excerpt:
.....and area development act, 1976 - whether civil court has jurisdiction to try and entertain the suit in respect of eviction of any person from any premises of maharashtra housing board - dispute is between private persons in regard to premises belonging to maharastra housing board - provision will not be attracted in a dispute between private persons or parties which can only be adjudicated upon by civil court - held, civil court has jurisdiction. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be..........nagar, vikroli, bombay belonging to maharashtra housing board (hereinafter referred to as `the suit premises'). the said premises were allotted to her as she was an industrial worker. sometime after december 1975 as her husband expired in an accident she vacated the suit premises and handed over the same to one ghanshyam s. kawade (hereinafter referred to as `defendant no. 1') for a temporary period for use and occupation. after one year she requested defendant no. 1 to vacate the suit premises and she was given assurance on that behalf. subsequently she found, in the month of august 1979, that one francis (hereinafter referred to as the `defendant no. 2') was in possession of the suit premises with his family. on enquiries he told the plaintiff that he had purchased the premises.....
Judgment:

H.H. Kantharia, J.

1. This is an appeal from order dated 1-7-1983 passed by the learned Judge of the Bombay City Civil Court dismissing the chamber summons taken out by the appellant (hereinafter referred to as 'the plaintiff') in S.C. Suit No. 5577 of 1979.

2. The facts giving rise to this appeal are that the plaintiff and the member of her family were occupying Room No. 4569, in Building No. 150 at Kannamwar Nagar, Vikroli, Bombay belonging to Maharashtra Housing Board (hereinafter referred to as `the suit premises'). The said premises were allotted to her as she was an industrial worker. Sometime after December 1975 as her husband expired in an accident she vacated the suit premises and handed over the same to one Ghanshyam S. Kawade (hereinafter referred to as `defendant No. 1') for a temporary period for use and occupation. After one year she requested defendant No. 1 to vacate the suit premises and she was given assurance on that behalf. Subsequently she found, in the month of August 1979, that one Francis (hereinafter referred to as the `defendant No. 2') was in possession of the suit premises with his family. On enquiries he told the plaintiff that he had purchased the premises from defendant No. 1 on payment of Rs. 14,000/-. Therefore, she filed a suit in the trial Court against defendant Nos. 1 and 2 for a declaration that defendant No. 2 was a trespasser in respect of the suit premises and that she be declared in lawful possession of the same. Further prayer was that defendant No. 2 be ordered to hand over vacant and peaceful possession of the said premises to her and he, his agents and/or servants be restrained by a permanent injunction and order from dealing with or disposing of or parting with the suit premises or any part thereof in any manner whatsoever and/or inducting and/or allowing any third party to use or occupy the suit premises. The said suit was decreed ex parte. Thereafter, she took out execution proceedings and found that the present respondents were in possession of the suit premises. Therefore, she took out chamber summons for directions to the Sheriff of Bombay to remove the respondents and/or any other persons found in possession of the suit premises and to put her in exclusive possession of the scheme. The chamber summons was opposed by respondents. They raised a contention that Civil Court had no jurisdiction to try and entertain the suit as the same is barred under the provisions of Maharashtra Housing and Area Development Act, 1976 (hereinafter referred in as the `Act'). The chamber summons was hotly contested. The learned trial Judge by his impugned order held that in view of the provisions of section 71 of the Act the jurisdiction of the Civil Court was barred to entertain any suit or proceedings in respect of eviction of any person from any premises of the Maharashtra Housing Board. Aggrieved by the said order the plaintiff preferred present appeal.

3. Now, Mr. Gupte, learned Counsel appearing on behalf of the appellant, urged that the jurisdiction of the Civil Court is not barred by the provisions of section 71 of the Act inasmuch as under section 66 of the Act the Competent Authority is empowered to take eviction proceedings and the suit filed by plaintiff and the subsequent proceedings were not in respect of the eviction proceedings but the same were with regard to disputes between private persons viz. the plaintiff and defendant Nos. 1 to 2 and the present respondents. Mr. Gupte invited my attention to a judgment of the Supreme Court in Chandu Naik and others v. Sitaram B. Naik and another AIR 1978 SC 433 and urged that in view of the law laid down by their Lordships of the Supreme Court the jurisdiction of the Civil Court is not ousted. Mr. Patil, learned Counsel appearing on behalf of the respondents, fairly conceded to this legal position. Mr. Gupte, learned Assistant Government Pleader also aired the same views.

4. Now, the Supreme Court in the said case was dealing with the provisions of section 8 of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation of Summary Eviction) Act, 1975 in the matter arising out of the provisions of section 145 of the Criminal Procedure Code 1973. In that case, the Magistrate had held that in view of section 8 of the said Act he did not have jurisdiction to proceed with the case under section 145 of the Criminal Procedure Code. The aggrieved party filed revision application in this Court. This Court was also of the same view as the one taken by the Magistrate and dismissed the revision application. Therefore, an appeal was filed in the Supreme Court. While disposing of the said appeal the Supreme Court held as under :---

'In our opinion the courts below have committed an error of law in applying the bar of section 8 of the present proceedings. Firstly, in the context of the Act the bar is not attracted to any suit or proceeding in respect of the eviction of any person from any vacant land started in relation to a dispute of possession between two private persons. The bar is attracted if the suit or proceeding concerns the eviction of any person from any vacant land by the competent authority. In other words, no suit or proceeding for eviction can be entertained by any Court in the competent authority is entitled to evict the person under section 4. He will be entitled to evict any person if he is in unauthorised occupation of vacant land, but not in the case of dispute between two private persons, either of them claiming to be in authorised occupation. For deciding such a dispute, the competent authority does not come into the picture.'

5. The law laid down by the Supreme Court as above squarely fits into the facts of our case. In our case the dispute is between private persons inasmuch as the plaintiff wants to oust the respondents who according to her were the trespassers on the suit premises. It was with a view to get the original defendant No. 2 declared as trespasser on the suit premises that in her private right she had filed the suit in the City Civil Court. The said suit was decreed in her favour, of course, ex parte. It was realised at the time of execution proceedings that the present respondents were the obstructionist whom she wants to throw out from the suit premises. Therefore, the dispute is between private persons only and incidentally it is with regard to the premises belonging to Maharashtra Housing Board. The Competent Authority under the Act does not come into picture at all because under Chapter VI of the Act he is not empowered to adjudicate upon disputes between private persons. Section 71 of the Act reads as under :---

'71. No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person from any Authorised premises under this Chapter, or the recovery of the arrears of rent, compensation, amount or damages for use and occupation of such premises, or in respect of any order made or to be taken by the competent authority or the appellate Officer in the exercise of any power conferred by or under this Chapter, or to grant any injunction in respect of such order of action.'

These provisions will not be attracted in a dispute between private persons or parties which can only be adjudicated upon by the Civil Court. Hence, it cannot be said that the jurisdiction of the Civil Court is ousted under section 71 of the Act. Therefore, the impugned order will have to be set aside.

6. In the result, the impugned order dated 1-7-83 passed by the learned trial Judge of the City Civil Court, Bombay in Chamber Summons No. 1197 of 1981 dated 16-12-1981 in S.C. Suit No. 5577 of 1979 is set aside. The matter is remanded back to the trial Court, with the directions that it shall proceed with the matter further and dispose it of according to law. In view of the fact that this matter has been delayed for long it is also directed that it shall be expedited. Appeal is allowed accordingly. No order as to costs.


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