Shaikh Hamid Shaikh Mohammad And Another.VERSUSSyed Yusuf Syed Pathru.Mr. S v. Natu
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 4 OF 1994WITH CIVIL APPLICATION NO. 3266 OF 2017 IN SA/4/1994Shaikh Hamid Shaikh Mohammad And Another.VERSUSSyed Yusuf Syed Pathru.Mr. S. V. Natu, Advocate for appellantsMr. P. P. Mandlik, Advocate for respondentCORAM: R. M. JOSHI, J.DATE: 15th January, 2025PER COURT :-1.This appeal under Section 100 of the Code of Civil Proceduretakes exception to the judgment and decree passed by Trial Court inRegular Civil Suit No. 364/1981 and confirmation thereof in Regular CivilAppeal No. 176/1988.2.Parties are referred to as ‘plaintiff’ and ‘defendants’ for thesake of convenience.3.In order to appreciate the submissions made by the rivalsides, it is necessary to take into consideration the facts in brief which ledto the filing of this appeal.4.Admittedly, the suit property is allotted originally to plaintiffunder the provisions of the Maharashtra Housing and Area Development903-SA-4-1994.odt1 of 8 Act, 1976 (for short “the Act”). Plaintiff was reside there and to pay rentto the Housing Board and obtain receipt towards the said payments.Plaintiff filed suit for injunction in respect of subject property bearingHouse No. 6/92 situated at Labour Colony, Nanded with the allegationthat the defendants are trying to dispossess plaintiff from the suitproperty. During the pendency of the suit, it is claimed that the plaintiff isdispossessed and hence by amendment along with pleadings to thateffect a prayer of possession of the suit property was sought.5.Defendants filed written statement and oppose thecontentions of the plaintiff. It is a case of defendants that defendant No.1 was introduced as a tenant in the suit house by Smt. Khajabee, motherof original plaintiff and that he used to pay rent. Defendant furthercontended that they are occupants of the suit house and steps are takenfor allotment of the sale to defendant No.1. It is claimed that on04.04.1985, Housing Board has allotted the suit house to defendant No.1and that he has made payment of arrears and charges as demanded bythe Board. It is further claimed that on 17.05.1985 a final allotmentletter is issued to defendant No.1 in respect of the suit house.6.Learned trial Court as well as First appellate Court decreedthe suit and directed removal of defendants from the suit house. Hence,this appeal.903-SA-4-1994.odt2 of 8 7.Learned counsel for the defendants submits that the trialCourt had no jurisdiction to entertain the suit in view of bar created bythe provisions of Section 71 of the Act. It is his submission that specificplea was raised in this regard in the written statement so also issue wasraised about non joinder of MHADA as a party to the said proceeding.According to him, once issue is raised by defendants about suit housebeing alleged to defendant No.1 and admittedly defendants are inpossession thereof. Trial Court could not have decided suit withouthearing MHADA. These issues were ignored by Trial Court as well as FirstAppellate Court. He placed reliance on the judgment of Hon’ble SupremeCourt in case of Sau Rajani Vs. Sau Smita & Anr,MANU/SC/1021/2022. He, therefore, submits that for want ofjurisdiction of Trial Court so also the ground of non joinder of necessaryparty suit deserves to be dismissed.8.Learned counsel for the plaintiff submits that there areconcurrent findings recorded by both Courts below and in absence of anyperversity being shown there, interference is not called at the hands ofthis Court. It is his contention that since during the pendency of the suit,the allotment has been effected, the principle of lis pendense wouldcertainly apply to the present case. To support the submission, he placedreliance on the judgment of Nirmala Dhondiram Kadam Vs.903-SA-4-1994.odt3 of 8 Shatrughana K. Padava & others 1984(1) Bom.C.R. 395 9.The appeal was admitted on Ground Nos. C, D, F and H ofappeal memo. In the facts of the case, following substantial questions oflaw arises in this appeali) Whether Civil Court had jurisdiction to decide thesuit ?ii) Whether suit was liable for dismissal for want ofjoining MHADA as a party to the suit ?iii)Whether the evidence occurred during thependency of the suit are effected by Section 52 ofthe Transfer of Property Act i.e., lis pendense ?iv) Whether the plaintiff was entitled for recovery ofpossession of the suit house in view of terminationof allotment of suit house to the plaintiff from1972 ?10.There is no dispute about the fact that defendants had raisedspecific issue of the jurisdiction of the Court in entertaining the suit.Admittedly, the suit house is allotted by MHADA. The provisions of theAct, therefore, would apply to this case to the case in hand. Section 66 ofthe Act empowers the Competent Authority appointed under Section 65to evict certain persons from the Authority premises. These powersinclude power to evict any person in unauthorised occupation for903-SA-4-1994.odt4 of 8
Legal Reasoning
authority premises. Section 70 provides for an appeal from the orderpassed by Competent Authority under Section 66 or Section 67 of theAct. Thus, the act is a complete in respect of eviction of any person fromany Authority premises. In the backdrop of these provisions, there isclear bar of the jurisdiction of Civil Courts under Section 71 of the Act.For the sake of ready reference, the said provision is reproduced asfollows:“71.Bar of jurisdiction of civil courts.No civil court shall have jurisdiction to entertain anysuit or proceeding in respect of the eviction of anyperson from any Authority premises under thisChapter, or the recovery of the arrears of rent,compensation, amount or damages for use andoccupation of such premises, or in respect of anyorder made or to be made or any action taken or tobe taken by the Competent Authority or theappellate officer in the exercise of any powerconferred by or under this Chapter, or to grant anyinjunction in respect of such order or action.”11.Admittedly, the suit house is Authority premises. Since suitpremises is ‘Authority Premises’ as contemplated by Section 2(4) of theAct, provisions of Section 66 for the purpose of eviction of any persontherefrom would certainly apply. In such circumstances, this Court findssubstance in the contention of learned counsel for the defendant. There isno dispute about the fact that MHADA has allotted the suit house to903-SA-4-1994.odt5 of 8 defendant No.1. The said fact was brought on record by the defendantsbefore the Trial Court. Now question arises as to whether in suchcircumstance, it was open for the learned trial Court to pass decree ofeviction of defendants from the suit house.12.The judgment relied upon by the learned counsel for theplaintiff in case of Nirmala (supra), the facts as appearing on thejudgment indicates that the suit therein was filed by the plaintiff foreviction of trespasser from the suit premises. In the said fact, it was heldthat in respect of dispute between the private persons, the same can onlybe adjudicated upon by the Civil Court and the Competent Authority doesnot come into the picture in respect of such dispute between privatepersons. As against this, in the instant case, there is allotment of the suithouse in favour of defendants and in such circumstances, it cannot besaid that unless the said allotment is set aside by the Competent Court oflaw, there would not be jurisdiction with the Civil Court to direct evictionof the defendants from the suit house. Once, the suit was not tenable inrespect of the decree of eviction, the judgment and decree passed by thetrial Court and confirm by the First Appellate Court cannot sustain.Consequently, other issues sought to be canvassed are not requiredconsideration.13.At this stage, learned counsel for the plaintiff submits that903-SA-4-1994.odt6 of 8 since this Court has held that the Civil Court has no jurisdiction to try thesuit for eviction of defendants from the suit house and since it is heldthat it is a Competent Authority which has a jurisdiction to cause evictionif any, he seeks granting liberty to the plaintiff to approach theCompetent Authority for taking appropriate action under the provisions ofthe Act including action of eviction of defendants from the suit house. Healso contents that the time lapsed in pursuing wrong forum may beexcluded while counting the period of limitation. Learned counsel for thedefendant opposed the said submission.14.Since this Court has held that the trial Court had nojurisdiction to entertain the suit for eviction of defendants from the suithouse, it is necessarily to be held that the plaintiff has adopted remedybefore wrong forum. In view of the provision Section 14 of Limitation Act,the period consumed for pursuing a remedy bonafide before wrong forumis to be excluded from computation of period of limitation.15Having regard to these facts, this Court is inclined to acceptthe contention of the learned counsel for the plaintiff. Consideringpeculiarity of the circumstances, a proceeding, if any, is initiated byplaintiff within a period of 4 weeks from today, the issue of limitationshall neither be raised nor entertained. 903-SA-4-1994.odt7 of 8 16.It is however clarified that the leave granted for initiation ofthe proceedings as per the law not to be construed as plaintiff havingmade out any case on merit. Competent Authority to decide anyproceeding if any, so filed, in accordance with law. All contentions of rivalparties are kept specifically open.17.In view of the above, the substantial question of law whetherCivil Court had jurisdiction to decide the suit is decided in negative. As aresult of which no further findings are recorded on the other issues.18.Consequently, appeal stands allowed. Regular Civil SuitNo.364/1981 stands dismissed.(R. M. JOSHI, J.)bsj903-SA-4-1994.odt8 of 8