IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.3580 OF 2006 OF MOTION NO.3580 OF 2006 OF MOTION NO.3580 OF 2006 IN IN IN SUIT SUIT SUIT NO. 6789 OF 1999 NO. 6789 OF 1999 NO. 6789 OF 1999 SMT. SMT. SMT. MAY G. RANI KOYA ... MAY G. RANI KOYA ... MAY G. RANI KOYA ... PLAINTIFF. PLAINTIFF. PLAINTIFF. VS. VS. VS. SHRI SHRI SHRI JAYRAM S. SHETTY ... JAYRAM S. SHETTY ... JAYRAM S. SHETTY ... DEFENDANT. DEFENDANT. DEFENDANT. MS. MS. MS. GEETA SHASTRI I/B. S.P.SRIVASTAVA FOR THE GEETA SHASTRI I/B. S.P.SRIVASTAVA FOR THE GEETA SHASTRI I/B. S.P.SRIVASTAVA FOR THE PLAINTIFF. PLAINTIFF. PLAINTIFF. MR. MR. MR. M.D.ANGAL I/B. PRAKASH MAHADIK FOR THE M.D.ANGAL I/B. PRAKASH MAHADIK FOR THE M.D.ANGAL I/B. PRAKASH MAHADIK FOR THE DEFENDANT. DEFENDANT. DEFENDANT. Coram Coram Coram : S.K.Shah, J. : S.K.Shah, J. : S.K.Shah, J. Date Date Date : March 6, 2007. : March 6, 2007. : March 6, 2007. P.C.:- P.C.:- P.C.:- 1. 1. 1. Heard Heard Heard the learned Counsel on both sides. the learned Counsel on both sides. the learned Counsel on both sides. 2. 2. 2. This This This is defendants motion seeking rejection of is defendants motion seeking rejection of is defendants motion seeking rejection of the the the plaint under Order VII Rule 11 of the Code of Civil plaint under Order VII Rule 11 of the Code of Civil plaint under Order VII Rule 11 of the Code of Civil Procedure. Procedure. Procedure. 3. 3. 3. It is the contention of the applicant- Respondent It is the contention of the applicant- Respondent It is the contention of the applicant- Respondent in in in this motion that the suit premises falls within the this motion that the suit premises falls within the this motion that the suit premises falls within the area area area declared as Slums area by the Government under the declared as Slums area by the Government under the declared as Slums area by the Government under the notification notification notification issued under the Slum Area (Improvement , issued under the Slum Area (Improvement , issued under the Slum Area (Improvement , Clearance Clearance Clearance and Re-development) Act, 1971 (for Short and Re-development) Act, 1971 (for Short and Re-development) Act, 1971 (for Short "Slums "Slums "Slums Act" and for filing the Suit, permission from Act" and for filing the Suit, permission from Act" and for filing the Suit, permission from the the the Competent Authority was Competent Authority was Competent Authority was necessary. 4. 4. 4. It It It is well settled that for considering the is well settled that for considering the is well settled that for considering the rejection rejection rejection of the plaint under these provisions of the of the plaint under these provisions of the of the plaint under these provisions of the Code Code Code of Civil Procedure, it is necessary to consider of Civil Procedure, it is necessary to consider of Civil Procedure, it is necessary to consider only only only the averments made in the plaint and not any the averments made in the plaint and not any the averments made in the plaint and not any extraneous extraneous extraneous documents/ material. documents/ material. documents/ material. 5. 5. 5. It It It is vehemently submitted on behalf of the is vehemently submitted on behalf of the is vehemently submitted on behalf of the applicant/ applicant/ applicant/ defendant that in paragraph 27 of the defendant that in paragraph 27 of the defendant that in paragraph 27 of the plaint, plaint, plaint, it has been averred that the Photo-pass and the it has been averred that the Photo-pass and the it has been averred that the Photo-pass and the rent rent rent receipts have been issued in favour of the receipts have been issued in favour of the receipts have been issued in favour of the Plaintiff Plaintiff Plaintiff by the Bombay Municipal Corporation. It is by the Bombay Municipal Corporation. It is by the Bombay Municipal Corporation. It is submitted submitted submitted that these are rent receipts and the that these are rent receipts and the that these are rent receipts and the photo-pass photo-pass photo-pass which by themselves would indicate that the which by themselves would indicate that the which by themselves would indicate that the suit suit suit property situate in Slum area and is covered by property situate in Slum area and is covered by property situate in Slum area and is covered by the the the provisions of the aforesaid Slums Act and, provisions of the aforesaid Slums Act and, provisions of the aforesaid Slums Act and, therefore, therefore, therefore, it would attract the provisions of Section it would attract the provisions of Section it would attract the provisions of Section 22 22 22 of the Slums Act as regards the permission of the of the Slums Act as regards the permission of the of the Slums Act as regards the permission of the Competent Competent Competent Authority for institution of the Suit and Authority for institution of the Suit and Authority for institution of the Suit and that that that the same is barred for want of the the permission the same is barred for want of the the permission the same is barred for want of the the permission from from from the Competent Authority and that there is no such the Competent Authority and that there is no such the Competent Authority and that there is no such permission permission permission obtained from the Competent Authority to obtained from the Competent Authority to obtained from the Competent Authority to institute institute institute this Suit. this Suit. this Suit. 6. 6. 6. As As As against this it has been submitted on behalf against this it has been submitted on behalf against this it has been submitted on behalf of of of the Respondent- Plaintiff that only the averments the Respondent- Plaintiff that only the averments the Respondent- Plaintiff that only the averments made made made in the plaint are required to be considered to in the plaint are required to be considered to in the plaint are required to be considered to find find find out whether the provisions of Section 22 of the out whether the provisions of Section 22 of the out whether the provisions of Section 22 of the said said said Act would be attracted and whether the Suit is Act would be attracted and whether the Suit is Act would be attracted and whether the Suit is barred barred barred under Order VII Rule 11 of the CPC. under Order VII Rule 11 of the CPC. under Order VII Rule 11 of the CPC. 7. 7. 7. The The The learned Counsel for the Plaintiff submits learned Counsel for the Plaintiff submits learned Counsel for the Plaintiff submits that that that there is no such averments in the plaint that the there is no such averments in the plaint that the there is no such averments in the plaint that the suit suit suit property is situated within slum area declared by property is situated within slum area declared by property is situated within slum area declared by the the the Government under any notification. She also Government under any notification. She also Government under any notification. She also further further further submits that mere showing Photo-pass and rent submits that mere showing Photo-pass and rent submits that mere showing Photo-pass and rent receipts receipts receipts woud not be sufficient to attract the woud not be sufficient to attract the woud not be sufficient to attract the provisions provisions provisions under Section 22 of the Slums Act in order under Section 22 of the Slums Act in order under Section 22 of the Slums Act in order to to to bar the Suit. She further submits that in first bar the Suit. She further submits that in first bar the Suit. She further submits that in first paragraph paragraph paragraph of the plaint itself, it has been mentioned of the plaint itself, it has been mentioned of the plaint itself, it has been mentioned that that that the Plaintiff is a tenant of BMC. It is also the Plaintiff is a tenant of BMC. It is also the Plaintiff is a tenant of BMC. It is also pointed pointed pointed out that in para 27 of the plaint there is out that in para 27 of the plaint there is out that in para 27 of the plaint there is averment averment averment that the plaintiff is getting rent receipts that the plaintiff is getting rent receipts that the plaintiff is getting rent receipts from from from the BMC, in order to substantiate her contention the BMC, in order to substantiate her contention the BMC, in order to substantiate her contention that that that the plaintiff is the tenant, therefore, the suit the plaintiff is the tenant, therefore, the suit the plaintiff is the tenant, therefore, the suit cannot cannot cannot be said to be barred for want of permission from be said to be barred for want of permission from be said to be barred for want of permission from the the the Competent Authority. Competent Authority. Competent Authority. 8. 8. 8. Mere Mere Mere showing the photo-pass would not be showing the photo-pass would not be showing the photo-pass would not be sufficient, sufficient, sufficient, at this stage to grant the relief sought in at this stage to grant the relief sought in at this stage to grant the relief sought in this this this motion, as the Plaintiff is claiming in the Suit motion, as the Plaintiff is claiming in the Suit motion, as the Plaintiff is claiming in the Suit that that that he is tenant of BMC. This being the position, the he is tenant of BMC. This being the position, the he is tenant of BMC. This being the position, the Suit Suit Suit cannot be said to be governed by the provisions of cannot be said to be governed by the provisions of cannot be said to be governed by the provisions of the the the aforesaid Slums Act. aforesaid Slums Act. aforesaid Slums Act. 9. 9. 9. The The The learned Counsel for the defendant, however, learned Counsel for the defendant, however, learned Counsel for the defendant, however, pointed pointed pointed out certain photo-pass issued in the name of out certain photo-pass issued in the name of out certain photo-pass issued in the name of the the the defendant, in order to substantiate his submissions defendant, in order to substantiate his submissions defendant, in order to substantiate his submissions that that that the provisions of Section 22 of the Slums Act the provisions of Section 22 of the Slums Act the provisions of Section 22 of the Slums Act would would would be attracted. However, that aspect cannot be be attracted. However, that aspect cannot be be attracted. However, that aspect cannot be considered considered considered at this stage. Provisions under Order VII at this stage. Provisions under Order VII at this stage. Provisions under Order VII Rule Rule Rule 11 can be considered on the basis of averments 11 can be considered on the basis of averments 11 can be considered on the basis of averments made made made in the plaint and not on the basis of any in the plaint and not on the basis of any in the plaint and not on the basis of any extraneous extraneous extraneous material. As regards the photo-pass material. As regards the photo-pass material. As regards the photo-pass produced produced produced by the applicant -defendant, it would be an by the applicant -defendant, it would be an by the applicant -defendant, it would be an extraneous extraneous extraneous material and, therefore, cannot be material and, therefore, cannot be material and, therefore, cannot be considered considered considered at this stage. Similarly, the learned at this stage. Similarly, the learned at this stage. Similarly, the learned counsel counsel counsel for the applicant -defendant produced certain for the applicant -defendant produced certain for the applicant -defendant produced certain list list list of the names of the persons, in order to of the names of the persons, in order to of the names of the persons, in order to substantiate substantiate substantiate that the suit properly falls in the slum that the suit properly falls in the slum that the suit properly falls in the slum area. area. area. However, this also cannot be given consideration However, this also cannot be given consideration However, this also cannot be given consideration as as as it is extraneous material. it is extraneous material. it is extraneous material. Thus, Thus, Thus, it is the it is the it is the averments averments averments made in the plaint that the plaintiff claims made in the plaint that the plaintiff claims made in the plaint that the plaintiff claims to to to be the tenant of the BMC and also claims that the be the tenant of the BMC and also claims that the be the tenant of the BMC and also claims that the BMC BMC BMC issues rent receipts are to be considered. There issues rent receipts are to be considered. There issues rent receipts are to be considered. There is is is also no averment in the plaint that the suit also no averment in the plaint that the suit also no averment in the plaint that the suit property property property is forming a part of the slum area, declared is forming a part of the slum area, declared is forming a part of the slum area, declared by by by the Government under any Notification. the Government under any Notification. the Government under any Notification. 10. 10. 10. Under Under Under the circumstances, the provisions under the circumstances, the provisions under the circumstances, the provisions under Section Section Section 22 cannot be said to have been attracted so as 22 cannot be said to have been attracted so as 22 cannot be said to have been attracted so as to to to bar the suit for want of permission from the bar the suit for want of permission from the bar the suit for want of permission from the Competent Competent Competent Authority to file the Suit. Consequently, Authority to file the Suit. Consequently, Authority to file the Suit. Consequently, the the the motion is dismissed. motion is dismissed. motion is dismissed. .... .... .... [S.K.Shah [S.K.Shah [S.K.Shah , J.] , J.] , J.]