1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.71 OF 2009 IN SUIT NO.492 OF 2007 PANORAMA PREMISES CO-OPERATIVE SOCIETY LTD. ..PLAINTIFF VS. TARA MOOLSINH KARSONDAS & ORS ..DEFENDANTS Mr. Shailesh Shah with Mr. P.N.Ganwani i/b Akshar Laws for the Plaintiff Mr. C.D.Patel for Defendant No.1A to 1B Mr. Snehal Shah with Mr. Brijesh Upadhay i/b Purnanand & co. for Defendant No.2 CORAM: SMT ROSHAN DALVI, J. DATED: 12 th March, 2009 P.C.: 1. The Defendant claims that this court does not have inherent jurisdiction to try the suit. The Defendant also claims the suit is barred under Order 2 Rule 2 of the CPC. This Notice of Motion is taken out for rejection of Plaint under order 7 2 Rule 11 of CPC and for direction under Order 7 Rule 10 of the CPC. 2. Mr. Shah on behalf of the Defendant stated that essentially this Application is in the nature of the application u/s 9A of the CPC. Hence he required preliminary issue relating to inherent jurisdiction of the court to be framed and decided. The preliminary issue is framed as follows:- 1) Whether this Court has inherent jurisdiction to try this suit. It is answered as follows:- Yes REASONS :- 3. The suit is filed by the Plaintiff as the lessor against the Defendant No.1 and 2 including the heirs and legal representatives of the deceased Defendant No.1 as the lessee, Defendant No.3 who is the developer of the suit property and Defendant No.4 which is the Mumbai Municipal Corporation (MMC). 4. The Plaintiff has relied upon the Lease Deed dated 26.02.1979 between the Plaintiff and Defendants No.1 & 2. The Plaintiff has specially relied upon clause 4(c) of the Lease Deed which relates to construction of additional floors under 3 sanctioned plan by utilising the FSI of the suit property by the lessee. At the time of execution of lease deed the concept of the transfer of development rights (TDR) was not in existence and hence that aspect does not form part of the Lease Deed. It is the Plaintiff's case that without their consent as the owner of the suit property the lessee in collusion with the developers sought to develop the suit property by utilising not only the additional FSI but also the TDR on the suit property. They got certain plans sanctioned from the MMC. The Plans came to be sanctioned without the consent of the Plaintiff as the owners of the suit property. The Plaintiff contends that the Defendant cannot utilise the FSI and/or TDR on the suit property by demolition of the bungalow on the suit property and construction of the new structure. 5. The Plaintiff also contends that it alone has the right to develop and construct on the suit property as the owner and that includes construction by consuming FSI / TDR and appropriation of such rights of construction on the suit property by the Defendant would tantamount to tresspass in law. 6. The reliefs that the Plaintiff has claimed is for declaration that it is the owner of the suit property and is alone entitled 4 to the TDR rights for development and construction thereof. The Plaintiff has also claimed the declaration that the lessees have no right to develop or construct upon the suit property by consuming FSI or TDR. The Plaintiff has further sought the declaration that the plans which have been sanctioned by MMC are illegal and have sought to have them cancelled. The ancillary relief prayed for by them is the relief of injunction against such construction under the sanctioned plans. 7. The Defendants contend that the suit is between the landlord and the tenant as it is filed essentially upon the Lease Deed between the lessors and the lessee and because the Plaintiff has sought to interpret clause 4(c) of the Lease Deed for granting of the reliefs prayed for by it, that this court's inherent jurisdiction is barred. 8. U/s 33 of the Maharashtra Rent Control Act, 1999 only the suit relating to recovery of rent and possession of the premises is the suit in which the Civil Court inherent jurisdiction is barred. This suit is not for recovery of rents. It is also not for recovery of possession. It is also not for any order relating to recovery of rent or possession. 9. Mr Shah argued that grant of declarations would 5 tantamount to granting the Plaintiff possession and hence the suit would be for recovery of possession. That argument is misconceived. The declarations which are sought in respect of the TDR rights under prayer (a) & (b) are not under the Lease Deed. The declaration against the MMC with regard to the illegality or otherwise of the plan is not also under the Lease Deed. These reliefs cannot be granted by the court of Small Causes at Bombay. The relief of injunction is an ancillary relief. 10. Hence this court's inherent jurisdiction is not barred. Issue framed above is answered in affirmative. 11. It is contended that upon the same cause of action an earlier suit has been filed in the court of Small Causes at Bombay being R.A.E. Suit No.576 of 2005. This suit is filed later for further relief. Without applying for leave under order 2 rule 2 of CPC in that suit and hence this suit is barred and consequently the plaint must be rejected under order 7 rule 11 of the CPC. 12. R.A.E. Suit No.576 of 2005 is against the lessee as well as the developer. It is essentially filed upon the breaches stated to have been committed by the lessee under the Lease Deed. The suit also refers to the Agreement of sale or transfer or 6 assignment entered into by the lessee with the developer. The Plaintiff has averred that the lessee as well as the developer cannot load TDR over the suit property or take benefit of the FSI. It has submitted that lessee and the developer have no right to demolish the suit structure or reconstruct in the suit property by demolishing the bungalow and developing the suit property. It has also averred about the submission of plans before the MMC by the lessee. However, in that suit the Plaintiff could only claim reliefs in respect of the recovery of possession which is the main relief in the suit. The Plaintiff has also sued for injunction against the lessee and the developer from demolishing the suit structure carrying on construction or consuming TDR of the suit property. The Plaintiff could not and accordingly has not sued for any declaration that it, as the owner of the property, was entitled to the TDR rights or that the lessees were not entitled to develop under the TDR rights. 13. After filing of that suit plans have stated to have been sanctioned by MMC without the consent of the Plaintiff as the owners of the suit property. Hence that cause of action has not arisen at the time of the earlier suit. Besides the Plaintiff could not and accordingly has not applied for relief for declaration about the illegality of the plans or have the 7 same cancelled. The relief of entitlement to TDR or the declaration in respect of the plan sanctioned by the MMC can only be granted by civil court. Hence a separate suit for those reliefs is required to be filed by the Plaintiff in the Civil Court, which is this suit. Consequently leave under order 2 rule 2 was also not required to be taken in that suit at the time it was filed or thereafter. 14. The plaint in this suit cannot be rejected . The court has inherent jurisdiction to try the suit. Notice of Motion is dismissed. (Smt Roshan Dalvi, J)