1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 260 OF 2009 In Suit No.492 of 2007 M/s.Tanna Realty Appellant (Org. Defendant No.3) Vs. 1. Panorama Premises Co-operative Housing Society Ltd. 2(a) Smt. Tara Moolsinh Karsondas 2(b) Hemant Moolsinh Karsondas 3. Shantu Karsondas 4. The Municipal Corporation of Greater Bombay Respondents (Org.Plaintif Deft.Nos. 1A, 1B, 2 & 4.) Mr.Raju Subramaniam, Senior Counsel with Ms.Snehal Shah i/b. Purnanand & Co. for appellant. Mr.Pravin Samdani, Senior Counsel with Mr.Arun Mehta i/b. Akshar Laws for Respondent no.1. Mr.S.K. Sonawane Patil for respondent no.4. 2 CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. Reserved on: January 5, 2010. Pronounced on : February 9, 2010. JUDGMENT (PER B.H.MARLAPALLE, J.) 1. This appeal is directed against the interlocutory order dated 12th March 2009 thereby dismissing Notice of Motion No.71 of 2009 filed in Suit No.492 of 2007. The said Notice of Motion was taken out by Defendant no.3, the present appellant, claiming that the plaint was required to be returned under Order VII Rule 11 of CPC., and directions were also sought under Order VII Rule 10 of CPC. Preliminary issue was framed as to whether the Court has inherent jurisdiction to try the suit and it was answered in the affirmative by the impugned order. 2. The present respondent no.1 Society is the plaintiff in Suit No.492 of 2007 and the suit has been filed for the declaration that, (a) Plaintiff – Society is the owner of the property bearing Survey No.201, Survey No. 3 356, Falni 3 Part and Survey No.357, Plot No.45 and bearing Plot No.63 of the Santacruz Town Planning Scheme II, House No.128, Ghodbunder Road, Ward-A, Santacruz and bearing CTS No.G-195, 196, 197 and 198 admeasuring about 2826.01 sq. meters including the portion of the land and structures occupied by Defendant Nos.1 and 2 as lessee; (b) the plaintiffs alone are entitled to the TDR rights of development and construction and none else whatsoever; (c) Defendant Nos.1 and 2 have no right to develop and construct on the portion of the plot occupied by them as lessees by consuming FSI/TDR of the plaintiffs’ plot of land and/or their portion of land occupied by them as lessees in any manner whatsoever; (d) the plans sanctioned by Defendant No.4 granting permission in the name of defendant nos.1 and 2/3 and granting IOD for development and construction is illegal, bad in law and liable to be revoked, cancelled and set aside and be not acted upon. Further relief of permanent / temporary injunction against defendant nos.1, 2 and 3 was also sought and it was also prayed that Court Receiver be appointed as Receiver in the respective suit property in occupation of defendant nos.1 and 2 and to keep the same in his custody without being allowed to be developed during the pendency of the suit. 4 3. The plaintiff is a Society registered under the Maharashtra Co- operative Societies Act, 1960 under Registration No. BOM/GEN/1240 dated 15th February 1979. By registered conveyance dated 26th February 1979 the original owners of the suit plot viz. Moolsinh Karsondas and others sold and transferred that land along with the building thereon to the plaintiffs. The defendant nos.1 and 2 are the successors of the original owners and at the time of entering into the deed of conveyance there was a condition that the plaintiff shall become owners of the plot but shall give on lease portion of the property wherein main bungalow of Defendant Nos. 1 and 2 is situated known as “Tulsi Bhavan”. Accoridnlgy on 26th February 1979 lease deed was executed and registered between the plaintiffs on the one hand and defendant nos.1 and 2 on the other hand and accordingly lease has been granted to defendant nos.1 and 2 of all that piece and parcel of land together with structure standing thereon known as “Tulsi Bhavan” and occupying an area admeasuring about 1450.76 sq.mtrs on yearly lease token of Re.1/-. As per the plaintiff – Society the defendant nos.1 and 2 occupied the said bungalow for some time but subsequently they vacated it and recently they have entered into a development cum sale / conveyance / assignment deed with defendant no.3 intending to demolish the existing 5 property by name “Tulsi Bhavan” and construct on the said plot of land a new multi storeyed structure by consuming TDR over and above the FSI not consumed or available as per the new development Rules on the entire plot of land. The plaintiffs further claimed that the developer intends to try and bring FSI of the whole plot of land by way of TDR which can go upto 30,000 sq.ft. for which the plaintiffs alone have right as the owners and the defendant nos.1 and 2 have no such right. The plaintiff Society filed RAE Suit No.576 of 2005 by way of abundant precaution in the Court of Small Causes against defendant nos.1 and 2 for their eviction and for possession of the area occupied by “Tulsi Bhavan” (1450.76 sq.mtrs.). While the said suit was pending, as per the plaintiffs, the defendant nos.1 and 2 entered into an agreement with defendant no.3 to develop the said portion of “Tulsi Bhavan” by constructing a multi storeyed building and the plans have been approved by defendant no.4 – the Municipal Corporation and, therefore, Suit No.492 of 2007 came to be filed before this Court (on the Original Side) for the reliefs stated hereinabove. As per the plaintiffs the table in respect of the plot of land proposed at the site and TDR is as follows: (a) Area of plot of land 2876.01 sq.mtrs. (b) Area of the plot of land given on lease and occupied by Tulsi 6 Bhavan 1450.76 sq.mtrs. (c) FSI retained of bungalow 696.41 sq.mtrs. (d) FSI proposed to be constructed by TDR 2826.01 sq.mtrs. Copy of the sanctioned plan was annexed at Exhibit “D” to the plaint. 4. It was submitted by Mr. Subramaniam, the learned Senior Counsel appearing for the appellant that Suit No.492 of 2007 was not maintainable in view of the pendency of RAE Suit No.576 of 2005 before the Small Causes Court and the learned Trial Judge fell in error in holding that the suit was maintainable. He referred to the provisions of Section 33 of the Maharashtra Rent Control Act, 1999 as well the reliefs sought in RAE Suit No.576 of 2005 and in the present suit and submitted that the reliefs prayed for in the present suit are ancillary and / or incidental to the suit relating to the recovery of rent and possession and these reliefs of declaration and injunction are within the ambit of Section 33 of the Maharashtra Rent Control Act, 1999. As per him the jurisdiction of the Small Causes Court under Section 33 of the said Act is not restricted to the suits for recovery of rent and possession of premises only and if the reliefs are incidental / ancillary to the main relief of recovery of rent and/or possession of 7 premises, such suits are required to be filed before the Small Causes Court only or in the existing suit appropriate amendments could be sought for these reliefs rather than filing a separate suit in the civil Court and, therefore, the learned trial Judge did not appreciate the provisions of Section 41 of the Presidency Small Causes Courts Act, 1882. It was also submitted that the learned trial Judge failed to appreciate the order dated 11/4/2008 passed in Writ Petition No.1031 of 2008. He placed reliance on the following decisions and submitted that the plaint ought to have been returned under Order VII Rule 11 (d) of CPC by holding that the suit was not maintainable during the pendency of RAE Suit No.576 of 2005 before the Small Causes Court, in view of the bar of Section 33 of the Maharashtra Rent Control Act, 1999, read with Section 41 of the Presidency Small Causes Courts Act, 1882. 1. Dattatraya Krishna Jangam Vs. Jairam Ganesh Gore [AIR 1965 Bom 177] 2. Eknath Vithal Ogale v. Mansukhlal Dhanraj Jain [1987 Bombay Law Reporter Vol. XC Page 22] 3. Sutar Pukraj Somtiji Vs. Yellubai Mallappa Wagle & anr. [2002 (3) Mh.L.J. 787] 8 The learned counsel also relied upon the decision of the Supreme Court in the case of Mansukhlal Dhanraj Jain & ors. Vs. Eknath Vithal Ogale [AIR 1995 SC 1102]. It was also urged that unless leave was obtained from the Small Causes Court under Order II, Rule 3 of C.P.C., the suit filed before the High Court was not maintainable. 5. The respondents on the other hand while supporting the impugned order pointed out that the reliefs prayed for in the Suit No.492 of 2007 filed before this Court on its Original Side is not for any ancillary or incidental relief of seeking possession or arrears of rent and it is an independent suit filed for a declaration not only against the defendant nos.1 and 2 but against the Municipal Corporation as well so as to make the permission granted by it or the plans sanctioned by it as null and void and inoperative. The reliefs prayed for in Suit No.492 of 2007 cannot be termed as ancillary or incidental to the reliefs prayed in RAE Suit No.576 of 2005 pending before the Small Causes Court. The respondent – Society relied upon the following decisions: 1. Narayan Ganesh Joglekar v. Trimbak Vishnu Joglekar [1987 9 Bom.R.C. 72] 2. Omprakash Tulsiram & ors. Vs. M/s. H.J. Leach & Co. [1989 Mh.L.J. 51] 3. Rafiuddin Nuruddin Musalman Vs. Abduyl Karim Abdul Reheman & ors. [2005 (4) Mh.L.J. 646] 6. It is well settled that for the applicability of Section 41(1) of the Small Causes Courts Act the following conditions must be satisfied before taking a view that the jurisdiction of the regular competent civil court like the City Civil Court is ousted, (a) It must be a suit or proceedings between the licensor and lincesee; or (b) between a landlord and a tenant; or (c) such a suit or proceeding must relate to the recovery of possession of any property situated in Greater Bombay; or (d) relating to the recovery of licence fees or charges or rent thereof. The enquiry which becomes necessary to decide the jurisdiction of 10 the civil court is to find out from the averments in the plaint whether the suit was between the licensor or licensee and whether it related to recovery of possession of immovable property situated in Greater Bombay. 7. In the case of Mansukhlal Jain (Supra) the Supreme Court observed as under: “When Section 41(1) of the Small Causes Courts Act is read in juxta position with the aforesaid Section 28 of the Bombay Rent Act, it becomes clear that pari materia words are used about nature of suits, in both these provisions for conferring exclusive jurisdiction on Small Causes Court, namely, they alone can entertain such suits or proceedings relating to recovery of possession of premises. It is of course true that Section 41 of the Small Causes Courts Act deals with such suits between the licensee and licensor while Section 28 of the Bombay Rent Act deals with suits between landlord and tenant. But the nature of such suits as contemplated by both these sections is the same, namely, it should be the suit 11 relating to the recovery of possession of premises. Interpreting the phrase `relating to recovery of possession’ as found in Section 28 of the Bombay Rent Act, a Bench of three learned Judges of this Court in the case of Babulal Bhuramal and anr. V. Nandram Shivram and ors. [(1959) SCR 367], held that a suit for declaration that one of the plaintiffs was the tenant of the defendant landlord and the other plaintiffs were his sub-tenants and they were entitled to be protected from evidence squarely falls within the exclusive jurisdiction of the Small Causes Court, Bombay, under Section 28 of the Bombay Rent Act and jurisdiction of the City Civil Court for entertianing such a suit is excluded.” 8. In the instant case the learned trial Judge considered the scheme of Section 33 of the Maharashtra Rent Control Act and noted that only the suit relating to recovery of rent and possession of the premises is the suit in which the Civil Court lacks inherent jurisdiction or the jurisdiction is barred. However, the instant suit was not for recovery of rent as well as for recovery of possession. It is also not for any order relating to recovery of rent or possession. The declarations which were sought in respect of TDR 12 under prayer clauses (a) and (b) are also not under the lease deed. Similarly the declaration against the Mumbai Municipal Corporation with regard to the illegality or otherwise of the plans is also not the ancillary relief. Hence these reliefs cannot be granted by the Court of Small Causes at Bombay and the relief of injunction is only ancillary relief to the relief of declaration. 9. Mr. Subramaniam, the learned Senior Counsel invited our attention to Clause 4(c) of the lease deed and submitted that defendant nos.1 and 2 have been given full rights to demolish the existing building and reconstruct a new building by consuming the FSI available. This submission, prima facie, may be sustainable but at the same time the said agreement does not envisage the concept of TDR and it is the allegation of the plaintiff that the building plans have been sanctioned on the basis of almost 30,000 sq.ft. proposed built up area. The rights of the plaintiff and the defendant nos.1 and 2 regarding the additional FSI and TDR which the defendants claim to emanate from the lease agreement and the declaration thereof cannot be adjudicated in the suit pending before the Small Causes Court and at the same time the relief to declare the sanctioned plans as illegal and void ab initio cannot be gone into as an ancillary relief in the 13 said suit. Though the first relief sought in Suit No.492 of 2007 is of declaration of ownership, that by itself cannot be a reason to return the plaint holding that the suit for the remaining reliefs cannot be entertained having regards to the provisions of Section 33 of the Maharashtra Rent Control Act, 1999. The learned trial Judge has, therefore, rightly concluded that the suit was maintainable and the prayer to return the plaint under Order VII Rule 11 of CPC has been rightly rejected. We also do not agree with the submissions that the Suit No. 492 of 2007 could not have been filed unless leave of the Small Causes Court was obtained under Order II, Rule 3 of C.P.C. 9. Mr.Subramaniam also submitted that the issue of jurisdiction being a mixed question of fact and law, it was necessary for the trial Court to call upon the parties to lead evidence and only thereafter decide the Notice of Motion. In this regard he has relied upon a decision of this Court in the case of Meher Singh Vs. Deepak Sawhny & anr. [1998 (3) Mh.L.J.940]. It is pertinent to note that the Notice of Motion was taken out by the present appellant and no application was filed for seeking leave to adduce evidence so as to decide the motion. When such a prayer was not made, it is not permissible for the appellant to raise a grievance that the Notice of Motion came to be decided without calling upon the parties to lead evidence. In 14 addition the issue of jurisdiction was raised solely on the ground that RAE Suit No.576 of 2005 was pending before the Small Causes Court and the reliefs prayed for in the instant suit were ancillary or incidental to the reliefs prayed for in the suit pending before the Small Causes Court. To find out whether it was an ancillary relief or supplemental relief, what is important is to consider the plaints in both the suits and if by perusal of plaint in the instant suit it could be decided, as has been done by the impugned order, that the relief sought for was not incidental / supplemental to the reliefs prayed for in the suit pending before the Small Causes Court, the necessity of recording evidence would not arise. The trial court was required to examine whether the bar under Section 33 of the Maharashtra Rent Control Act read with Section 41 of the Small Causes Courts Act was applicable so as to return the plaint on the basis of the reliefs prayed for. Hence, this ground also fails. 10. In the premises, no interference is called for in the view taken by the learned trial Judge and it does not suffer from any error apparent on the face of record. Hence the appeal must fail at the threshold and the same is hereby dismissed. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE,J.)