1 fa632-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.632 OF 2011 ALONGWITH CIVIL APPLICATION NO. 843 OF 2009 M/s. B. Jayantilal (Bipinchandra Jayantilal) a duly registered partnership firm .. Appellant V/s. The Municipal Corporation of Greater Bombay & Anr. .. Respondents ..... Mr. Anil Singh & Ms. Aswini R. Singh i/b. Mr. D. R. Singh for hte appellant. Mrs. K. K. Soraan for respondent No.1 – BMC. ..... CORAM : A. S. OKA, J. DATE : MAY 4, 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the appellant and the learned counsel appearing for the first respondent. The First Appeal is taken up for final disposal by consent of the parties. 2. The appellant is the original plaintiff and the respondents are the defendants. The first respondent is the Municipal Corporation and the 2 fa632-11 second respondent is the landlord of the appellant in respect of the suit structure. The challenge by the appellant in the suit filed by him is to the notice issued by the first respondent under Section 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the said Act”) and the order dated 17th January, 2002, passed on the said notice. The notice has been issued alleging that an unauthorized construction has been carried out by the appellant admeasuring 16 feet X 16 feet, more particularly shown in the sketch which is a part of the notice. The appellant replied to the notice by contending that the alleged structure is not a structure or a room as defined under the said Act but it is an open space covered with grill and collapsible gate which is being used by the appellant to park a vehicle. It is contended that the said premises is being used as a garage. By order dated 17th January, 2002 passed by the Assistant Commissioner of respondent No. 1, it was held that the structure was unauthorized and was ordered to be demolished. 3. The trial Court dismissed the suit by holding that the offending structure is not authorized. The trial Court has noted that both the respondents did not file written statement. The trial Court noted that the second respondent did not contest the suit and the contest was only 3 fa632-11 by the first respondent-corporation. The learned counsel appearing for the first respondent submitted that this was a case where the first respondent could not file written statement due to genuine administrative difficulties and, therefore, an opportunity may be granted to the first respondent to file written statement by passing an order of remand. He submitted that the first respondent may be permitted to treat the reply to the Notice of Motion for temporary injunction as its written statement. The learned counsel appearing for the appellant relied upon the Roznama of proceedings of the suit and pointed out that the first respondent does not appear to have filed a reply to the Notice of Motion. He pointed out that there was sufficient opportunity for the first respondent to file written statement and at this stage, such a request cannot be acceded to. He pointed out a decision of this Court dated 14th August, 1996 in Appeal From Order No. 952 of 1996 (Ramesh Thakkar V/s. Renuka D. Bagaria). He pointed out that assuming that there is a reply filed by the appellant to the Notice of Motion, in view of the said decision, the reply cannot be permitted to be adopted or treated as a written statement. 4. I have given careful consideration to the submissions. Before going into to the factual aspects of the case, it will be necessary to advert to 4 fa632-11 the question whether an affidavit-in-reply filed by a defendant to Notice of Motion for temporary injunction taken out by the plaintiff can be permitted to be adopted as a written statement. In this connection, the learned counsel appearing for the appellant pointed out the decision of this Court in the case of Ramesh Thakkar (supra). In paragraph No. 6 of the decision, this Court observed thus: “Before I close, I would like to observe that in number of cases I have found that the City Civil Court Orders the Affidavit-in- Reply of the Defendant to the Notice of Motion to be treated as Written statement. If that is the general practice then it deserves to be curbed and discontinued. An Affidavit is in the nature of Evidence and cannot partake the character of pleadings and therefore, cannot be a substitute of Written Statement. It is not in the interest of justice nor is proper that an Affidavit-in-Reply to the Notice of Motion is ordered to be treated as Written Statement. If the concerned Court feels that Written Statements are not filed in time by the Defendants and they protracts the litigation on this ground, the same can be tackled by passing appropriate Orders fixing time in filing Written Statements. Accordingly, copy of this Order should be sent to the Principal Judge, City Civil Court, Bombay for his information as well as for circulation to the other Judges of the City Civil Court.” 5. What has been observed by this Court is that affidavit-in-reply filed to the Notice of Motion cannot be treated as a written statement on the ground that an affidavit is in the nature of evidence and cannot partake the character of pleadings and, therefore, affidavit-in-reply cannot be a substitute for a Written Statement. 5 fa632-11 6. It must be noted here that as per the City Civil Courts Rules, an application for temporary injunction or for appointment of the Court Receiver has to be made by taking out a Notice of Motion. There is no provision in the said Rules laying down the manner in which a reply to the Notice of Motion can be filed. In the Bombay High Court Original Side Rules, 1980, there is a specific provision in the Rule 144 which provides that the reply to the Notice of Motion shall be in the form of an affidavit-in-reply. 7. Under Section 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code), it is provided that the procedure provided in the said Code in regards to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Therefore, the procedure provided in the said Code as regards the suits will have to be applied to the applications for temporary injunction and applications for appointment of Receiver, as far as it can be made applicable. As pointed out earlier, the City Civil Court Rules do not require a reply to be filed to a Notice of Motion in the form of an affidavit-in-reply. Therefore, it is always open for the parties to file a reply to the Notice of Motion in the form of a pleading as 6 fa632-11 contemplated by Order VI of the said Code. Such a reply can be always supported by an affidavit. Such a pleading is required to be verified in accordance with Rule 15 of Order VI of the said Code. This is how a reply is filed to the interim applications in the suits in the Civil and District Courts in the State. If such a reply is filed in the form of a pleading, the same can be always adopted as the written statement. 8. On the issue of adopting a reply filed to an application for interim relief as written statement, the law has been laid down by this Court in the case of Kuldeep Umraosingh Ostwal & Anr. V/s. Chandrakant N. Patel & Ors. [2010 (Supp.) Bom. C.R. 565]. This Court approved the long standing practice adopted by the Courts in the Mofussil in the State under which a reply to application for interim relief is permitted to be adopted as the written statement to the suit. In fact, the said decision of this Court holds that if such a reply to application for interim relief was filed within the period provided under Rule 1 of Order VIII of the said Code, and after expiry of the said period, if the said reply is adopted as written statement, the date of filing the reply will be treated as the date of filing the written statement. In the circumstances, it is obvious that even in a suit filed in the City Civil Court, it is always open for the parties to adopt a reply filed in the form of a pleading to the Notice of 7 fa632-11 Motion for interim relief as a written statement. 9. As far as the affidavits are concerned, there are two provisions in the said Code which deal with the affidavits. The first is the Order XIX of the said Code and the second one is the Order XVIII. As far as Order XVIII is concerned, the same deals with filing of an affidavit in lieu of examination-in-chief. We are not concerned with the said provisions of order XVIII. 10. Under Rule 1 of Order XXXIX of the said Code, the case for grant of temporary injunction can be established by an affidavit or otherwise. Therefore, there is a practice adopted to file an affidavit in support of the Notice of Motion filed for grant of temporary injunction. Even in Mofussil Courts where the interim applications are filed in form of pleadings, there is an affidavit filed in support of such application. 11. Rule 1 of Order XIX of the said Code reads thus: “Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either 8 fa632-11 party bona fide desires the production of a witness for cross- examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. ” 12. Rules 2 and 3 of the order XIX read thus: “2. Power to order attendance of deponent for cross- examination.- (1) Upon any application evidence may be given by affidavit, but he Court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs. 3. Matters to which affidavits shall be confined.- (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: Provided that the grounds thereof are stated. (2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same. ” 13. Now going back to the decision in the case of Ramesh Thakkar (Supra) the observation by this Court is that the affidavit-in-reply filed to the Notice of Motion is in the nature of evidence and, therefore, it cannot be a substitute for a pleading or written statement. Therefore, 9 fa632-11 the said decision will have no application when a reply is filed not in the form of affidavit, but in the form of a pleading. As far as affidavits are concerned, it will be necessary to make a reference to the decision of the Apex Court in the case of Smt. Sudha Devi V/s. M. P. Narayanan & Ors. [(1988) 3 SCC 366]. In paragraph No. 4 of the said decision, the Apex Court held that affidavits are not included in the definition of 'evidence' in Section 3 of the Evidence Act and affidavits can be used as evidence only if for sufficient reasons the Court passes an order either under Rule 1 or Rule 2 of Order XIX the said Code. Thus, so long as there is no such order passed by the Court an affidavit-in-reply to the Notice of Motion cannot termed as an evidence. With greatest respect, it must be said that this Court in the case of Ramesh Thakkar, has not considered the aforesaid law laid down by the Apex Court. 14. It is not uncommon especially in Mofussil Courts that there is a specific order passed by the Court at the time of the hearing of the interlocutory applications or at the time of hearing of applications for condonation of delay that parties shall lead evidence by affidavits. Only in such a case that the observations made by this Court in the case of Ramesh Thakkar (supra) will apply. In the light of the law laid down in the case of Sudha Devi (Supra), it cannot be said that an affidavit-of- 10 fa632-11 reply filed to a Notice of Motion is in the nature of evidence. It will be in the nature of evidence only if there is an order passed under Order XIX of the said Code. 15. Thus, in view of the law laid down by the Apex Court, the decision of this Court in the case of Ramesh Thakkar (Supra) cannot be read as a binding precedent laying down that an affidaivt in reply to a Notice of Motion cannot be adopted as a written statement. There is no prohibition against the defendant adopting an affidavit-in-reply to the Notice of Motion as a written statement. If the affidavit-in-reply is not verified in accordance with Rule 15 of Order VI, the Court can at any stage permit verification to be made in accordance with Rule 15 of Order VI and also in accordance with the Rule 45 of the City Civil Court Rules. 16. Thus, to sum up, even in a suit filed in the City Civil Court, in view of Section 141 of the said Code, the parties can file a reply to Notice of Motion in the form of a pleading which will governed by Order VI of the said Code. Even otherwise, in a case where affidavit-in-reply is filed to the Notice of Motion, and there is no specific order passed by the Court directing that the affidavit shall be considered as evidence, an 11 fa632-11 application made for treating the affidavit-in-reply as written statement can be favourably considered by the Court. A permission can alway be granted to verify the affidavit in accordance with Rule 15 of Order VI of the said Code. 17. Now coming to the facts of the case, perusal of the Roznama of the suit, does not indicate that any reply was filed to the Notice of Motion for temporary injunction taken out by the appellant. It must be stated here that on 24th October, 2007, time was granted to the first respondent to file written statement. Thereafter, it appears that there was no presiding Judge in the Court and the Court was vacant. Ultimately, on 5th April, 2008, the trial Court passed an order to proceed with the suit without written statement. Thereafter, the suit was fixed for recording of evidence. 18. Considering the large number of litigations which the first respondent is required to face in this Court as well as in the City Civil Court, the prayer made by the first respondent for passing an order of remand will have to be accepted subject to payment of costs. There will be no serious prejudice to the appellant. As a result of restoration of the suit, the interim relief granted in the suit will have to be restored. 12 fa632-11 18. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree is quashed and set aside and L.C. Suit No.567 of 2003 is restored to the file of the trial Court. ii. It will be open for the first respondent to file written statement on or before 27th June, 2011, subject to the first respondent paying costs of Rs.7,500/- to the appellant on or before 27th June, 2011. iii. It will be open for the appellant to adduce such further evidence as may be necessary in addition to the evidence which is already adduced. iv. As a consequence of restoration of the suit, interim relief which was operative during the pendency of the suit stands restored, which will continue till the disposal of the suit. 13 fa632-11 v. Hearing of the suit is expedited. vi. Appeal is partly allowed on the above terms. vii. Civil Application No. 843 of 2009 does not survive and the same is disposed of. JUDGE