Remanded

Western Steel Corporation and Ors. v. the Trustees of the Port of Bombay and Anr.

Bombay HC18 Sept 2006FA/1823/2006

Case brief

AI extract

What is this about?

Appeal against Trial Court order dismissing suit for want of notice under Major Port Trusts Act. Single Judge quashed order, remanded for full trial with timeline.

What did the court decide?

Judgment and decree of Trial Court quashed; Suit remanded for retrial with time frame given.

What the court decided

Western Steel Corporation and Ors. Vs the… — Civil Procedure and Limitation | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION.

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FIRST APPEAL No. 1823 OF 2006.

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Western Steel Corporation and Others.

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..Appellants.

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Vs.

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The Trustees of Port of Bombay. ..Respondents.

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Mr. M.L. Palan i/b J.P.Thakkar with R.H. Bhanwari for the Appellants.

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Mr. U.J. Makhija i/b Motiwalla & Co. for Respondent No.1.

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CORAM: S.B.DESHMUKH,J. DATED: 18.9.200 6. P.C.:- 1] Heard the learned Counsel for the Parties. 2] Admit. 3] By consent of the Parties, the appeal is taken up for final hearing. 4] The present Appellant had filed S.C. Suit No. 2334 of 1983 in the Court of City Civil Court at Bombay for perpetual

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injunction	restraining the Defendants	from
disturbing	possession and taking	forcible
possession	of the suit property. D	efendant
No.1,	in the Suit, is the Trustees of	Port
of Bom	bay and Defendant No.2 in the Su	it is
the	original lessee. After	service
Defendant	No.1, the Trustees of the Port	of
Bombay,	entered apperance and filed	Written
Statement	in response to the Suit.	The
Copy	of the Written Statement is	also
annexed	with this Appeal. The Trial	Court
after	considering pleadings of the	Parties,
framed	about six issues. It appears	that
the	learned Trial Court disposed of	the
Suit,	in relation to issue No.2	i.e.
maintainabi	lity of the Suit for want	of
notice	under Section 120 of the Major	Port
Trusts	Act. The Trial Court has	not
recorded	any finding in relation to	Issue
Nos.	1,3,4 and 5. The Trial Court w	as of
the	opinion that since no notice	under
Section	120 of the Major Port Trusts	Act
was	served to Defendant No.1, Suit is	not
maintainabl	e and, therefore, according	to

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the Trial Court, other issues do not

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survive for consideration.

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5]	Th	e	learned Counsel		f	or the
Plaintiffs	relied		on the	Judgment	of	the
Apex	Court in		the matter	of The	Madras	Port
Trust	Vs.		Hymanshu	International	by	its
Proprietor	V. Venkatadri (	d	ead) by L.Rs.

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reported in U.J.(S.C.)1979, 157.

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6]		The	learned	Counsel			for the
Respondent,		as	per	the	directions	of	this
Court	has	mad	e	available	a copy	of	the
Agreement	in	bet	ween	the	Defendant	No.1	and
Defendant		No.2	for	allotm	ent of	the	plot
No.	255	in	Block	No.2A	at	Coal	Bunder,
Darukhana,		Bomb	ay	i.e.	the	Suit	property.
The	copy	of	the	Monthly	Tenancy	of	Port
Trust	Land	for	the	Storage	of	Goods	in the

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Open, dated 4th May, 1973 is also filed on record.

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7]		It appears	that De	fenda	nt No.1	had
filed	a	Suit No.	52	of	1974	in	this	High
Court		against the	D	efenda	nt	No.2,		seeking
possession		of the	Suit	pro	perty.		In	Suit

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No. 52 of 1974, the decree is passed by this Court in favour of Defendant No.1. The learned Counsel for Respondent No.1,

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states, that Execution Proceeding is

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pending in the Executing Court.

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8] I have considered the pleadings in
the plaint as well as Written Statement	and
Issues framed by the Trial Court.	The
Trial Court, ordinarily should decide	all
the issues, arising between the	Parties,
considering the evidence led on behalf	of
the Parties. Issues	regarding
maintainability of the Suit and/or for	want
of notice also need to be considered	in
relation to the evidence led on behalf	of
the Parties. Recording finding on	all
issues including the issue	regarding
jurisdiction and maintainability of	the
Suit facilitates the Appellat	e/Superior
Court to decide the lis between the	Parties
finally. In case, the Trial Court	has
disposed of the Suit, without resortin	g to
provision laid down under Section 9-A	of
The Code of Civil Procedure or	on
preliminary issue, in that eventuality	if

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the	Appellate	Court comes to	different
conclusion,		the only course open	for
Appellate	Court	is to remand the matter	for
retrial	before	the Trial Court. In	the
present	case,	in my view, it would	have
been	approp	riate on the part of the	Trial
Court	to	decide and dispose of the Sui	t on
all	issues	arising between the parties	on
the	basis	of documentary as well as	oral
evidence,	if	any, led by the	Parties.
Since	the	Suit is disposed of only on	the
ground	of	lack of notice under Section	120
of	the M	ajor Port Trust Act, judgment	and

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decree passed by the Trial Court needs to be quashed and set aside.

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.		How	ever,	I have not	heard the
Parties	on	any	of	the iss	ues or	merits	of
the	case.		All	the con	tentions	are	left
open	to	the	Par	ties to	the Suit,	to	be
agitated	an	d	decid	ed by	the Tri	al	Court.
In	this	view	of	the m	atter, Judg	ment	and
decree	pass	ed	by	the Tri	al Court	in	S.C.
Suit	No.	2334	of	1983	needs to	be	quashed
and	set	aside.		However,	looking	to	the
fact	that	Suit	was	pending	in	the	Trial

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Court, for pretty long time, some time frame for early disposal of the Suit also needs to be given to the Trial Court.

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9] In the result, Judgment and Decree passed by the Trial Court in S.C. Suit No. 2334 of 1983 stands quashed and set aside. Hearing of the Suit is remanded to the Trial Court.

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10] It is made clear that monthly tenancy of the Port Trust land for the Storage of goods in the open,its document filed in this Appeal, is not in relation to the Suit property and Defendant No.2.

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However, it is the format used by Defendant No.1.

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11] The Trial Court shall give opportunity to the Parties to lead oral as well as documentary evidence, if necessary, and decide the Suit expeditiously, and as

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far as possible, on or before 31st of March,2007.

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12] Mo order as to costs.

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13] The Parties are directed to appear

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in the Trial Court on 3rd of October, 2006.

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[S.B.DESHMUKH,J.]