Shri P.C. Ramakrishnan Vs the Municipal Corporation of Greater Bombay and Anr.

1.		Heard	the learne	d Advocate	s appearing for	the
parties.		By	thi	s First	appeal	the o	riginal		Plaintiff
has	taken	exc	eption	to the	Judgment	and	De	cree	dated
22nd	June	1989	passed	by	the learned	Judge	of	the	City
Civil	Court,	Mu	mbai.	By	the im	pugned	Ju	dgment	and
Order,	which	is	a c	ommon	judgement	and ord	er	passed	in
several	suits,		the	learned	trial Jud	ge	dism	issed	the
Notice	of Mo	tion	for	interim	relief as	well	as	the	suit.
So far	as	the	present	Appe	al is c	oncerned,	it	relates	to
L.C.Suit	No.5312	of	1984	filed	by the	Appella	nt.	By	the
impugned	Ju	dgment	and	order,	the suit	and	the	Notice	of

¶15

Motion for temporary injunction filed by the Plaintiff

¶16

has been dismissed.

¶17

The learned Advocate for the Appellant submitted

¶18

				: 2 :
that	the	learned	trial	Judge		has	committed	an	error	by
dismissing		the	suit	after		hearing	the	argum	ents	which
were	limited	to	the	merits	of	the	Notice	of	Motion	for
temporary	in	junction.		He		submitt	ed that	the	suit	was
never	fixed	for	hea	ring.		He	pointed	out	that	the
Respondents		had	not	filed		written	statement		and	even
issues	were	not	framed.		He	poin	ted out	the	entries	in
the	Roznama	of	the	suit	and	subm	itted that	at	no	stage
the	suit	was	fixed	for	hea	ring	and ther	efore,	the	suit

¶19

should not have been dismissed without giving an

¶20

opportunity to the Appellant to lead evidence.

¶21

3.	Shri	Xavier	appea	ring for the Resp	ondent	No.1
submitted	that	as	th	e suit	itself		was	not	maint	ainable,
the	learned	trial	Ju	dge was	just	ified	in	dism	issing	the
suit.	He	submi	tted	that the	learn	ed	trial	Jud	ge	was
entitled	to	adopt	the	course w	hich	he	has	ado	pted	in
view of	the prov	isions	of	Rule 1	of	Ord	er XV	of	the	Code

¶22

of Civil Procedure, 1908. He, therefore, submitted that

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no interference is called for.

¶24

I have considered the submissions. In the

¶25

impugned	Judgment	and orde	r, the	learned	trial	Jud	ge has
framed	four	points for	considera	tion.	The	first	point
is	regarding	existence of	a	prima-facie	case	for	grant
of	temporary	injunction.	The	second	point	is	regarding
the	bar	of limitation	and	non-maintainab	ility	of	the
suit	on acco	unt of the	failure	of the	App	ellant	to give
a stat	utory no	tice, the	third	point is	re	garding	balance

¶26

: 3 :

¶27

of c	onvenience	and	irrepara	ble injury and	the	fourth	one
is	an u	sual p	oint reg	arding the order in	the	suit	and
the	notice	of	motion.	While recording	the	finding	on
point	No.2,	the	learned	Judge has held	that	the	suits
which	were	before	him,	were time barred	and		therefore,
Notices	of	mot	ion for	temporary injunction		were	also
time	barred.	He	held	that the suits were	liab	le to	be
dismissed	on	ac	count	of non-compliance		with	the

¶28

provisions of section 527 of the Bombay Municipal

¶29

Corporation Act, 1888.

¶30

5. Perusal	of the roznama of the suit shows that
all along the	notices of motion taken ou	t by	the
Appellant and	the Plaintiffs in other comp	anion	suits
were on board.	Roznama dated 22nd November	1988	shows
that the notice of	motion taken out by the	Appellan	t was
dismissed for d	efault as the Advocate for	the	Appellant
was not present.	Roznama further records	that	the
Respondents were	directed to file writte	n	statement
within a period	of 8 weeks. Usual order	of	discovery
and inspection	was passed. Subsequently on	the	same
date, the Advocate	for the Appellant appeared	and	orally
prayed for rest	oration of the Notice	of	Motion.
Accordingly the	Notice of Motion was restored	and	was
kept for hearing	along with the notices of	motion	filed
in the companion	suits. The entries made	on	29th
November 1988,	5th December 1988, 12th Dec	ember	1988,
16th December 1988,	19th December 1988, and	12th	January
1989 show that	all along the Notice of Moti	on was	being

¶31

				: 4 :
adjourned	for	hearing.		Rozna	ma of	the	proceed	ings	shows
that	till	date	of	passing	the	impugned	order,		written
statement	was	not	filed	by	the	Responde	nts.		Roznama
discloses	that	there	was	no	order	passed	by	the	learned
Judge	directing	that		the	suit	will	proceed		without
written	statement	of	the	Respon	dents.	There	is	no	order

¶32

passed for fixing the suit for hearing or for exparte

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hearing.

¶34

6.	By the impugned order,	the learn	ed Judge	has
proceeded	to record a fi	nding	that	the	suit	w	as	barred
by	limitation. The iss	ue of	limita	tion	is	not	a	pure
question	of law and it	is a	mixed	ques	tion	of	law	and
facts.	The said issue	could	not	hav	e	b	een	decided
without	framing preliminary	issu	e.	Even	i	f	the	issue
regarding	jurisdiction of	the	Court	was	rai	sed	at	the
time	of hearing of the	Notice	of	Motio	n,		the	learned
Judge	was required to	frame	a	prelimi	natry		issue	as
regards	jurisdiction and	give	an	opport	unity		to	the
parties	to lead evidence.	R	eliance	was	pl	aced	by	the
learned	Advocate for the	Resp	ondents	on	t	he		provisions
of R	ule 1 of Order XV	of the	said	Code	of	1	908.	The

¶35

provision of the said Rule comes into picture only after

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the issues are framed under Order XIV of the said Code.

¶37

7.		Moreov	er Rozna	ma show	s that the	parties	were
never	put	to	notice	that	the	merits	of	the	suit	were
being	consid	ered.	F	rom	the	rozna	ma	it	appears	that
parties	were	never	put	to	notic	e t	hat	while	deciding	the

¶38

Notice	of Motion	for	: 5 : temporary	injunction,	the	suit	will
be	decided on m	erits.	In fact th	e suit	could	not	have
been	decided at	that	stage. Th	e entire	appr	oach of	the
learned	Judge is	not	only erroneous	but	is	contrary	to
the	express prov	isions	of the said	Code.	In	my	view,
while	deciding th	e	notice of	motion	f	or t	emporary
injunction,	the	learne	d Judge co	uld not	h	ave co	nsidered
the m	erits of the	sui	t. Therefore,	the	only	course	open
for th	is Court is	to	remand the	suit to	the	trial	Court.
It	must be n	oted	here that along	with	the	Appeal,	the
Appellant	had filed	Ci	vil Application	No.3787	of	1989	on
which	interim relie	f	of temporary	injuncti	on	was	granted
by	this Court on	22	nd August 1989	and	the	said	interim
relief	was confi	rmed	on 27th Augu	st 2003.		No	purpose
will	be served	by	remanding the	Notice o	f	Motion	for
temporary	injunction		as interim	injunction	gr	anted	by
this	Court is	oper	ating for last	about	16	-1/2	years.
Considerin the same w	g the fact that the suit i ill have to be heard exp	s of the editiou	year 1984, sly.
8.	Hence th	e follow	ing order is passed:
i)	The imp set aside in so far is concerned.	ugned as L.C.S	Judgment and uit No.5312 of 1984	Decree	is	quashed	and
ii)	L.C.Suit No.5312 the City Civil Cour	of 1984 t at Bo	is restored to file of mbay.

¶39

: 6 :

¶40

The	Resp	ondents	will	file	written		statement
within	a	period	of 16	weeks from	today	and	the
suit	will	be	decided	as	expeditio	usly	as
possible	and prefer	ably on or	before 31st M	arch
2007.

¶41

The	interim	relief gr	anted	in		Civil	Application
No.3787	of	1989 will	contin	ue	to	operate	till
final	disposal	of the	suit	su	bject	to	condition
that the	Appella	nt will	not	part		with	possession
of the	suit str	ucture and	will	not		carry	out any
additions and a	lterations to t	he suit structure
without the per	mission of the	trial Court.

¶42

v) The	parties	are directed	to	appear	before	the
learned	Principal	Judge of	the	City	Civil	Court,
Bombay,	on	19th June 2006	at	11.00	a.m.	The
learned Pri	ncipal Judge w	ill assign the suit to
the appropr	iate Court for	final hearing.

¶43

vi) Office is directed to forthwith transmit the record and proceedings of this suit to the trial Court.

¶44

vii) All contentions of the parties on merits are kept open. The continuation of the interim relief granted at the stage of admission will

¶45

not be construed as any expression of opinion on

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merits of the case by this Court.

¶47

: 7 :

¶48

viii)The First Appeal is allowed partly in the above

¶49

	terms with no order as to costs.
ix)	The parties and the trial Court is directed to
	act on an authenticated copy of this order.

¶50

Judge.

Shri P.C. Ramakrishnan v. the Municipal Corporation of Greater Bombay and Anr.

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Shri P.C. Ramakrishnan v. the Municipal Corporation of Greater Bombay and Anr.

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