Dismissed

Shri Prakash Balu Surve and Anr. v. Mr. Gautam Vitthal Pawar

Bombay HC17 Sept 2013CRA/519/2013

Case brief

AI extract

What is this about?

The High Court dismissed a Civil Revision Application challenging judgments of Small Causes Courts that decreed a suit for possession. The original defendants contested the survey number of the property and the classification of the area as slum, relying on an ad-interim order from a separate suit which was not placed before the Appellate Court. The High Court held that new facts could not be made

What did the court decide?

The Civil Revision Application was dismissed; the impugned decrees directing the applicants to hand over possession were upheld.

Shri Prakash Balu Surve and Anr. Vs Mr. Gautam Vitthal… — Landlord and Tenant | Bombay HC (2013)

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1 / 8 CRA /519/2013

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Tapadia RR/B.920

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 519 OF 2013

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Shri Prakash Balu Surve & Anr

..Applicants

Mr.Gautam V. Pawar

.. Respondent

Mr.N.P.Bhavsar, Advocate for the Applicants. Ms.Purnima Bhatia, Advocate for the Respondent.

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CORAM : R.G.KETKAR,J. DATE : 17/09/2013

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PC :

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Heard Mr. N.P. Bhausar, learned counsel for the applicants and Ms Bhatia, learned counsel for the respondent at length.

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By this Application under Section 115 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') the original defendants have challenged the Judgment and decree dated 2.5.2009 passed by the learned Judge, Court Room no.35 of the Court of Small Causes at Bombay in R.A.E. Suit No.232/548 of 1996 as also the Judgment and decree dated 30.3.2013 passed by the Appellate Bench of the Court of Small Causes in Appeal No.100 of 2009. By these orders, the Courts below decreed the suit instituted by the respondent and directed the applicants to hand over vacant and peaceful possession of the suit premises, namely, ground floor room, situate in Gautam Vithal Pawar, Chawl No.215, School Road, Raipada, Malad (West), Mumbai- 400064.

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In support of this Application, the only contention raised by Mr. Bhavsar is that the suit property is not situated on City Survey No.742/1 to 3, but is situated on C.T.S.No.743/1 to 162. In order to substantiate his submission, he invited my attention to the ad-interim order dated 21.12.2012 passed by the learned Judge of the City Civil Court at Dindoshi, Borivali Division, Mumbai in S.C.Suit No.2855 of 2012 instituted by the respondentplaintiff. In particular, he submitted that as per the survey conducted at the time of preparation of Annexture-II on 28.2.2012, the structures of the applicants herein were found on the land concerned with the slum scheme. The slum rehabilitation scheme was sanctioned for C.T.S. Nos 737, 737/1 to 2, 738/11, 739, 739/1 to 2 to 740/1 to 3, 741/1 to 6, 743 (p), 743(1) to 162 of village Malad (W), Mumbai. He submitted that It is clear from the ad-interim order passed by the learned Judge of the City Civil Court that the suit property wherein the structures of the applicants were situated, is in C.T.S No.743/1 to 162. He submitted that the ad-interim order also recorded that the Notification dated 15.10.1977 declaring C.T.S.No. 742, 742/1 to 3 was set aside by the Tribunal and, therefore, the C.T.S. NO.742, 742/1 to 3 were not included in the slum rehabilitation scheme that was sanctioned on 28.2.2012. He also invited my attention to Annexture-II sanctioned in respect of these survey numbers,

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wherein the name of applicant no.1 Prakash Balu appears at sr.no.249 and the name of applicant no.2 Laxman Balu appears at sr.no.248. He submitted that the finding recorded by the courts below that the suit property is situated in C.T.S. No.742/1 to 3, is wholly unsustainable.

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On the other hand, Ms Bhatia supported the impugned orders. She submitted that both the Courts below, after appreciating the evidence on record, have held that the suit property is situate in C.T.S. No. 742/1 to 3 and that the Notification dated 15.10.1977 declaring his property as slum area, was set aside by the Tribunal. The Courts below have recorded that the suit property is not declared as slum area. In any case, the reliance placed by the applicants on the ad-interim order passed by the learned Judge of the City Civil Court, will not nullify the findings recorded by the trial Court after a full-fledged trial which have been confirmed by the Appellate Court.

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I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. In the present suit, the respondentplaintiff clearly asserted that the land ademasuring 47.3 sq.meters or thereabout bearing C.T.S. No.742, 742/1 to 2 situate at Revenue Village-Malad, Taluka Borivali, Mumbai Suburban District in the locality known as Raipada, School Road,

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Malad(W), Mumbai, is the suit land. The plaintiff also referred to the declaration dated 15.10.1977 made by the competent authority, declaring the said area as the slum area. By the Judgment and order dated 22.12.1995 the said declaration was set aside by the Tribunal. It is specifically asserted that the suit land is not under the slum area. Defendant no.5 is the proposed Co-operative society of the slum dwellers of the neighbouring area. Defendant no.5-society appointed defendant no.6 as a developer for Slum Redevelopment Scheme proposed to be carried out by defendant no.5.

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The applicants resisted the suit by filing written statement and it was contended that as per the amended provisions of the Maharashtra Slum (Improvement, Clearance and Redevelopment) Act, 1971 (for short, 'Slum Act'), protection is given to occupants who are holding photo pass. It was further contended that the area where the suit property is situated is under development and is being developed by defendant no.5 under the S.R.A scheme. The S.R.A. Scheme is undertaken only in respect of the area which is declared as slum. In other words, the case made out by the applicants is that the suit premises is situated in the area which is declared as slum area.

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On the basis of the pleadings of the parties, the learned trial Judge framed necessary issues. The parties led oral as well

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as documentary evidence. The learned trial Judge, after appreciating the evidence on record, has decreed the suit on the ground that the applicants are defaulters within the meaning of Section 12(2) of the Bombay Rent Act; that the plaintiff has established that he requires the suit premises reasonably and bonafide for his own use and occupation and that greater hardship would be caused to him by refusing to pass the decree. The learned trial Judge held that the applicants failed to prove that the suit premises falls in the area which is declared as slum area by the competent authority under the Slum Act and consequently the suit is maintainable in the absence of permission of the competent authority under section 22(2) of the Slum Act.

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Aggrieved by this decision, the applicants preferred Appeal. The Appellate Court upheld the findings recorded by the trial Court on various grounds. The Appellate Court also came to the conclusion that the applicants failed to establish that the area in which the suit premises is situated, is declared as a slum area by the competent authority. In paragraph 9 of the impugned order, the Appellate Court recorded that there was no dispute that the suit premises is falling under C.T.S.No.742/1 to 3. Since the applicants took defence that the land on which the suit premises is situated is a slum, the burden is on them to establish that fact.

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The Appellate Court considered the Notification dated 15.10.1977 that was published in the Government Gazette on 27.10.1977 declaring C.T.S. No.742/1 to 3 as slum area which declaration was set aside by the Tribunal. In paragraph 10, the Appellate Court also recorded that it was not the case of the applicants that subsequently C.T.S.No.742/1 to 3 was declared as slum area. The Appellate Court also considered the submissions made on behalf of the applicants on the basis of patch holder cards in their favour as also issuance of photo pass. The Appellate Court considered the provisions of Section 3(z) of the Slum Act and after considering the Notification held that the applicants herein did not establish that C.T.S. No.742/1 to 3 was declared as slum area. Mr Bhavsar heavily relied upon the adinterim order dated 21.12.2012 passed by the learned Judge in S.C. Suit No. 2855 of 2012. That order also recorded that the respective advocates appearing for the society, Developer as also Slum Rehabilitation Authority opposed the grant of the adinterim order on the ground that the respondent herein is not concerned with the land on which the aforesaid slum scheme is being implemented. After considering the rival submissions, the learned Judge observed that admittedly C.T.S. No.742 in respect of which the respondent herein filed suit, is not part of the said scheme.

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I do not find any merit in the submissions of Mr Bhavsar on the basis of the ad-interim order passed by the learned Judge of City Civil Court. As noted earlier, after the fullfledged trial the learned Judge of the Small Causes Court held that the applicants herein did not establish that the suit premises situated in C.T.S.No.742/1 to 3 was declared as slum area. In fact, the Appellate Court recorded a finding in paragraph 9 of the impugned order that there was no dispute that the suit premises falls under C.T.S. No.742/1 to 3. In view thereof, it is not open to the applicants to contend that the suit property falls in C.T.S.No.743/1 to 162. No such case was made out before the courts below. That apart, the ad-interim order dated 21.12.2012 passed by the City Civil Court was neither produced nor relied before the Appellate Bench of Small Causes Court. The Appeal was decided on 30.3.2013. In these circumstances, it is not open to the applicants to make out the case for the first time in this C.R.A. In the result, no case is made out for invocation of the powers under section 115 of the C.P.C. The Courts below, after appreciating the evidence on record have concurrently held that the suit premises is not declared as slum area. Mr. Bhausar was not in a position to show that the findings recorded by the Courts below are either perverse, being based on no evidence, or that on the basis of material on record, no reasonable or prudent

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person would have come to the conclusion to which the Courts below have arrived at. In the result, the Application fails and the same is dismissed.

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(R.G.KETKAR, J.)

Shri Prakash Balu Surve and Anr. v. Mr. Gautam Vitthal Pawar

Case brief

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Shri Prakash Balu Surve and Anr. v. Mr. Gautam Vitthal Pawar

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