Bombay High Court
Municipal Corporation Of Graeter ... vs Smt. Sarvari Begum on 5 June, 1996
Equivalent citations: (1997)99BOMLR751
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. The appellant Municipal Corporation of Greater Bombay has preferred this appeal dissatisfied with the order dated 10.3.1989 passed by Judge, City Civil Court, Bombay. By the said order, the Court below on the prayer made by the respondent herein (for short original plaintiff) for withdrawd of the suit dismissed the suit for non-prosecution but while dismissed the suit passed certain order.
2. Smt. Sarvari Begum, the original plaintiff, filed the suit against the present appellant the Municipal Corporation of Greater Bombay (for short the original defendant) praying therein that the Notice dated 5.7.1986 bearing reference No. 165/S/SR issued under Section 351 of the Bombay Municipal Corporation Act, 1888 he declared illegal, bad in law, void, inoperative, without jurisdiction and not binding on the plaintiff. Along with the prayer for declaration, the original plaintiff also prayed that the original defendant be restrained by an order of injunction from entering upon, demolishing of suit structure situated at Shivaji Kutir Mandal Gala No. 323 I.B.S. Marg (W), Kurla, Bombay and from in any manner disturbing and interfering with the peaceful enjoyment and occupation of the suit-structure by the original plaintiff.
3. The plaintiff also took out a notice of motion for temporary injunction which was registered as notice of motion No. 5005 of 1986. It appears that an ad interim injunction in terms of prayer Clause (b) of the said notice of motion was granted in favour of the original plaintiff restraining original defendant from entering upon and/or demolishing the suit premises in pursuance of the impugned notice. There is no dispute that while the said notice of motion No. 5005 of 1986 was pending and the ad-interim relief granted in terms of prayer Clause (b) of the said notice of motion was operative, the disputed structure was demolished and the original plaintiff took out the notice of motion for contempt which was registered as Contempt Motion No. 3922 of 1987.
4. The original defendant, so far as claim of the plaintiff in the plaint was concerned, contested it by filing written statement and denied the averments made in the plaint. According to the averments made in the written statement, the structure was unauthorised and there was no illegality in the notice dated 6.7.1986 issued under Section 351 of the Bombay Municipal Corporation Act. Various other pleas were set up in the written statement, to demonstrate that the original plaintiff was not entitled to any relief. The Notice of Motion No. 5005 of 1986 taken out by the original plaintiff for the relief of temporary injunction was also contested by the defendant. As regards the Contempt Notice No. 3922 of 1987, the defence of the original defendant was that they have not demolished original structure but had only demolished the additional tarpoline shed constructed by the original plaintiff after the order was passed and therefore the said demolition was not in contravention or breach of the ad-interim relief granted to the original plaintiff. Alternatively, the original defendant tendered an unconditional apology in case the Court held that there was any violation or breach of the order.
5. The Notice of Motion No. 5005 of 1986 as well as the Contempt Motion No. 3922 of 1987 came up for orders before the trial Court and during the course of arguments, the plaintiff filed an undertaking that she would restrict her occupation to the structure admeasuring 83 sq. mtrs. only and that she would not extend it any further. On that basis, the trial Court accepted the undertaking and passed the order on Notice of Motion No. 5005 of 1986 that the plaintiff shall prepare a plan of one structure in all admeasuring 83 sq. ft. and shall submit it to the defendants' concerned department for approval. It was further directed that the defendant shall approve the plan in the manner the usual repair permissions are granted and upon such approval being received from the defendants, the plaintiff shall either demolish the present structure and re-construct another structure in conformity with the approved plan or so modify the present plan so as to conform with the approved plan. For the aforesaid purposes, the trial Court granted plaintiff two weeks time to submit her proposal and directed the defendants to dispose of the same expeditiously so as to enable the plaintiff to complete the reconstruction work before the onset of the coming mansoon. At the same time, the trial Court granted direction to the defendants not to enforce the impugned notice and it was observed that in case the plaintiff does not submit the plans/repair permission as directed, within specified time, it would be open for the defendants to enforce the impugned notice. The notice of motion was thus disposed of in aforesaid terms and in view of the aforesaid order on notice of motion, the plaintiff made the prayer before the Court for withdrawal of the suit and the trial Court dismissed the suit for non-prosecution with no order as to costs.
6. The principal contentions raised by the learned Counsel for the appellant in this appeal is that the order passed by the trial Court is palpably unjustified and without jurisdiction and, therefore, the impugned order dated 10.3.1989 deserves to be set aside.
7. Per contra, Shri Khan, the learned Counsel for the respondents (original plaintiff) vehemently contended that the order passed by the trial Court is workable and has been passed on humanitarian grounds. The learned Counsel for the respondent-original plaintiff strenuously urged that the direction in the impugned order came to be issued with the agreement and consent of the defendants since the defendant felt that an adverse order may be passed against it for violation and deliberate disobedience of the ad-interim order passed by the said Court. The learned Counsel for the respondents thus contended that the impugned order is imminently just and proper and the appeal deserves to be dismissed.
8. I have considered the rival contentions and also perused the order dated 10.3.1989 impugned in the present appeal and the other relevant material available on the file of the appeal.
9. Upon perusal of the order I do not find that there was any agreement or concession on the part of the defendant to the directions issued in the order. It is true that the notice of motion No. 5005 of 1986 as well as Contempt Notice of Motion No. 3922 of 1987 were taken up together by the trial Court and it is also true that in reply to the Contempt Motion No. 3922 of 1987 while denying the allegation that the defendant has contravened or violated the ad-interim order passed by the Court, the defendant has tendered unconditional apology but it is clearly revealed from the order that it was the learned Counsel for the plaintiff who did not press the contempt motion after an unconditional apology was tendered by the defendants. No capital therefore can be drawn by the plaintiff from the fact that the defendant tendered unconditional apology in reply to the contempt motion and from that it also cannot be inferred that the defendant or the counsel for the defendant agreed to the directions given in the order. On the other hand, it is clearly demonstrated from the perusal of the order that the learned Counsel for the plaintiff prayed before the trial Court for withdrawal of the suit in view of the order passed on notice of motion No. 5005 of 1986 and accordingly the trial Court dismissed the suit for non-prosecution. It is very difficult to appreciate how such direction on notice of motion could have been granted by the trial Court when in the same order the plaintiffs suit has been dismissed to non-prosecution on the prayer being made by the learned Counsel for the plaintiff for the withdrawal of the suit.
10. It would be beneficial to reproduce the operative portion of the order passed by the trial Court on 10.3.1989 and the said order reads as under:
Contempt Motion No. 3922/1987 is dismissed as not pressed with no order as to costs.
In Notice of Motion No. 5005/86, the plaintiff shall prepare a plan of one structure in all admeasuring 83 sq. ft. and shall submit it to the defendant's concerned department for approval. The defendants shall approve that plan in the manner the usual repair permissions are granted. Upon such approval being received from the defendant, the plaintiff shall either demolish the present structure and re-construct another structure in conformity with the approved plan as aforesaid or so modify the present structure as to conform with the approved plan.
The plaintiff shall submit her proposal as aforesaid within two weeks from today. The defendants upon receipt of such proposal, shall dispose of the same expeditiously so as to enable the plaintiff to complete the reconstruction work well before the onset of the coming mansoon. Meanwhile the defendants shall not enforce the impugned notice. In the event of the plaintiff not submitting the plan/repair permission as aforesaid, within the specified time indicated above, the defendants shall be at liberty to enforce the impugned notice.
It is made clear that this order does not in any way improve either the position or the status of the plaintiff whatever it may otherwise be.
The Notice of Motion No.5005/1986 is thus disposed of with no order as to costs.
In view of the aforesaid orders, the Ld. advocate for the plaintiff withdraws the suit and the same is dismissed for non-prosecution with no order as to costs.
11. It need not be said that an interim or inter-locutary order is passed by a Court in the aid of the final order and any interim order passed by the Court comes to an end when the final order or decree is passed. Any order passed in the notice of motion cannot go behind the ultimate order that may be passed in a suit. It is really surprising that the trial Court issued the aforesaid directions in the order on notice of motion while finally the trial Court dismissed the suit for non-prosecution on the request being made by the plaintiff s counsel for withdrawal of the suit. Once the suit was dismissed for non-prosecution, obviously the order and the directions given on the notice of motion would not survive and could not have gone beyond after the suit was dismissed for non-prosecution. Even otherwise, the directions given by the trial Court in the notice of motion permitting the plaintiffs to prepare a plan of structure in all admeasuring 83 sq. ft. and submit the same to the defendants' concerned department for approval and the direction to the defendants to approve such plan in the manner usual repair permissions are granted and further direction that upon such approval being received from the defendant the plaintiff shall either demolish the present structure and re-construct another structure in conformity with the approved plan or so modify the present structure as to conform with the approved plan, is palpably without jurisdiction and cannot be said to be in accordance with law.
12. The net result of the aforesaid discussion is that the impugned order cannot be sustained. At this stage, the learned Counsel for the respondent Shri Khan submits that it was only because of the directions given in Notice of Motion No. 5005 of 1986, he did not press the contempt motion as well as prayed for the withdrawal of the suit and if the contention of the appellant (Original defendant) is accepted then the suit as well as notice of motion No. 5005 of 1986 and Contempt Motion No. 3922 of 1987 should be restored and reheard by the trial Court.
13. Mrs. Shah, the learned Counsel for the original plaintiff has no objection so far as the restoration and re-hearing of the suit and the notice of motion No. 5005 of 1986 is concerned but she submits that there is no jurisdiction for restoration and re-hearing of contempt Motion No. 3922 of 1987.
14. From the tenord of the order, I find that the plaintiff's counsel prayed for withdrawal of the suit only when he was satisfied by the directions given in the Notice of Motion No. 5005 of 1986 and since I am of the view that such directions could not have been given in the Notice of Motion No. 5005 of 1986, it would be in the interest of justice if the suit is restored and the notice of Motion No. 5005 of 1986 unheard. The trial Court should hear and decide the same in accordance with law. As regards the Contempt Notice of Motion No. 3922 of 1987 I find that the plaintiffs, counsel was satisfied with the unconditional apology tendered by the defendant and did not press the said motion and therefore it would not be in the fitness of things to restore the contempt Notice No. 3922 of 1987.
15. Consequently this appeal is partly allowed and the order dated 10.3.1989 passed the Judge, City Civil Court, Bombay, is set aside except the dismissal of Contempt Motion No. 3922 of 1987. The trial Court is now directed to hear and decide Notice of Motion No. 5005 of 1986 afresh and in accordance with law and also proceed with the suit in accordance with law uninfluenced by the present order as well as the order dated 10.3.1989.
16. It is made clear that till the disposal of the Notice of Motion by the trial Court the ad-interim order granted on notice of motion shall remain operative.
17. No order as to costs.
18. It is expected of the trial Court to hear and decide the notice of motion expeditiously. The parties are directed to appear before the trial Court on 8.7.1996.