Document Fragment View

Matching Fragments

"(a) This Hon'ble Court may be pleased to declare that the plaintiffs are jointly entitled to the permanent alternate accommodation viz. Room No. B-302, 3rd Floor, Building No. 4, Ganesh Nagar, Mumbai - 400 012, granted in lieu of the said premises viz. Room No. 25, New Municipal Chawl No. 47-k, Ganesh Nagar, Mumbai - 400 012, along with Defendants Nos. 4 to 6."

Prayer Clause (b) has been deleted and prayer Clause (c) is the interim relief which is claimed during the pendency of the suit. In para 13, it is stated that the subject matter of the present suit was not susceptible to the monetary valuation and 5 they, therefore, valued the said claim at Rs. 1000/-.

6. The learned counsel appearing on behalf of defendant No. 1-respondent No. 1 herein, vehemently opposed the submissions made on behalf of the plaintiffs-appellants. He submitted that from the perusal of the prayer clause itself it was very clear that the plaintiffs were seeking possession of the permanent alternative accommodation in the newly constructed building. It was submitted that in the plaint itself an averment was made to the effect that the said room was allotted to defendant No. 4 behind the back of the plaintiffs and in collusion with other defendants. He submitted that, therefore, the suit, in effect, was a suit for declaration of possession. He, therefore, submitted that the provisions of Section 6(iv)(j) would be squarely applicable in the present case and, therefore, the City Civil Court would not have jurisdiction to decide the said suit as the valuation of the said flat would be mare than Rs. 50,000/-. The learned counsel relied upon the judgment in the case of Ratilal Manilal v. Chandulal Chhotalal reported in [1946] XLIX BLR 552. He submitted that the Division Bench of this Court has observed that the said Section 7(v) of the Court Fees Acts which is equivalent to Section 6(iv)(c) of the present Act, contemplates that the subject matter of a suit for the possession of land as being the land and the subject matter of a suit for the possession of a garden as being the garden and the subject matter of a suit for the possession of a house as being the house, and that no different interpretation would be given once the relief claimed was seeking possession of the said house. He relied on the observations made by the Division Bench wherein Division Bench has observed that the provision was a harsh provision, however, that being the law, there is no escape from it and the law could be changed only by way of amendment. He submitted that, in the present case also, in effect, what the plaintiff was seeking was joint possession of the said flat and, therefore, the case squarely falls under the provisions of Section 6(iv)(d). The learned Counsel further relied upon the judgment of the Full Bench of this Court in the case of Prem Ratan Vohra v. Lalitkumar Dayalji Lakhani in which the Full Bench was called upon to decide two questions of law regarding the determination of the market value of the suit for the purposes of jurisdiction of the Court and the basis on which the said valuation was to be made. He submitted that the ratio of the said judgment was squarely applicable to this case. He submitted that in para 11, the Full Bench had observed as under.

12. In the present case, the plaintiffs have filed a suit in which they have stated that they have right in respect of Room No. 302 which has been allotted to defendant No. 4 by virtue of Rehabilitation Scheme which is framed under the provisions of the Rehabilitation Act. The Rehabilitation Scheme prescribes that a tenant or occupant of the premises would have a right of being accommodated in a new building which would be constructed by the Builder who is authorized to develop a slum according to the guidelines which are laid down for the implementation of the reconstruction/redevelopment schemes under the Regulation No. 33(7) of the Development Control Regulations for Greater Bombay, 1991. These guidelines, therefore, have a statutory force and certain rights are created in favour of the occupants/tenants who are residing in the said slum or area which is to be redeveloped. The said Scheme has laid down various eligibility criteria as also the manner in which a Co-operative Society is to be formed, procedure for raising of loan, the prerequisites of construction, proposal etc. The Slum Rehabilitation Act also has been amended and, as a result, rights of certain occupants are also protected. In the present case, if the plaint is read as a whole, it would appear that the plaintiffs are, in fact, seeking a right which stems from the said Scheme. It is the plaintiffs case that they were in occupation of the old structure since 1957 and in para 12 of the plaint, they state that the defendants had threatened to dispossess them from the premises on 9/9/2003. In para 6 of the plaint, it is averred by the plaintiffs that they were jointly entitled to permanent alternative accommodation which was granted in lieu of the old premises. In para 5A of the plaint, they have alleged that the defendant No. 4, in collusion with the other defendants, succeeded in getting the allotment of Room No. 302 in his favour and to the exclusion of the plaintiffs. It is no doubt true that it is not specifically averred in the plaint that the Plaintiffs are seeking to enforce the obligations which are created by the Rehabilitation Scheme. However, the fact remains that in para 4 of the plaint, they have made reference to the Rehabilitation Scheme. They have mentioned in para 5 that they were in possession of the old premises for more than 45 years and that they were jointly entitled to the permanent alternative accommodation. In my view, therefore, the prayer which is aside in the plaint cannot be read in isolation and has to be read in the context of the case which is tried to be made out in the plaint. In my view, therefore, the subject matter of the suit is not susceptible to the monetary valuation as it pertains to the rights which the plaintiffs are seeking and which flow out of the statutory obligations which are created in favour of the occupants of a slum under the Slum Rehabilitation Act as also the Scheme which is framed under Rule 33(7) of the Development Control Rules. The submission made by the learned counsel appearing on behalf of the defendants-respondents, therefore, cannot be accepted. In my view, the Trial Court also has not taken into consideration the averments in the plaint in its entirety and has considered it in a piecemeal manner. There cannot be any doubt regarding the ratio laid down in the various judgments which are relied upon by the learned counsel appearing on behalf of the defendants-respondents. However, in my view, the ratio of the said judgments would not be applicable to the facts of the present case. So far as the Judgment is concerned, reference which was made to the Full Bench was regarding the manner in which the market value of the suit property was to be arrived at for the purpose of jurisdiction of the Court and whether the valuation should be on the basis of Valuer's Report or on the basis of compensation or rent which is charged to the occupant. In the light of the aforesaid controversy, the Full Bench has made various observations in paras 8, 9 and 10 and, finally, in para 11, the Full Bench has given its answer to the two questions in the following manner. Para 11 of the said judgment reads as follows:

13. In the present case, obviously, the relief which is substantively asked for is that the plaintiff is jointly entitled for being allotted a permanent alternative accommodation.

14. The learned Counsel appearing on behalf of the plaintiffs-appellants has relied upon the two judgments reported in 1982 Mh.L.J. 607 [Virndavan (Borivali) Co-operative Housing Society Limited v. Karmakar Bros. and Ors.] and in [ Maria Philomina Pereira v. Rodrigues Construction]. In the case of Virndavan (Borivali) Co-op. Housing Society Limited (supra), the facts were that the appellant in the said case was a registered Co-operative Housing Society Limited which was formed on 4/3/1978 and respondent Nos. 2 to 10, in the said case, were flat owners who had taken flats under the agreement from respondent No. 1. A suit was filed by the Society for a declaration that the Plaintiff-Society is a Co-operative Society and for a mandatory injunction against defendant Nos. 2 to 10 to become members of the Society and for a declaration that the members of the plaintiff-Society have paid the entire amount of their purchase price to defendant No. 1 and that defendant No. 1 was liable to execute deed or conveyance in favour of the plaintiff. This Court, after taking into consideration the averments in the plaint, observed that the case squarely fell within the provisions of Section 6(iv)(j) as it related to the performance of the obligation. In para 21 of the said Judgment this Court has observed as under:-