Wednesday, 20 July 2016

When plaintiff can file fresh suit after rejection of plaint?

Considering the legal position therefore, regarding issuance and service of pre-suit statutory notices, and also Order 7 Rule 11(d) of Code of Civil Procedure, the plaint considering the averments and prayers therein, was liable to be rejected and no blame can be imputed to learned Judge, City Civil Court, Greater Bombay, in this regard. Although plaint is rejected, it is not end of the road for the plaintiffs, as they can lodge a fresh plaint after compliance of mandatory requirements according to law, by issuing and serving pre-suit statutory notices upon the Public Authorities impleaded as defendants in the present case. Under Order 7 Rule 13 it is open for the plaintiffs to present a fresh plaint in respect of the same cause of action. Order 7 Rule 13 reads as under:
Where rejection of plaint does not preclude presentation if fresh plaint -
The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
High Court Amendment - [Bombay] - In Order VII, for the existing Rule 13 and its marginal note, substitute the following as Rule 13 and marginal note:-
13. Where rejection of plaint does not preclude presentation of fresh plaint - The rejection of the plaint on any of the grounds hereinbefore mentioned or on the ground mentioned in Rule 14-A(5)(a) of Order VI shall not its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." (1-10-1983)
Equivalent Citation : 2014 (1)MhLj 92
IN THE HIGH COURT OF BOMBAY
First Appeal No. 302 of 2013 with First Appeal No. 303 of 2013 with Civil Application No. 1031 of 2013 in First Appeal No. 303 of 2013
Decided On: 25.10.2013
Appellants: Noor Mohd. Shami Shaikh and Anr.
Vs.
Respondent: Maharashtra Housing & Development Board and Ors.
Hon'ble Judges/Coram:A.P. Bhangale, J.



1. These appeals are directed against common order dated 6.2.2013 passed by learned City Civil Judge, Mumbai, in Chamber Summons No. 784 of 2011 and Chamber Summons No. 1317 of 2012 in L.C. Suit No. 2145 of 2009, whereby, learned Judge held that the plaint in L.C. Suit No. 2145 of 2009 is bound to be rejected under Order 11 Rule 7(d) of the Code of Civil Procedure on the ground that pre-suit statutory notices as mandatorily required under Section 527 of Mumbai Municipal Corporation Act, 1888, and as required under Section 164 of the Maharashtra Co-operative Societies Act, 1960, as required according to law, were not issued and served upon the Public Authorities namely Municipal Corporation of Greater Mumbai (MCGM) and Registrar of the Co-operative Societies. It appears that the plaint in the L.C. Suit No. 2145 of 2009 contained averments in respect of Development Control Regulations issued by the Planning Authority i.e. MCGM. According to plaintiffs, Maharashtra Housing and Area Development Authority (MHADA) is a body responsible for development of housing. According to plaintiff, defendant no. 2 MCGM is owner of plot of land bearing C.T. Survey No. 1589, Byculla Division, while M/s. NAN Developers Pvt. Ltd. (defendant no. 3) is a Developer and Builder, who undertook development work on the said plot of land. The plaintiff claimed possession of Room No. 16, "C" Block in Afzal Chawl, Opposite Maratha Mandir, Dr. A.B. Nair Road, Mumbai Central, Mumbai - 400 008. According to plaintiffs, tenants and occupants of Afzal Chawl situated on the City Survey No. 1589 of Byculla Division decided to go for redevelopment under the scheme formulated under Development Control Regulations, and therefore, association of the occupants in the chawl had called a General Body Meeting on 24.12.2001, to discuss the benefit of redevelopment. Defendant no. 3 was appointed as developer to pursue redevelopment work. Tenants and occupants of Afzal chawl consented in favour of defendant no. 3 and the consent was forwarded to MCGM and other authorities concerned for necessary approval and sanction. Plaintiffs and defendant no. 3 had entered into an agreement with the proposed Afzal Co-operative Housing Society under Agreement dated 27.9.2006, and agreed to complete the construction. To facilitate redevelopment, defendant no. 3 agreed to provide temporary transit accommodation of 110 to 120 sq. feet on the same plot or in the same area and agreed to bear all the expenses. Meeting was held in September 2006 between committee members and defendant no. 3 regarding the approval of redevelopment scheme and the plan to take benefit of Regulation 33(a) of the Development Control Rules. Defendant no. 3 agreed to provide larger area and more benefits to tenants/occupants of the chawl. The builder had agreed for compensation/rent to enable the plaintiffs to make arrangements for temporary transit accommodation. Thus, plaintiffs have agreed to participate in redevelopment of Afzal chawl through defendant no. 3 and also agreed to shift to the alternate transit accommodation as defendant no. 3 was to pay rent for transit accommodation before he could hand over permanent accommodation for the plaintiffs.
2. It is case of the plaintiffs that two buildings "A" and "B" Wings of ground plus seven storeys for rehabilitation were constructed, but occupation certificate was not obtained by defendant no. 3. Under these circumstances, tenants and occupants of Afzal chawl had forcibly taken possession of different rooms of their choice without following the procedure of lottery as agreed. Defendant no. 3 paid compensation towards rent for transit accommodation till 31.3.2009. Thus, according to plaintiffs, after entire development, plaintiffs were entitled to minimum area of 27.88 sq. mts. (300 sq. feet carpet) in the newly constructed building as permanent alternate accommodation in lieu of their old premises under Rule 4 of Appendix IIIA. According to plaintiffs, it was obligatory upon sanctioning authority to consider prevailing law so as to direct defendant no. 3 to construct rehabilitation components of required dimensions. But there was breach of statutory obligation on the part of MCGM, and therefore, plaintiffs are entitled for relief of declaration that they are entitled for all the benefits of redevelopment under Development Control Regulation 33(7) read along with Appendix III of Development Control Regulation. The plaintiffs also prayed for declaration that agreement dated 27.9.2006 is valid and subsisting and binding upon defendant no. 3 and that plaintiffs were entitled for accommodation in the newly constructed building in lieu of the old premises in their possession. They also prayed for injunction against defendant no. 3, not to create third party interest in respect of the premises to which plaintiffs are entitled. The plaintiffs in paragraph 25 averred that notice under Section 173 of MHADA Act is not required to be given on the ground that plaintiffs are seeking enforcement of statutory obligation against defendant no. 1. It is also averred that statutory notice as contemplated under Section 527 of MMC Act is not required to be given as the defendant no. 2 is sued in dual capacity as local body and Planning Authority which has not discharged its duty as local authority under MMC Act. Thus, according to plaintiff notice is deemed to have been waived. Further, according to plaintiffs, statutory notice contemplated under Section 164 of Maharashtra Co-operative Societies Act is also not required to be given. It is contended that such notice is deemed to have been waived by defendant no. 4 in the facts and circumstances of the case. With reference to this averments, following prayers were made:
a) That this Hon'ble Court be pleased to declare that the plaintiffs being the occupants of the old premises viz. Room No. 16, C-Block, Afzal Chawl, Opp. Maratha Mandir, Dr. Anandrao Naik Marg, Mumbai Central, Mumbai - 400 008 are entitled to all the benefits of redevelopment as set out under Development Control Regulation 33(9) along with the Appendix IIIA of D.C. Regulation;
b) In the alternative of prayer (a) above this Hon'ble Court be pleased to declare that the plaintiffs being the occupants are entitled to all the benefits of redevelopment as set out under Development Control Regulations 33(7) along with the Appendix III of the Development Control Regulations;
c) That it be declared by this Hon'ble Court that the agreement dated 27.9.2006 being Exhibit-B is valid and still subsisting and in force and binding upon the defendant no. 3;
d) It be declared that the plaintiffs are entitle to an accommodation in the newly constructed building facing Dr. Anandrao Naik Road in lieu of the plaintiffs handed over the possession of the old premises viz. Room No. 16, C-Block, Afzal Chawl, Opp. Maratha Mandir, Dr. Anandrao Naik Marg, Mumbai Central, Mumbai - 400 008 to the defendant no. 3 and as per the agreement dated 27.9.2006 being Exhibit-B;
e-1) it be declared that the defendant no. 4 has forcibly and illegally taken the possession of permanent alternate accommodation being Flat No. 206 situated on the 2nd floor of C-Wing, Afzal Cooperative Housing Society Limited, Mumbai Central, Mumbai - 400 008;
e-2) this Hon'ble Court be pleased to pass mandatory order and direction interalia directing the defendant no. 4 to quit, vacate and handover the peaceful possession of the Flat No. 206 situated on the 2nd floor of C-Wing, Afzal Co-operative Housing Society Limited, Mumbai Central, Mumbai-400 008 to the plaintiffs;
f) That pending the hearing and final disposal of the suit the defendants their servants, agents and persons claiming through or under them be restrained by an order and injunction of this Hon'ble Court from parting with possession of and/or creating any third party interest in respect of the permanent alternate accommodation to which the plaintiffs are entitle in lieu of old premises viz. Room No. 16, C-Block, Afzal chawl, Opp. Maratha Mandir, Dr. Anandrao Nail Marg, Mumbai Central, Mumbai - 400 008;
g) That pending the hearing and final disposal of the suit the defendant no. 3 their servants, agents and persons claiming through or under them be restrained by an order and injunction of this Hon'ble court from creating third party rights in any of the premises constructed or to be constructed for sale component till plaintiffs are placed in possession of permanent alternate accommodation as per the terms and conditions of the agreement and the assurances and the undertakings given to the plaintiffs as set out in the declaration dated 15th September, 2006 being Exhibit-C;
h) that pending the hearing and final disposal of the suit the defendants be directed to pay the compensation for temporary alternate accommodation for the period of April, 2009 till the handing over the permanent alternate accommodation in lieu of old premises viz. Room No. 16, C-Block, Afzal chawl, Opp. Maratha Mandir, Dr. Anandrao Naik Marg, Mumbai Central, Mumbai - 400 008;
3. Heard submissions at the bar. Learned advocate for the appellant criticizing the impugned order submitted that learned City Civil Judge erred to held that pre-suit statutory notices under Section 527 of MMC Act and under Section 164 of Maharashtra Co-operative Societies Act were necessary before institution of the suit. According to Mr. Mooman, learned counsel for the appellant, no such statutory notices were required to be issued and served, as the plaintiffs were intending to enforce statutory obligations on the part of MMC and on the part of Co-operative Society (defendant no. 5). Learned counsel Mr. Mooman argued that there is a deemed waiver of such notices even if it is held that notices are required mandatorily according to law. He argued that when written statement was tendered by defendant MCGM, trial court ought to have decided the suit on the basis of all the issues raised by pleadings of the parties.
4. On behalf of MMC, learned advocate argued that pre-suit statutory notice as required under Section 527 of MMC Act, 1888, is mandatory and the waiver was out of question when preliminary issue as to the legal bar for institution of the suit was raised by Chamber summons taken out on behalf of the MMC. She supported the impugned judgment and order. While according to learned advocate Mr. Naidu, pre-suit statutory notices, as required under Section 527 of the Corporation Act, 1888, and as required under Section 164 of the Maharashtra Co-operative Societies Act, 1960, were mandatory and there was no urgency of any kind to institute suit without issuance and service of such notices.
5. Section 9 of Code of Civil procedure is as follows:
9. Courts to try all civil suits unless barred -
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II - For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
6. I have considered the submissions as also citations sought to be relied upon by learned advocates in support of their rival submissions. This court while deciding First Appeal No. 572 of 2013 in Akash Impex v/s. Municipal Corporation of Greater Mumbai, made reference to judicial precedents on the subject and discussed legal position to hold that when pre-suit statutory notice is required to be issued and served mandatorily, no civil suit can be instituted unless there is exceptional urgency, which may be excusable, particularly in cases of quia timet injunction when suit if filed against Municipal Corporation for an injunction or to prevent it from doing an act which is threatened but not done.
7. Pre-suit statutory notice as required under Section 527 of MMC Act, as also under Section 164 of MCS Act, 1960, required to be addressed to the Registrar before initiating suit clearly served public purpose underlying the mandatory provisions. When such notices are issued and served upon public authorities, they get reasonable opportunity to avoid unnecessary litigation and also to avoid unnecessary expenses which may have to be spent in a long drawn out legal battle. When language of the provision is clear and unambiguous, it is duty of the court to give effect to mandatory legal provisions. Therefore, in such cases, equitable consideration of hardship is not considered as a legitimate ground for not faithfully implementing the mandate of legislature. The principle of waiver expressed or implied as such is not an exception to Section 527 of MMC Act, but as held in Full Bench ruling of Vasant Ambadas Pandit vs. Bombay Municipal Corporation & Others, the issue as to "whether there is such waiver" is to be tried by the civil court.
8. In the case in hand, since Municipal Corporation of Greater Mumbai itself had objected institution of the suit, as also other defendant, objection was also raised under Section 164 of the MCS Act, 1960, there was no question to infer waiver or to try question of waiver. Under Section 23 of the Indian Contract Act, once it is observed that waiver of pre-suit statutory notice is contrary to law, it may be noted that the statutory requirement of notice cannot be waived by contract, as it would be opposed to public policy of law to waive pre-suit statutory notice mandatorily required according to law, because any agreement for something prohibited by law, is an offending public policy. An agreement which contravenes prohibition against the institution of the suit of the offending provision under Section 23 of the Indian Contract Act, particularly because, object of pre-suit statutory notice is to furnish an opportunity to the Public Authority to know before hand about the prospective plaintiff, particulars of his name, address, grievance, cause of action etc., so that Public Authority can reconsider its legal position and may resolve to take steps to settle the claim at pre-litigation stage. The provision is therefore intended to save the valuable public time and money.
9. Under these circumstances, the mandate of law contained in Section 527 of MMC Act against institution of suit requires obedience by prospective plaintiffs as prospective plaintiffs can also save time and money of a Public Authority resolved to settle the claim at pre-litigation stage. When language used in the statute is clear and unambiguous it is duty of the court to give effect to it and considerations of hardship will not be a legitimate ground for not to implement the mandate faithfully as intended by legislature. The provision under Section 527 of MMC Act as also under Section 164 of MCS Act do serve public purpose. Therefore, in view of the ruling in Harkishan Lal vs. State of Jammu & Kashmir reported in MANU/SC/0728/1994 : (1994) 4 SCC page 422, requirement which serves public purpose, cannot be waived. Except in case of urgency it may be excusable in a rare case, when plaintiff is required to be protected against threatened action of demolition of his house or shop as the case may be.
10. Considering the legal position therefore, regarding issuance and service of pre-suit statutory notices, and also Order 7 Rule 11(d) of Code of Civil Procedure, the plaint considering the averments and prayers therein, was liable to be rejected and no blame can be imputed to learned Judge, City Civil Court, Greater Bombay, in this regard. Although plaint is rejected, it is not end of the road for the plaintiffs, as they can lodge a fresh plaint after compliance of mandatory requirements according to law, by issuing and serving pre-suit statutory notices upon the Public Authorities impleaded as defendants in the present case. Under Order 7 Rule 13 it is open for the plaintiffs to present a fresh plaint in respect of the same cause of action. Order 7 Rule 13 reads as under:
Where rejection of plaint does not preclude presentation if fresh plaint -
The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
High Court Amendment - [Bombay] - In Order VII, for the existing Rule 13 and its marginal note, substitute the following as Rule 13 and marginal note:-
13. Where rejection of plaint does not preclude presentation of fresh plaint - The rejection of the plaint on any of the grounds hereinbefore mentioned or on the ground mentioned in Rule 14-A(5)(a) of Order VI shall not its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." (1-10-1983)
11. For the aforesaid reasons therefore, I do not find merit in the appeals.
12. Appeals are dismissed.
13. Learned counsel for the appellant stated that there was statement by learned advocate for respondent no. 4 that he would not withdraw the amount deposited in the trial court, though trial court has granted permission to withdraw the amount lying and deposited in the trial court.
14. Learned advocate for respondent no. 4 strongly objected to continue the statement as it is open for the appellant/plaintiff to file fresh suit. He is not ready to continue the statement any further as the appeal is decided.
15. The prayer of continuation of the statement made by learned advocate for respondent no. 4 on behalf of respondent no. 4 cannot continue and is rejected. Civil Application No. 1031 of 2013 stands disposed of.

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