Whether Civil Suit Claiming Reliefs Beyond Scope Of The MHADA Act Which Bars Jurisdiction of Civil court Is Maintainable?

The preamble to the Act states that it is an Act to "unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas". The scheme of the statute provides that the Board constituted under the statute would have the power to repair and reconstruct dilapidated buildings, conduct structural repairs and evict persons from authority premises, among others. The objective of the bodies and authorities constituted under the Act is to ensure repairing and reconstructing buildings to provide housing. Undoubtedly, the competent authority has the jurisdiction to order eviction in terms of the provisions of Section 66. But that is not the frame of the suit or the relief which has been claimed by the Appellant in the suit. The reliefs sought by the Appellant in the plaint are: (i) the removal of the unauthorized construction; (ii) a permanent prohibitory injunction restraining the Defendants from constructing over the open site and causing 'nuisance'; and (iii) restoration of the water connection as it was prior to the construction. The Appellant instituted the suit for injunction because her easements were infringed by the illegal construction which the first Respondent had erected on the open space. The reliefs claimed by the Appellant are beyond the scope of the Act. A suit of this nature will be maintainable before the civil court and would not be barred by Section 71 or Section 177 of the Act.

{Para 16}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5216 of 2022

Decided On: 08.08.2022

 Rajani  Vs.  Smita and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and A.S. Bopanna, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/1021/2022

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Whether filing of civil suit for defamation amounts to violation of freedom of speech and expression?

In my view there is merit in the plea of the plaintiff's counsel. Article 19(2) is a negative covenant i.e., a bar on the restrictions imposable upon the otherwise unfettered right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution. There is no requirement or restriction in Article 19(2) that unless and until permitted by Article 19(2), no suits for defamation can be filed, as contended and in my view erroneously by the learned senior counsel for the defendant,Shri Tripathi. To accept Mr. Tripathi's plea would tantamount to rewording the Constitution. A plain reading of the Constitution makes it clear that at present there is no fetter/bar on filing of suits based on defamation and therefore the plea of theefendant under Order VII Rule 11 that the suit is barred by any law i.e., Article 19 as the Parliament has not enacted any law permitting suits for defamation is not tenable and is accordingly rejected. There is also substance in the plea of the plaitiff's counsel that Section 9 of the CPC permits the trial of all civil suits unless expressly or impliedly barred. Admittedly there is no express bar against suits for defamation. The plea of the implied bar under Section 9 by virtue of the non-enactent of a statute under Article 19(2) permitting defamation suits has already been rejected. Consequently the suit is also maintainable under Section 9 CPC.

 Delhi High Court

Ashoke Ghosh vs Urmi A. Goswami on 7 January, 2005

Bench: M Mudgal

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Whether civil court can decide issue of eligible slum dweller as per Maharashtra Slum Areas Act?

The perusal of the plaint would also reveal that the entire tenor of the case of the Plaintiff is that after the death of Anandibai, it is the Plaintiff and Defendant No. 1, who were jointly entitled to the benefits of the hutment which was occupied by their mother Anandibai. It can thus be seen that the basic prayer of the Plaintiff is for a declaration that he along with the Defendant No. 1 is entitled to the rights flowing from the said hutment. By now, it is the settled position of law that the averments in the plaint cannot be read in isolation and for finding out what is the main relief claimed in the plaint, the plaint has to be read as a whole. The perusal of the plaint would reveal that the basic claim of the Plaintiff is on the basis of being the legal heir of Anandibai who was the original occupant of the suit hut. As such, it would be clear that the main claim in the plaint is against the Defendant No. 1, contending that the Plaintiff and the Defendant No. 1 are entitled to the joint use of the rights flowing from the said hut being legal heirs of the deceased Anandibai.

11. Perusal of the provisions of the said Act referred to hereinabove would reveal that by no stretch of imagination a dispute of nature which is sought to be raised in the plaint can be gone into by the Competent Authority, Appellate Court or Grievance Redressal Committee. In any case, the issue as to rights flowing to the Plaintiff and Defendant as legal heirs of Anandibai could be within the exclusive jurisdiction of the Civil Court and not any other forum.

12. In this regard, it will be relevant to refer to para nos. 12,13 and 14 of the Apex Court, in the case of Rajasthan State Road Transport Corporation and Anr. v/s. Bal Mukund Bairwa reported in MANU/SC/0181/2009 : (2009) 4 SCC 299.

12. Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless barred by statute, either expressly or by necessary implication.

13. The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact.

14. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction.

13. It can thus be clearly seen that the Apex Court in clear terms has held that a litigant having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. It has been further held that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. It has been further held that a person taking a plea contra must establish the same.

14. In the present case, as has been discussed herein-above, the dispute interse between the two claimants claiming to be legal heirs of deceased Anandibai, by no stretch of imagination, falls within the scope of powers of the Competent Authority or the Appellate Authority or Grievance Redressal Committee, which falls under Sections 35 and 42 of the said Act.

15. In that view of the matter, the learned Judge has erred in rejecting the plaint.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 137 of 2012

Decided On: 09.04.2013

 Ashok B. Nigudkar Vs.  Sudhadra P. Nirgudkar and Ors.

Hon'ble Judges/Coram:

B.R. Gavai, J.

Citation:2013(4) ALLMR 753

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Supreme Court Judgment reiterating Constitution bench judgment on jurisdiction of civil court

 It has not been disputed that there is no express bar

under the Act on the jurisdiction of the civil court to entertain a

suit for damages. As set out above, all we need to determine is

whether the jurisdiction of the civil court is barred by necessary

implication. The principles laid down in Dhulabhai (supra) are

pertinent in this regard. While dealing with the question of

ouster of the jurisdiction of the civil court by specially

constituted tribunals, this Court concluded that such ouster was

not to be readily inferred unless the conditions set out by the

Court were satisfied. For the purposes of determining the

question before us, we need only refer to the following

conditions laid down by this Court in Dhulabhai (supra):

“… (1) Where the statute gives a finality to the

orders of the special Tribunals the civil courts’

jurisdiction must be held to be excluded if there is

adequate remedy to do what the civil courts would

normally do in a suit. Such provision, however, does

not exclude those cases where the provisions of the

particular Act have not been complied with or the

statutory Tribunal has not acted in conformity with

the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction

of the court, an examination of the scheme of the

particular Act to find the adequacy or the sufficiency

of the remedies provided may be relevant but is not

decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the

examination of the remedies and the scheme of the

particular Act to find out the intendment becomes

necessary and the result of the inquiry may be

decisive. In the latter case it is necessary to see if the

statute creates a special right or a liability and

provides for the determination of the right or liability

and further lays down that all questions about the

said right and liability shall be determined by the

Tribunals so constituted, and whether remedies

normally associated with actions in civil courts are

prescribed by the said statute or not.

x x x

(7) An exclusion of the jurisdiction of the civil court is

not readily to be inferred unless the conditions above

set down apply.”

(emphasis added)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8069 OF 2019

M. Hariharasudhan Vs  R. Karmegam 

MOHAN M. SHANTANAGOUDAR, J.

Dated:October 17, 2019.

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Leading Supreme Court Judgment on jurisdiction of civil court in relation to Industrial dispute

To sum up. the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created Under the Act. then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute. as the case may be.

24. We may, however, in relation to principle 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the, type of cases falling under principle 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle 3 stated above.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2317 of 1972 and 922 of 1973

Decided On: 26.08.1975

The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Ors.

Hon'ble Judges/Coram:

A. Alagiriswami, N.L. Untwalia and P.K. Goswami, JJ.

Citation: AIR 1975 SC 2238

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When it is not permissible to take issue of jurisdiction in revision?

Jurisdiction of the court being questioned is a plea being taken in revision for the first time. It does not appear that such objection had been taken while the suit had been defended. No issue on that ground had been framed. Nor does it appear that this contention had ever been urged before the appellate court. It is not a case wherein it can be said that the court which had dealt with the proceedings, had no jurisdiction to try suits pursuant to section 33 of Maharashtra Rent Control Act, 1999 or Section 9 of the Civil Procedure Code or for that matter section 5 of the Specific Relief Act.

39. So far as jurisdiction of court is concerned, it appears that the situation is no longer res integra and appears to be amply covered by the Supreme Court judgment in the case of "Babulal Bhuramal" (supra) relied upon on behalf of the respondent.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 113 of 2016

Decided On: 23.03.2017

Shila Ramchandra Sachdeva Vs. Vinod Harchamal Santani

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Whether order of Mamlatdar court can be challenged before civil court?

 I have gone through the provision of Section 5 of the
Mamlatdars' Courts Act.   The proviso below sub­section (1) of
Section 5 of the said Act empowers the Mamlatdar to refuse to
exercise the power under the said provision if it appears to him
that such a case can be more suitably dealt with by the Civil
Court.  Though there is a revision provided under Section 23 of
the said Act to challenge the order passed by the Mamlatdar

under Section 5, the Act nowhere attaches finality either to the
order passed under Section 5 by the Mamlatdar on merits or to
the order passed in revision under Section 23 of the said Act.  In
the absence of such finality being attached to the order passed
under the Act, the jurisdiction of the Civil Court cannot be held
to   be   impliedly   barred   merely   because   the   Act   provides   a
separate   machinery  for   getting   the   grievance   redressed.     The
ouster of the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available to
be exercised either against the order under Section 5 or against
the order of revision under Section 23 of the said Act.  
8. The learned counsels appearing for the parties could not
bring   to   my   notice   any     express   provision   creating   bar   of
jurisdiction of the Civil Court to entertain, try and decide the suit
challenging either the order passed under Section 5 or under
Section 23 of the Mamlatdars' Courts Act.  In a given case, a Civil
Court may refuse to grant relief on the ground that the remedy of
revision under Section 23 of the said Act is not exhausted, but

that is not the mandate which the Civil Court is required to
observe.  The lower Appellate Court has, in terms, recorded the
finding that when the order passed by the Mamlatdar is without
following the procedure, it cannot come in the way of the Civil
Court to decide the substantive rights of the parties. The view
taken cannot be faulted with.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.386 of 2003
Mohommad Khan s/o Rahim Khan,
V
 Shri Shankar s/o Maroti Dhage,

Coram : R.K. Deshpande, J.

Dated :   8­-3-­2017
Citation: 2017(3) ALLMR380

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Whether civil court has jurisdiction to try suit where finality is given to order of special tribunal?

 Under Section 27 of the Act save as otherwise expressly provided in the Act every order made by any officer or authority under the Act, including a managing corporation, shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. The jurisdiction of the Civil Court was therefore barred in the matter of the sale. It is true that where the special tribunal or authority acts ultra vires or illegally, the Civil Court has by virtue of Section 9 of the Civil Procedure Code power to interfere and set matters right. As was laid down by the Judicial Committee of the Privy Council in Secretary of State v. Mask and Co. MANU/PR/0022/1940, if the provisions of the Statute have not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Courts have jurisdiction to examine those cases. This rule was reiterated by the Supreme Court in State of Kerala v. N. Ramaswami Iyer and Sons AIR 1966 SC 1938.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4718 of 1990

Decided On: 21.09.1990

Gurbax Singh S/o Chanda Singh

Vs.

 The Financial Commissioner and another

Hon'ble Judges/Coram:

S. Ranganathan and K.N. Saikia, JJ.

Citation: 1991 Supp.(1) SCC 167

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Burden of proof to show that jurisdiction is excluded in any particular case is on party raising such contention

 In order to consider the question as to whether the jurisdiction

of the Civil Court to entertain, try and decide the suit for partition and
separate possession of the suit property, the provisions of Section 9 of
the Civil Procedure Code will have to be seen. Section 9 of the Code of
Civil Procedure deals with the Courts to try all civil suits unless barred. It
states that the Courts (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. There is a strong
presumption that Civil Courts have jurisdiction to decide all questions of
civil nature. The rule that the exclusion of jurisdiction of Civil Courts is
not to be readily inferred, is based on the theory that Civil Courts are the
Courts of general jurisdiction and the people have a right, unless
expressly or impliedly debarred, to insist for free access to the Courts ofgeneral jurisdiction of the State. As a necessary corollary of this rule,
provisions excluding jurisdiction of Civil Courts and provisions conferring
jurisdiction on authorities and Tribunals other than Civil Courts are
required to be strictly construed. The extent of exclusion will largely
depend upon construction of the provision enacted for that purpose.
When, with the object of speedy adjudication of certain matters, which
are widely defined, the jurisdiction of the normal Courts in respect of such
defined matters is excluded. The existence of jurisdiction in Civil Courts
to decide the questions of civil nature being the general rule and
exclusion being an exception, the burden of proof to show that
jurisdiction is excluded in any particular case is on the party raising such
a contention.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
 NAGPUR BENCH, NAGPUR
Civil Revision Application No.33 of 2010
And
Appeal against Order No.38 of 2010

State Bank of India Vs  Shri Sagar Pramod Deshmukh,

CORAM : R.K. Deshpande, J.

Date of Pronouncing the Judgment : 11-2-2011
Citation:2011(3) MHLJ71

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Whether civil suit is tenable when jurisdiction of civil court is expressly barred?

The scope of the exclusionary clauses contained in the statutes has been considered in great detail with reference to the decisions of the superior courts in England and also the decisions of the Supreme Court of India by Justice G.P. Singh (former Chief Justice, M.P. High Court) in "Principles of Statutory Interpretation", 6th edition (1996) at page 475. The law is stated thus:

A review of the relevant authorities on the point leads to the following conclusions:

(1) An Exclusionary Clause using the formula 'an order of the tribunal under this Act shall not be called in question in any Court' is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity.

(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the subject-matter or the parties are such over which the tribunal has no authority to inquire; and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry.

(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry, These cases are also cases of want of jurisdiction if the word 'jurisdiction' is understood in a wide sense. Some examples of these cases are (a) when the tribunal has wrongly determined a jurisdictional question of fact or law; (b) when it has failed to follow the fundamental principles of judicial procedure, e.g. has passed the order without giving an opportunity of hearing to the party affected; (c) when it has violated the fundamental provisions of the Act, e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters; (d) when it has acted in bad faith; and (e) when it grants a relief or makes an order which it has no authority to grant or make; "as also (f) when by misapplication of the law it has asked itself the wrong question.

With great respect to the learned author, I would adopt the above statement of law, as my own.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2243, 1947, 2071, 2172, 2242, 2255, 2278, 2576 of 2013,

 Mr. Yogesh Megaji Gada Vs.  The Municipal Corporation of Greater Mumbai & Ors. etc. etc.

Hon'ble Judges/Coram:

N.M. Jamdar, J.

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