Bombay HC: Special court or civil court has no power to order restoration of electric supply at interim stage if prosecution is initiated under S 135 of Electricity Act

It is thus clear that this section nowhere provides a power in the Court to grant any interim relief. Only option for a person under Section 135 of the said Act to deposit the entire amount. If the entire amount is deposited, it is only then that the connection can be restored, and it is only thereafter the provisions of Section 154(5) can be invoked.{Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

914 CRIMINAL WRIT PETITION NO. 814 OF 2025

The Superintending Engineer, Maharashtra State Electricity Distribution Com. Ltd. Ahmednagar And Others Vs Rajendra Tukaram Avhad

CORAM : KISHORE C. SANT, J.

DATE : 14th AUGUST 2025.

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What is difference in procedure for trial of civil suit before civil court and commercial courts?

 In India, the procedures for trial of civil suits before a regular civil court and those under the Commercial Courts Act, 2015, are distinct. The differences are mainly due to the nature of the disputes they handle and the procedural requirements aimed at expediting commercial litigation. Here’s a detailed comparison:

Civil Court Procedures (under the Code of Civil Procedure, 1908):

1. Nature of Disputes:

   • Civil courts handle a wide array of civil disputes, including property disputes, family matters, contract disputes, tort claims, etc.

2. Pleadings:

   • The plaint and written statement are filed with general requirements. There is some flexibility regarding amendments to pleadings.

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Bombay HC: Civil Court Order To Prevail Over Findings Recorded By Authorities Under Maharashtra Money-Lending (Regulation) Act

  In the present case, cognizance is taken by theDistrict Registrar (Money Lending) of a complaint filed by Respondent No. 5. Whether Respondent No. 5 could have filed such a complaint is the moot question. He had already invoked jurisdiction of Civil Court seeking adjudication of the nature of transaction and his Suit was pending. Firstly, he therefore could not have simultaneously invoked jurisdiction of District Registrar (Money Lending) under the Act of 2014 for same cause of action. He did so by suppressing filing of Civil Suit, which fact was brought on record by Petitioner. In my opinion therefore the District Registrar (Money Lending) could not have entertained the complaint of Respondent No. 5 once his attention was invited to pendency of Civil Suit arising out of same cause of action. Secondly and more importantly, by the time the proceedings came up for final decision before the District Registrar (Money Lending), the Civil Suit was decided holding that the transaction was that of sale. Therefore the District Registrar (Money Lending)could not have assumed the transaction as that of mortgage. Unless District Registrar (Money Lending) comes to a conclusion that the property came in possession of a moneylender by way of security for loan, he cannot exercise power of restoration of property under Section 18(2). One the transaction was declared as a sale by the Civil Court, District Registrar (Money Lending)could not have exercised jurisdiction under Section 18 of the Act of 2014. This is because unless transaction is treated as a mortgage and unless a satisfaction is recorded that property was offered as a security towards loan, District Registrar (Money Lending)cannot undertake proceedings for restoration. In my view therefore, the order passed by the District Registrar (Money Lending) is wholly without jurisdiction. {Para 20}

34. Since the Civil Court has already determined the nature of the transaction, the order passed by the Civil Court would prevail over the findings recorded by the authorities exercising powers under the Act of 2014. The said authorities may come to an independent conclusion as to whether the petitioner is engaged in the business of money lending or not. However, once the nature of the document is determined by the Civil Court and the same is held to a transaction of absolute sale, it is no longer open for such authorities to record a contradictory opinion to the effect that the transaction was a

mortgage and the land was offered by way of security. The orders passed by the authorities exercising powers under the Act of 2014 must therefore yield to the judgment and order delivered by the Civil Court. Consequently, the orders passed by those authorities are rendered illegal and deserve to be set aside. Even though, the orders passed by the authorities exercising powers under the Act of 2014 are being set aside, respondent no.5 is not entirely remediless. As observed hereinabove, he has already filed an Appeal in the District Court challenging the judgment and order dated 30.10.2015 passed in Special Civil Suit No.20/2012. He will be entitled to pursue the said remedy. In the event, respondent no.5 succeeds in the appeal and the transaction is held to mortgage by way of conditional sale, he would obviously be entitled to the relief of reconveyance of the land in his favour. All questions in that regard are left open. It is specifically clarified that, I have not gone into the merits of issue as to the nature of transaction in question and the District Court would be free to arrive at its own conclusion without being influenced, in any manner, by any of the observations made in the present order.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

 J WRIT PETITION NO.6581 OF 2022;

Bhanudas @ Suryabhan Vs State of Maharashtra

Coram:  SANDEEP V. MARNE

Dated:15.11.2022 

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Can the court permit the conversion of Criminal Proceedings instituted under the DV Act as Civil Proceedings for its transfer to civil court or Family court?

 

 Conjoint reading of Section 44 of the Indian Penal Code and

Section 3 of the Domestic Violence Act portrays the nature of injuries for initiation of proceedings under the Domestic Violence Act. Undoubtedly, all such bodily injuries are serious in nature and affecting the fundamental rights of women. Thus, initiation of proceedings under the DomesticViolence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate. The word “injury” is defined in Section 44 of the Indian Penal Code as the word “injury” denotes 'any harm whatsoever illegally caused to any person, in body, mind, reputation or property'. {Para 57}

58. Thus, the injuries enumerated under the provisions of the

Domestic Violence Act are bodily injuries, which all are offences as contemplated under the Penal laws. Thus, all such offences / bodily injuries as contemplated under the Domestic Violence Act are against the society at large and therefore, the proceedings are criminal proceedings and the competent criminal Court of Law is empowered to try those cases. Section 28 of the Domestic Violence Act states that the proceedings are to be regulated under the Criminal Procedure Code. Thus, such criminal

proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Tr.C.M.P SR No.15785 of 2021

in

D.V.C.No.43 of 2019

P.Arun Prakash Vs  S.Sudhamary 

CORAM

 MR. JUSTICE S.M.SUBRAMANIAM

DATED : 01-04-2021

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Whether family court has jurisdiction to try suit filed by mother in law against daughter in law?

I respectfully agree with the Division Bench of the Kerala High Court and the view aforesaid of the Bombay High Court. The claim of a third party to a marriage even if she be the mother of one of the spouses cannot be adjudicated before the Family Court and to the prejudice, on the aspects noted herein above, as to procedure, appeal, limitation, of such third party. It may be noted that the respondent/plaintiff in the present case is claiming absolute title to the property not as the representative or trustee of the husband of the petitioner/defendant and/or through the husband of the petitioner/defendant but in her own capacity as the widow and nominee of her deceased husband. It is also significant that though the petitioner/defendant is admitted to have been inducted into the suit premises owing to the marriage with the son of the respondent/plaintiff but that is not the cause of action for the suit. The cause of action for the suit is the refusal of the petitioner/defendant to vacate the house of which the respondent/plaintiff claims to be the exclusive owner. Merely because certain facts leading to the cause of action referred to the marital relationship of the petitioner/defendant would not make the suit as one in circumstances arising out of a marital relationship. The language of Clause (d) of Section 7 is peculiar. The words "circumstances arising out of marital relationship" do not qualify the words "suit or proceeding" but qualify words 'order or injunction'. Thus, the order of injunction sought from the court has to be in circumstances arising out of marital relationship. The order sought in the present case of eviction of the petitioner/defendant and of recovery of mesne profits from the petitioner/defendant does not arise out of a marital relationship but arises out of exclusive ownership claimed by the respondent/plaintiff of the property and the occupation thereof by the petitioner/defendant without authority and/or after the authority has ceased".

13. The facts of the present case are similar to the facts in Manita Khurana Vs. Indra Khurana (supra). In the present case, the plaintiff claims to be the exclusive owner of the suit property having purchased the same by way of a registered sale deed dated 29th August, 2014 and seeks the relief of injunction against the two defendants. Merely because the two defendants are married and the defendant No. 1 has taken the plea that some money in the purchase of the suit property and the construction thereof was spent from the earnings of defendant No. 2 which plea of defendant No. 1 would be hit by the Benami Transactions (Prohibition) Amendment Act, 2016, the relief in the present suit cannot be said to be between the parties to the marriage with respect to the property of the parties or either of them. Consequently, the preliminary objection raised by the defendant No. 1 that the present suit is not maintainable and should be tried by Family Court is dismissed.

IN THE HIGH COURT OF DELHI

CS (OS) 104/2017

Decided On: 06.05.2020

 Meena Kapoor  Vs.  Ayushi Rawal and Ors.

Hon'ble Judges/Coram:

Mukta Gupta, J.

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Whether Wife can demand flat in redeveloped building claiming that she had vacated premises as per S 95A notice of MHADA?

Smt. Pusalkar has argued before us in-person that she was removed from her matrimonial home through the statutory mechanism contained in Section 95A of the 1976 Act, which bore the threats of penal measure and summary eviction process. But this was during the time the decree of judicial separation remained operative. She traces the root of her ‘dishousing’ to a notice dated 10th July 2000 (bearing no. MBR & RB/FN/GN/2136 of 2000) issued by the Board under the 1976 Act. Her case is that it is composite statutory obligation of MHADA, the builder and her husband to rehouse her in her matrimonial home. It is a fact that the said respondents functioned under a statutory scheme while redeveloping the property, commencing from approval of the development scheme, vacating the old building and re-entry into the allocated portion of the redeveloped premises by her husband’s family. The appellant was also dishoused from the said building under that scheme. But in our opinion, when a builder has discharged his obligation by accommodating the original owners in the redeveloped

portion as per such a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the said statute, if her husband does not permit her to reside in the allocated portion. She does not have any independent claim on title or interest to that property having its genesis in that statute. Her claim of right to reside in her matrimonial home is sought to be projected by her as collateral to the statutory right of her husband to be rehoused or rehabilitated in the new building. But her right to reside in her matrimonial home stands detached from and is independent of the statutory scheme under the said Act. Neither MHADA, nor the builder can have any further legal obligation to rehouse her. She is staking her claim as a constructive beneficiary of the redevelopment scheme. But our opinion is that the right she is seeking to enforce, though flows from a set of events on the basis of which her husband can claim rehabilitation, is actually anchored to an independent legal principle under the Family Law. We accept that she was an occupier under Section 2 (25) of the 1976 Act, but such occupier status was dependent upon her husband’s independent right as part owner of the property. Her right flowing from her matrimonial status cannot get diffused with her right of rehousing or rehabilitation under the statutory  scheme. Her right to reside in her matrimonial home does not flow from the 1976 Act.

Though she was dishoused as an occupier applying the provisions of the 1976 Act, claim of her rehousing is based on her status as wife of the respondent no. 8. In our opinion, such claim has to be adjudicated upon by the Civil Court or the Family Court or any other forum the law may prescribe. Such right of the appellant cannot be diffused with the right of her husband under the 1976 Act, whose family property, part of which he is the owner, has been reconstructed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7231 OF 2012

AISHWARYA ATUL PUSALKAR Vs MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 

ANIRUDDHA BOSE, J.

Dated: 27 April, 2020.

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Bombay HC: Writ petition for issuance of writ of certiorari against order of Judicial/Civil Courtis not maintainable

 We are bound by the view taken by the Constitution Bench decision of the Apex Court in the case of Muhhamad Emanual and a three-Judge Bench decision in the case of Savitri Devi, cited supra. We, therefore, hold that in the proceedings under Article 227 of the Constitution of India, neither the Judicial/Civil Court nor the Presiding Officer over it, whose order is challenged, can be a necessary party and, therefore, in the absence of such party, a petition or an application cannot be dismissed as not maintainable. The question of law at Serial No. (3) is answered accordingly. We, however, clarify that there may be an exception where there are allegations of mala fides, partiality, bias, etc., where a Presiding Officer is required to be joined personally as party respondent so as to provide him an opportunity to meet the allegations, in such a case, a petition or an application under Article 227 of the Constitution of India will have to be dismissed as not maintainable, if the order is to be set aside on any such ground.

We summarize our conclusions as under:

(1) A writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari to quash and set aside the order passed by the Judicial/Civil Court, subordinate to the High Court, is not maintainable.

(2) In view of the aforesaid conclusion, the question as to whether the Judicial/Civil Court or its Presiding Officer becomes a necessary party and in its absence a writ petition under Article 226 is maintainable or not, does not survive.

(3) A petition or an application under Article 227 of the Constitution of India challenging the order passed by the Judicial/Civil Court, subordinate to the High Court, cannot be dismissed as not maintainable in the absence of such Court or its Presiding Officer being impleaded as a party respondent, subject to the exception carved out in the judgment.

(4) In view of the decision of the Apex Court in the case of Jogendrasinhji, the decision of the Full Bench of this Court in the case of Ramchandra Dagoji Rangari, holding that the petition for issuance of a writ of certiorari under Article 226 of the Constitution of India, would not be maintainable without impleading the tribunal or the authority, whose order is assailed before the High Court, as a party respondent, no longer remains a good law, subject to the exception carved out in the judgment.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 177 of 2012 in Writ Petition No. 1424 of 2012, 

Decided On: 21.11.2019

 Motilal  Vs.  Balkrushna Baliram Lokhande 

Hon'ble Judges/Coram:

R.K. Deshpande, A.S. Chandurkar and Milind Narendra Jadhav, JJ.

Citation: AIR 2020 Bombay 39(FB)

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Whether civil court can refuse to execute award passed by co-operative court?

 From the discussion made by the learned Civil Judge in the impugned order, it is quite evident that, the learned Judge could not distinguish between the execution of the Award passed under Section 96 of the Act and the recovery certificate issued under Section 101 of the Act. As has been observed by this Court in Vithal Yadav Mhase Vs. Amdar Balasaheb Thorat Nagari Sahakari Path Sanstha Maryadit, MANU/MH/0341/2001 : 2001 (3) Mh.L.J. 650, where recovery certificate is issued by Registrar under Section 101 (1) of the Maharashtra Co-operative Societies Act, 1960, the mode prescribed for recovery of the amount is under Section 156 of the said Act and recourse cannot be taken to Section 98 of the said Act, whereas as held by this Court in the case of Onkar Rajaram Wathodkar (cited supra), it is open for the party in whose favour the Award has been passed under Section 96 of the Act to select a particular forum of execution and if the party wants to get the said Award executed like a decree of the Civil Court, the Civil Court of local jurisdiction cannot refuse to execute the said Award.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 10016, 10017, 10018, 10019, 10020 of 2016, 

Decided On: 25.06.2019

Akole Taluka Shikshak Va Shikshakettar Karmachari Gramin Bigar Sheti Sahakari Pat Sanstha Mydt Vs.  Punaji 

Hon'ble Judges/Coram:

P.R. Bora, J.

Citation: 2019(6) MHLJ 917

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Whether civil court can grant injunction to restrain revenue court?

 In view of the above-stated legal position, the trial Court has rightly held that the Revenue Court is not the court subordinate to the Civil Court, therefore, no injunction can be granted against Revenue Court under Section 41(b) of the Act of 1963. 
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

Second Appeal No. 730 of 1999

Decided On: 06.09.2018

 Prakash Narain Vs.  Sharda Prasad and Ors.

Hon'ble Judges/Coram:

Sanjay K. Agrawal, J.

Citation: AIR 2019 (NOC) 264 CHH

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Whether court should dismiss complaint for dishonour of cheque if cheque amount is more than amount due?

 However, the learned Trial Court found contradiction in the

number of cartons in the complaint as well as in the statement of

the appellant. It was found that the cheque amount is more than

the amount allegedly due on the date when cheque was

presented, therefore, the complaint was dismissed. It held that

there are three different versions as to the number of apple

cartons, therefore, the alleged amount would have been less than

the amount claimed by the complainant.

Once the agent of the respondent has admitted the settlement of

due amount and in absence of any other evidence the Trial Court

or the High Court could not dismiss the complaint only on account

of discrepancies in the determination of the amount due or oral

evidence in the amount due when the written document

crystalizes the amount due for which the cheque was issued.

28. The accused has failed to lead any evidence to rebut the statutory

presumption, a finding returned by both the Trial Court and the

High Court. Both Courts not only erred in law but also committed

perversity when the due amount is said to be disputed only on

account of discrepancy in the cartons, packing material or the rate

to determine the total liability as if the appellant was proving his

debt before the Civil Court. Therefore, it is presumed that the

cheques in question were drawn for consideration and the holder

of the cheques i.e., the appellant received the same in discharge

of an existing debt. The onus, thereafter, shifts on the accusedappellant

to establish a probable defence so as to rebut such a

presumption, which onus has not been discharged by the

respondent.

29. Learned counsel for the respondent has referred to the judgment

reported in M. S. Narayana Menon v. State of Kerala 9 (2006) 6 SCC 39 that evidence adduced by the complainant can be relied upon to rebut

the presumption of consideration. However, said judgment has no

applicability to the facts of the present case as the Trial Court has

found that the presumption is not rebutted but still the Trial Court

dismissed the complaint for the reason that the appellant has

failed to prove the amount mentioned in the cheque as due

amount. Once the cheque is proved to be issued it carries

statutory presumption of consideration. Then the onus is on the

respondent to disprove the presumption at which the respondent

has miserably failed.

30. In Kumar Exports evidence to rebut the presumption was led and

accepted by the Court. In these circumstances, it was held that

the burden shifts back to the complainant and the presumption

under the Act will not again come to his rescue. However, in the

present case, the presumption of consideration has not been

rebutted by the respondent even on the basis of the evidence laid

by the appellant. The difference in the number of cartons supplied

or the rate charged is not relevant when the accounts were settled

in writing to rebut the presumption of consideration of issuance of

a cheque.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1545 OF 2019

UTTAM RAM  Vs DEVINDER SINGH HUDAN 

HEMANT GUPTA, J.

Dated:OCTOBER 17, 2019.

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Whether decision of civil court regarding title over suit property will prevail over decision of assistant charity commissioner?

Now the question arises what is the effect of finding given by Assistant Charity Commissioner in Inquiry No. 151/1997 dated 13.01.2006, holding that the suit property is the property of plaintiff Trust (Exh. 190). The questions arise whether after the decision of Assistant Charity Commissioner regarding nature of the suit property as Trust property, whether defendants can prove their title over the suit property or whether the plaintiff Trust will be held as title holder of the suit property.

12. The Full Bench of this Court had occasion to consider the effect of decision given by Charity Commissioner under inquiry under Section 19 (ii) read with Section 22A of the Trust Act in the case of "Keki Pestonji Jamadar and anr. Vs. Kohodadad Merwan Irani and others" reported in (MANU/MH/0125/1973 : 1972 Mh.L.J. 427). While considering the procedure prescribed by the Trust Act for the conduct of inquiry under Section 19, the Full Bench observed that,

"The procedure prescribed by the Act for the conduct of inquiries under Section 19 is wholly unsuited to a proper and effective adjudication of disputed titles to the trust property. Under Section 19 the Deputy or Assistant Charity Commissioner has to conduct an inquiry "in the prescribed manner". Rule 7 which deals with the manner of inquiries provides that the procedure prescribed for the trial of the suits under the Presidency Small Cause Courts Act, 1882 or the Provincial Small Cause Courts Act, 1887, as the case may be, would apply to the proceedings under Section 19. Under Section 19 (d) (e), (f) and (g) of the Presidency Small Cause Courts Act, 1882 and under Item 4 of the Second Schedule of the Provincial Small Cause Courts to decide questions of title to immovable property is expressly excluded and the procedure devised for trials under those Acts is consequently far too summary for a proper adjudication of such titles. The provision in Rule 7 that a party to an inquiry can appear through an agent and the power of the Tribunal to exclude lawyers from the inquiries reveal to some extent the narrow nature of the inquiry envisaged by Section 19.

Rule 11 provides that the officer holding the inquiry may only make a memorandum of the substance of what each witness deposes. It is unthinkable that questions of title could be permitted to be decided by a Tribunal finally and conclusively without any obligation to record the evidence fully. It is matter of common experience that subtle shades of evidence are often missed in a memorandum containing merely the substance of the evidence".

13. Full Bench of this Court considered Section 26 of the Trust Act under which any Court of competent jurisdiction deciding any question relating to any public trust, which by or under the provisions of Act it is not expressly or impliedly barred from deciding, has to send copy of such decision to the Charity Commissioner and Charity Commissioner has to cause entries in the register to be made or amended in accordance with such decision. This Court held that if a Civil Court upholds the title of third party to the property, which under Section 19 has been found to belong to the trust, the record of the Charity Commissioner has to be amended so as to accord with that decision. The decision of Civil Court will have priority over the decision recorded in the inquiry under Section 19 of the Trust Act. While explaining the above-said judgment of the Full Bench, the Division Bench of this Court, in the case of "Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others" reported in (MANU/MH/0274/1975 : 1976 Mh.L.J. 806), has explained that the true owner is not affected by an inquiry under Section 19 of the Act because the question which has to be decided by the Authorities is a different question operating at different level. The decision of the Authority and decision of the Civil Court operates at different levels and different areas so that there is no conflict between the two.

14. Thus, in view of this legal position though the Assistant Charity Commissioner held that the suit property is the property of Trust, when adverse title is set up in the suit property by the defendants, by inheritance, as legal heirs of Kasturmal Agrawal, the original title holder, the decision of Civil Court regarding title over the suit property will prevail over the decision of Assistant Charity Commissioner. In accordance with the decision of Civil Court, necessary changes in the entries in public trust register will have to be made by Charity Commissioner under Section 26 of the Trust Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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Whether judgment passed by civil court is binding on revenue authorities while carrying out mutation entries?

 In my view, the Law in relation to mutation entries, pursuant
to civil court proceedings, is no longer resintergra.
This Court, in the
matter of Shrikant R. Sankanwar and Ors. vs Krishna Balu
Naukudkar, 2003 (3) Bom.CR 45 has laid down the Law that when it
comes to carrying out mutation entries, the best piece of evidence
has to be considered in cases where there is no verdict of the Civil
Court. In cases where the Civil Court had an occasion to deal with

the
claims of the parties in relation to their right, title and interest
over immovable properties, it was held that the verdict of the Civil
Court would bind the revenue authorities and mutation entries,
which are meant for fiscal purposes, should be carried out in tune
with the verdict of the Civil Court. It was also concluded that the
verdict of the Civil Court would bind the revenue authorities in
matters of carrying out mutation entries and not viceversa.

THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.792 OF 2019

Gangabai Ramrao Patil,  Vs   The State of Maharashtra,

( CORAM : Ravindra V.Ghuge, J.)
DATE : 07/06/2019
Citation: 2019(6) MHLJ 896

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Whether judgment passed by civil court will be nullity if family court is working in that area?

However, the issue is, when no objection was raised to the jurisdiction in the trial Court but was raised in the Ist & IInd appellate Courts, whether it is curable irregularity and whether the judgment & decree would be binding unless prejudice is shown to the parties. If the establishment of Family Court and vesting of exclusive jurisdiction with the Family Court is treated at par with the territorial jurisdiction, then the decision passed by Civil Judge Sr. Divn., will not be a nullity. However, if it is subject-wise exclusion of jurisdiction u/s. 8, the decision will be a nullity.

10. Learned counsel Shri. Patil placed reliance on Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana and Ors. reported in MANU/SC/0703/2013 : AIR 2013 SC 3060, wherein it is laid down that, if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply.

11. Section 8 is specific. It lays down that, where a family court is established in any area, no district Court or any subordinate civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation. Similarly, the jurisdiction of the Magistrate court is also ousted by the sub-clause (b).

15. The specific ouster of jurisdiction of the courts in respect of area for which the Family court has been established u/s. 8 shows that, the subject-wise jurisdiction of Civil Judge Sr. Divn., has been ousted and it is not a simple question of territorial jurisdiction. Therefore, the decisions rendered by the courts having no subject-wise jurisdiction will be a nullity.

16. In fact, the Civil Judge Senior Division should have been more careful and should not have entertained the petition and should have returned it for presentation before the proper court. Whenever in any city there is a family court, all Civil Judges (Sr. Divn.) should see whether the cause of action for the matrimonial petitions filed before them arises within the area for which Family Court has been established or not. If it is established, the Civil Judges (Sr. Divn.) should return the plaint and should avoid unnecessary wastage of time, money and energy of the litigants. As Sec. 8 of the Family Courts Act has taken away the jurisdiction, the decisions rendered by the Civil Judges (Sr. Divn.) and District Courts are nullity.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 237 of 2016

Decided On: 02.11.2018

 Ravindra Sukhdev Ghadge  Vs. Swati Ravindra Ghadge and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(2) MHLJ 110

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Whether suit for injunction simplicitor by landlord or tenant is maintainable in civil court?

Section 28 of the Bombay Rent Act, which has been off used and reproduced, grants exclusive jurisdiction only to the Court of Small Causes at Bombay (Rent Court) in respect of all suits and proceedings between the landlord and tenant for

(i) recovery of rent,

(ii) recovery of possession,

(iii) relating to recovery of rent or possession of any premises tenanted, and also

(iv) for any application made under the Act and

(v) to deal with any claim or question arising out of

(a) the Act or

(b) any of its provisions.

15. The suit filed by the Respondent is a suit for injunction simplicitor. The suit is neither for recovery of rent, nor for recovery of possession of any premises nor relating to the recovery of rent, nor relating to the recovery of possession of the premises. It is not shown under which provision of the Rent Act the issues in the suit could have been determined as an application or claim made under the Rent Act or under which provision of the Rent Act any question arising for determination in the Respondent's suit for injunctions simplicitor could be tried.

16. The Respondent's Advocate upon the Courts' query contended that an application for the reliefs sought in the suit if made in the Rent Court would have to be made under Section 12(1) of the Rent Act. Section 12(1) relates to the disentitlement of landlords for recovery of possession of the tenanted premises until the tenant pays or is ready and willing to pay the rent and observes and performs the conditions of tenancy which are consistent with the Rent Act. The disentitlement under Section 12 is only for recovery of rent or recovery the possession of the tenanted premises. There is no disentitlement under that Section for grant of any injunction.

17. It is contended on behalf of the Appellant that the suit seeks to enforce the negative covenant in the admitted agreement between the parties of 1972. It requires the Appellant not to obstruct other persons from using the open space which is meant for the purpose of access or to put up construction of any temporary or permanent nature in the open space. This, therefore, is one of the conditions of tenancy. The suit claims that those conditions are breached. The suit requires, enforcement of the observations and performance of those conditions and hence, the reliefs sought in the suit must be by way of an application or a claim arising under the Act and specifically under the provisions contained in Section 12(1) thereof. The argument is misconceived Section 12(1) only shows disentitlement of landlords to sue until a particular time. Neither the landlord nor the tenant can sue under that provision. When there is a breach of the terms and conditions of tenancy, the landlord's disentitlement to sue would come to an end. If the landlord seeks recovery of possession for non-observance and non-performance of certain conditions of tenancy, he would sue under Section 13 of the Bombay Rent Act. Neither the landlord nor the tenant who seeks only an injunction, either prohibitory or mandatory, can sue under Section 12 of the Act.

18. The Rent Act essentially seeks to protect tenants from actions for recovery of possession or those relating thereto. It does not go further. It specifically omits and does not protect landlords seeking injunction simplicitor. Consequently under Section 28 the inherent jurisdiction granted to the Special Court is only for matters relating to recovery of rent, and matters relating to recovery of possession. The Suit for injunction, therefore, must continue to remain only in the Civil Court.

IN THE HIGH COURT OF BOMBAY

First Appeal (ST) No. 13850 of 2007

Decided On: 28.06.2007

 Packing Paper Products  Vs.   Nicaf Private Ltd. and Ors.

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2007(5) MHLJ 34,AIR 2007(NOC)2407 Bom

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Whether tenant can file suit in civil court for recovery of possession from unlawful sub tenant?

That brings me to the question of jurisdiction. It was argued by Mr. Gauba ' that after the amendment the suit must be treated as a suit for possession falling within the ambit of Section 28 of the Bombay Rent Act. It was said that this is a suit between a landlord and a tenant relating to the recovery of possession of premises, to which the provisions of the Act apply. It was also said that the suit relates to a claim and question arising out of the Act and its provisions. Therefore, so the argument proceeded, this Court has no jurisdiction to grant any relief to the plaintiffs or either of them. It was argued on the other hand that Section 28 applies to a suit between a landlord and a tenant when there is or has been a valid and binding tenancy between the parties, and admittedly there is here no lawful tenancy. There is, to my mind, considerable force in this argument. There is nothing in the definitions given in the Act which may throw any appreciable light on this short question Which arises for my decision. It would seem, however, from the definitions of the expressions landlord and tenant in the Act that the part of it which is relied on as relevant for the purposes of this suit deals only with tenancy legislation and applies to premises for which rent is payable by agreement of the parties or in respect of which standard rent is or can be fixed under the Act, It can hardly be disputed that no standard rent can be fixed by the Court in respect of a tenancy purported to be created by the parties but is prohibited by law and therefore illegal. I have little doubt that a tenancy between a landlord and a tenant contemplated by the Act and Section 28 can only be one which is recognised by law. Sub-tenancy which is prohibited in express and explicit terms by Section 15 of the Act cannot be said to create any right between the parties to it such as can flow from the relationship of landlord and tenant. No such relationship can arise between the parties to any such agreement or dealing which is illegal in its inception. An examination of the various provisions of the Act also lends support to the view that a sub-tenancy intended to be created in contravention of the provisions of the Act is not within the purview of Section 28. Section 13 of the Act, for instance, clearly contemplates a legal: tenancy as the basis of the rights of the landlord enumerated in it. For all these reasons I am unable to see how the present claim of plaintiff No. 1 based solely on his title and absence of any right or interest in the defendants in the premises in suit can fall within the operation of the Rent Act.

My answers to the issues that remain for determination are:

(1) In the affirmative.

12. My answer to the issue added at the instance of the plaintiffs is that plaintiff No. 1 is entitled to recover possession of the flat from the defendants.

13. My answer to the newly added issue about jurisdiction is that this Court has jurisdiction to grant relief to plaintiff No. 1.

IN THE HIGH COURT OF BOMBAY

O.C.J. Suit No. 901 of 1952

Decided On: 30.01.1957

Jiwanjirao Scindia  Vs.  Muzammil Khurshid

Hon'ble Judges/Coram:

S.T. Desai, J.

Citation:(1957) 59 Bom. L.R. 1011

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Whether civil court can grant reliefs incidental to main relief of dissolution of marriage under muslim law?

 Third and the most important factor which is required to be considered is that the law always expect that all the disputes between the parties should be decided in one forum and in one proceeding, so as to avoid the multiplicity of proceedings and the waste of time, energy and money of the parties in prosecuting the remedies in different forums. The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much integral part of decree of 'dissolution of marriage'. Hence, they are required to be considered in the same proceeding, even if at times such reliefs are not asked for also. It is well recognized that the award of maintenance is the fall out of the decree of 'dissolution of marriage', hence even if at times, the Respondent has not asked for the maintenance, she is awarded that maintenance for herself and her children while passing the decree for 'dissolution of marriage'. It may be stated that, even when the decree is of 'Restitution of Conjugal Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is provision for award of maintenance under Order 21, Rule 33 of the Code of Civil Procedure, till the decree is complied with. The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.

IN THE HIGH COURT OF BOMBAY

Second Appeal (ST.) No. 11650 of 2017 and Civil Application No. 1570 of 2017 in Second Appeal (ST.) No. 11650 of 2017

Decided On: 02.08.2018

 Adnan Chara Vs.  Farhat Adnan

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation:AIR 2018 Bom 282

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Whether Police can interfere in a civil case unless directed by a competent Court?

 In the light of the submissions made by the learned Assistant Government Pleader for Home, it is obvious that this writ petition is mis-conceived. The petitioner ought to have proceeded in the civil court by filing execution petition and sought for orders for police-aid to protect his possession. The Police cannot interfere in any civil dispute unless there is an order by the competent court to them to protect the possession of the petitioner. Therefore, there are no merits in this writ petition. 

In the High Court of Andhra Pradesh

(Before Gudiseva Shyam Prasad, J.)

Tirumala Siva Prasad 

v.

The State of Andhra Pradesh 

Writ Petition No. 150 of 2016

Decided on April 17, 2018

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Whether civil court has jurisdiction to decide correctness of findings recorded by Mamlatdar's court?

In my considered opinion, as this contention is not raised either before the Trial Court or before the Appellate Court and it is raised for the first time before this Court, it cannot be considered in writ jurisdiction. Even if this Court considers the same, it being a point of law, it cannot be upheld. Firstly, because, to operate any order or finding as res judicata, the parties to both the proceedings must be the same. Here in the case, admittedly, Respondent No. 1 was not a party to the proceedings before the Mamlatdar's Court. Secondly, once it is held that, Civil Court has jurisdiction to decide the correctness of the finding recorded by the Mamlatdar's Court, there is no question of res judicata operating in such case.

IN THE HIGH COURT OF BOMBAY

Civil Writ Petition No. 1826 of 2018

Decided On: 23.03.2018

 Vasudev Pandharinath Raikar Vs. Manoj Mohan Dalvi and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 927

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Whether Civil Court can grant Maintenance, Mehr & a Share in Matrimonial property to Muslim Woman?

It is also not a case where the Civil Court cannot and does
not have the jurisdiction to grant these reliefs of maintenance and
share in the matrimonial property. Under the provisions of the
Protection of Women from Domestic Violence Act, 2005, Section 26
confers concurrent jurisdiction on all the three forums, including the
Family Court, the Court of Judicial Magistrate First Class and also the
Civil Court, as regards the relief like the maintenance. So far as the

relief in respect of the matrimonial property or the property standing
in the joint name of both the spouses which is a fact in this case also,
the Civil Court is having the jurisdiction to entertain such suit. As a
matter of fact, according to learned counsel for the Appellant also,
Section 22 of 'The Specific Relief Act, 1963', clearly provides for
partition of such jointly owned property and under the provisions of
'The Specific Relief Act, 1963', it is the Civil Court, which is having the
jurisdiction to grant such decree. Therefore, it is not a case, where the
Civil Court was not having the jurisdiction to grant the reliefs which
the Respondent had claimed in the suit. Hence, it also cannot be said
that the trial Court has exceeded its jurisdiction.
31] As regards the reliance placed by learned counsel for the
Appellant on the judgment of the Hon'ble Supreme Court in the case of
Chandrika Singh (supra), there the issue framed was relating to the
tenancy, for which a separate competent authority is established and
the Civil Court's jurisdiction to decide such issue is excluded.
Therefore, it was held that such issue was required to be referred to
the tenancy authorities. Here, in the case, the jurisdiction of the Civil
Court is not excluded in any way to decide both these issues relating to
maintenance of the children and the right and share of the
Respondent in the jointly owned flat. The Civil Court was having very

much jurisdiction and therefore, there is no question of the trial Court
exceeding its jurisdiction or acting beyond its jurisdiction or
exercising the jurisdiction, which was not vested in it. Hence, on this
score also, the contention raised by learned counsel for the Appellant
cannot be accepted.
32] Third and the most important factor which is required to
be considered is that the law always expect that all the disputes
between the parties should be decided in one forum and in one
proceeding, so as to avoid the multiplicity of proceedings and the
waste of time, energy and money of the parties in prosecuting the
remedies in different forums. The right of maintenance and right in
the matrimonial property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
'dissolution of marriage' and therefore, these reliefs are very much
integral part of decree of 'dissolution of marriage'. Hence, they are
required to be considered in the same proceeding, even if at times
such reliefs are not asked for also. It is well recognized that the award
of maintenance is the fall out of the decree of 'dissolution of marriage',
hence even if at times, the Respondent has not asked for the
maintenance, she is awarded that maintenance for herself and her
children while passing the decree for 'dissolution of marriage'. It may

be stated that, even when the decree is of 'Restitution of Conjugal
Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is
provision for award of maintenance under Order 21, Rule 33 of the
Code of Civil Procedure, till the decree is complied with. The point to
be stressed is that the relief of maintenance whether to the wife or the
children is incidental to the relief of 'dissolution of marriage'. Merely
because 'The Dissolution of Muslim Marriages Act, 1939', does not
mention that the Court is also having the jurisdiction or power to
grant such relief, it cannot be said that the Court is not having
jurisdiction to grant it, if it is incidental, claimed and the Court finds it
necessary to grant the same. Moreover, the right of maintenance
given to wife and the minor children under the provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, is in
addition to the right, which the minor children are having under
Muslim Law to get maintenance from the father. The law expects that
the parties should not be driven to approach the different forums but
in one forum itself they should be granted whatever reliefs to which
they are entitled.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST.) NO. 11650 OF 2017
WITH
CIVIL APPLICATION NO. 1570 OF 2017
IN
SECOND APPEAL (ST.) NO. 11650 OF 2017

Adnan Chara Vs Farhat Adnan


CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

PRONOUNCED ON : 2nd AUGUST, 2018.
Citation:AIR 2018 Bom 282

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Whether civil court has jurisdiction to grant injunction in case of unauthorized construction on public property?

On going through the pleadings in the plaint, I find that there is a great substance in the argument of the learned counsel for respondent No. 1 and there is no substance in the argument of learned counsel for petitioner and respondent No. 2. It is well settled law that in order to examine the issue of rejection of plaint under Order 7, Rule 11 of CPC, on the ground of the suit being barred by law, what is required to be seen is only the pleadings in the plaint in their ordinary and natural sense without adding anything to or subtracting anything from those pleadings. It is also settled law that it is not permissible for the court to examine such an issue by looking into the documents which are not part of the pleadings in the plaint. Going by these principles, when one examines the plaint pleadings, one can easily find that these pleadings, understood as they stand in the plaint, do not oust the jurisdiction of the civil court. In para No. 4 of the plaint, it is specifically averred that while raising the construction on his own plot, the petitioner did not leave any open space on the southern as well as western side of the plot and that this construction has resulted in closing the drainage of the roof water flowing from the construction made by respondent No. 1. It is also pleaded that some portion of the offending construction is penetrating the property of respondent No. 1 and it has been carried out by demolishing the northwest corner of his house and erecting one column at this place. There is also a pleading to the effect that this construction made by the petitioner has encroached upon the right to privacy of the plaintiff.

6. Now, these pleadings when understood in their plain and ordinary sense, convey that there is a grievance which can be properly adjudicated upon only by the civil court and not by any public authority as prescribed under Section 53 of the Village Panchayat Act. Some of the reliefs claimed in the plaint are about permanent injunction and mandatory injunction which could not be granted by the public authority and granted only by a civil court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 10 of 2017

Decided On: 21.08.2017

Damodar Dnyandeorao Sarap Vs. Haribhau Govindrao Pakdane and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2018(3) MHLJ 179

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