NIRMALA DHONDIRAM KADAM Vs. SHATRUGHANA K PADAVA

JUDGEMENT

(1.) This is an appeal from order dated 1-7-1983 passed by the learned Judge of the Bombay City Civil Court dismissing the chamber summons taken out by the appellant (hereinafter referred to as "the plaintiff") in S.C. Suit No. 5577 of 1979.

(2.) The facts giving rise to this appeal are that the plaintiff and the member of her family were occupying Room No. 4569, in Building No. 150 at Kannamwar Nagar, Vikroli, Bombay belonging to Maharashtra Housing Board (hereinafter referred to as `the suit premises). The said premises were allotted to her as she was an industrial worker. Sometime after December 1975 as her husband expired in an accident she vacated the suit premises and handed over the same to one Ghanshyam S. Kawade (hereinafter referred to as `defendant No. 1) for a temporary period for use and occupation. After one year she requested defendant No. 1 to vacate the suit premises and she was given assurance on that behalf. Subsequently she found, in the month of August 1979, that one Francis (hereinafter referred to as the `defendant No. 2) was in possession of the suit premises with his family. On enquiries he told the plaintiff that he had purchased the premises from defendant No. 1 on payment of Rs. 14,000/-. Therefore, she filed a suit in the trial Court against defendant Nos. 1 and 2 for a declaration that defendant No. 2 was a trespasser in respect of the suit premises and that she be declared in lawful possession of the same. Further prayer was that defendant No. 2 be ordered to hand over vacant and peaceful possession of the said premises to her and he, his agents and/or servants be restrained by a permanent injunction and order from dealing with or disposing of or parting with the suit premises or any part thereof in any manner whatsoever and/or inducting and/or allowing any third party to use or occupy the suit premises. The said suit was decreed ex parte. Thereafter, she took out execution proceedings and found that the present respondents were in possession of the suit premises. Therefore, she took out chamber summons for directions to the Sheriff of Bombay to remove the respondents and/or any other persons found in possession of the suit premises and to put her in exclusive possession of the scheme. The chamber summons was opposed by respondents. They raised a contention that Civil Court had no jurisdiction to try and entertain the suit as the same is barred under the provisions of Maharashtra Housing and Area Development Act, 1976 (hereinafter referred in as the `Act). The chamber summons was hotly contested. The learned trial Judge by his impugned order held that in view of the provisions of section 71 of the Act the jurisdiction of the Civil Court was barred to entertain any suit or proceedings in respect of eviction of any person from any premises of the Maharashtra Housing Board. Aggrieved by the said order the plaintiff preferred present appeal.

(3.) Now, Mr. Gupte, learned Counsel appearing on behalf of the appellant, urged that the jurisdiction of the Civil Court is not barred by the provisions of section 71 of the Act inasmuch as under section 66 of the Act the Competent Authority is empowered to take eviction proceedings and the suit filed by plaintiff and the subsequent proceedings were not in respect of the eviction proceedings but the same were with regard to disputes between private persons viz. the plaintiff and defendant Nos. 1 to 2 and the present respondents. Mr. Gupte invited my attention to a judgment of the Supreme Court in (Chandu Naik and others v. Sitaram B. Naik and another) A.I.R. 1978 S.C. 433 and urged that in view of the law laid down by their Lordships of the Supreme Court the jurisdiction of the Civil Court is not ousted. Mr. Patil, learned Counsel appearing on behalf of the respondents, fairly conceded to this legal position. Mr. Gupte, learned Assistant Government Pleader also aired the same views.