Illegal structure cannot get protections Desktop View Main Search Advanced Search View the actual judgment from court Bombay High Court Shivashankar Swami vs Municipal Corporation Of Greater ... on 12 December, 2014 Bench: A.P. Bhangale spb/ RPF11-13J.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 11 OF 2013 IN FIRST APPEAL NO. 174 OF 2005 (F.A.decided on 06-09-2013) Mr. Shivashankar Swami, ) ... Petitioner/ R/at Room No.1, Philip Misquitta Chawl, ) Applicant. Milan Subway Road, Santacruz (W), ) Mumbai -400 054. ) V/s. 1. The Municipal Corporation of Greater ) Bombay, a statutory Corporation ) established under the BMC Act,1888, ) Head office at : Mahapalika Marg, ) Fort, Mumbai-400 001. ) ) 2. Mrs. Margret Hubert Pereira, ) ... Respondents. Christian, Indian Inhabitant, ) nd Anu Building, D/43, 2 floor, ) Milin Subway, Santacruz (W), ) Mumbai -400 054. ) --- Mr. P.S. Dani, Senior Counsel i/by Mohit Jadhav, Advocate for the for the Petitioner/ Applicant. Mr. Vinod Mahadik, Advocate for Respondent No.1 -BMC. Mr. Saeed Akhtar a/with Mr. Khushnood Akhtar, Hitesh Thorat & Rehan Ansari, Advocate for Respondent No.2. --- Borey 1/10 ::: Downloaded on - 12/12/2014 23:47:22 ::: spb/ RPF11-13J.sxw CORAM : A.P. BHANGALE, J. RESERVED ON : 09th DECEMBER, 2014. PRONOUNCED ON : 12th DECEMBER, 2014. ORDER : 1 Heard submissions at the bar and considered the pleadings of the parties before the Court. 2 Review petitioner / applicant by this review petition prays for recalling / setting aside the Oral Judgment and order dated 6th September 2013 passed in First appeal no.174 of 2005 which was preferred from dismissal of the L.C Suit no.3951 of 1999, dismissed by the Bombay City Civil Court on 31-08-2004. Upon inspection dated 07-01-1999 by the Assistant Engineer K-ward of the Municipal Corporation of Greater Mumbai, an unauthorized construction of the Mezzanine floor was detected. Subject matter of the suit mezzanine floor structure described in the notice issued under Section 354-A of the Mumbai Municipal Corporation Act. Municipal Corporation of Greater Mumbai had issued notice dated 05-07-1999 to the Plaintiff for an unauthorized construction of the mezzanine floor admeasuring 21 feet x 19 feet, constructed with B.M. walls and AC sheet roof in the suit room. The mezzanine floor was constructed without obtaining the prior permission of the MCGM, required according to law. The Applicant - Plaintiff therein had sought to restrain the Borey 2/10 spb/ RPF11-13J.sxw Municipal Corporation from demolishing the said unauthorized suit structure pursuant to the notice. 3 The trial court after framing the issues, recording the evidence and hearing the parties, had dismissed the Civil Suit by its detailed judgment and order dated 31-08-2004 and the unsuccessful plaintiff by way of the first appeal filed before this court had challenged the Judgment and order delivered by the trial court, dismissing the suit. 4 The main contention of the applicant is that when the first appeal was called on for hearing before this Court, the Advocate of the applicant was busy before other court and it is contended that the hearing of the first appeal ought to have been adjourned on that ground instead of passing the oral Judgment and order on merits. Learned Advocate for the applicant relied upon ruling in Sarman Singh v/s Kishan Singh through Lrs. reported in 2007(3) MLJ 839(SC) and the ruling in Jao @ John Fernandes Through Lrs V/s Bernandian Fernandes, reported in 2014(5) Mah.L.J 56. 5 In Sarman Singhs case (supra) Second appeal was decided by referring to the merits of the case by the single Judge of the P & H High Court on the day when it was listed and while on that day there was no appearance on behalf of the appellant/applicant. The respondents were yet to put in Borey 3/10 spb/ RPF11-13J.sxw appearance. It was contended in that case that the matter was listed at serial no. 260 and when it was called out, learned Advocate for the appellant was busy arguing before Honble the Chief Justice. By the time the assisting counsel for the appellant reached the Court to note the next date, the learned single Judge had dismissed the appeal for want of prosecution. In the facts of that case which were undisputed, the Apex Court observed that in view of the factual scenario projected and admitted as correct, the mere fact that the Second appeal was dismissed on merits, it could not have been a ground to refuse restoration of the second Appeal. In another case cited of John Fernandes (supra), Single Judge of Bombay High Court at Panaji Bench was hearing Second Appeal on the substantial question of law as to whether the first appellate court was competent to decide the application for condonation of delay in filing the appeal and consequently the appeal on merits, when on the date of hearing none appeared on behalf of the appellants and whether the Court was bound to dismiss the application / appeal for want of prosecution or for non- appearance in view of Order XLI ,Rule 17 of the Civil Procedure Code instead of hearing and deciding the application on merits? The Court held in the negative and observed that opportunity of hearing should have been given to the applicant herein in the interest of justice. Borey 4/10 spb/ RPF11-13J.sxw 6 It is submitted that once an appeal is admitted, Rules 16 onwards of Order XLI would apply. Rule 17 provides for `Dismissal of Appeal for Appellants Default. It reads thus : 17. Dismissal of appeal for appellants default (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation--Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. Hearing appeal ex parte. - Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. The submission on behalf of the applicant is that this court ought not to have heard and decided the first appeal on merits as per impugned judgment and order. It is further submitted that the first appeal be restored to the file and be fixed for re-hearing. 7 Learned Advocates for the respondents opposed the Review application contending that prayer in the application made is for Review of the judgment and order passed by this court and not for restoration of the first appeal. The application for review is strongly opposed on the ground that the applicant had abused the process of law as he had after obtaining the interim injunction order against the MCGM in the pending suit, Borey 5/10 spb/ RPF11-13J.sxw constructed the unauthorized mezzanine floor in the guise of interim order of injunction obtained against the Municipal Corporation. It is contended that in the guise of the review application, the applicant want this court to rehear the first appeal which was finally decided after repeated adjournments, at final hearing stage by the well reasoned judgment & order on merits. It is submitted that there is no any error apparent on the face of the record, warranting interference in the Judgment and order passed by this court in the first appeal. According to learned Advocates for the respondents above rulings and provisions cited on behalf of the Review applicant are not attracted in the facts and circumstances of the first appeal decided by this court as it was repeatedly fixed for final hearing and was pending since long before the judgment and order in question. 8 This Court has always insisted advocates to appear and argue the case especially when it is called out for final hearing. There is nothing wrong in it. It is the duty of the advocate having accepted the brief from the client to faithfully attend the final hearing of the cases which are pending since long. Failure to appear or to make arrangement for to argue at final hearing would be unfair not only to the client but also discourteous to the Court and must be severely deprecated. At the same time, this Court has also emphasized doing justice to Borey 6/10 spb/ RPF11-13J.sxw the cause wherein it is appropriate that both the Advocates in the Appeal, representing the parties, attend before the Court and they are heard. It has been noted by the Court that once a party engage advocate/s, the party concerned has a legitimate expectation that advocate concerned will attend and appear when the case will be taken up for final hearing and when the Court calls upon the counsel to make submissions. It is, keeping in view these principles that the Court does not normally proceed to hear the matter in absence of the respective counsel. Even otherwise, in my view the power of review has to be exercised with exceptionally and with greatest circumspection in the background of the facts and circumstances of each case. Under Order 47 Rule 1 of the Civil Procedure Code, the judgment in question may be open to review if there is a mistake or an error apparent on the face of the record. Review jurisdiction has a limited scope and purpose - (i) when new and important matter or evidence is discovered which was not within the power or knowledge of the party despite due diligence and cannot be allowed to be an Appeal in disguise. (ii) Such important evidence could not be produced at the time when decree was passed or order made. (iii) On account of some mistake or error apparent on the face of the record or any other sufficient reason. Borey 7/10 spb/ RPF11-13J.sxw 9 In the present case, it appears that before this Court at the admission stage on 29th April 2005 both learned counsel had agreed that appeal may be heard finally. Liberty was granted accordingly for the respondent no. 2 to mention for fixing early date of hearing. By order dated 08-12-2006 this Court directed the office to post the first appeal no. 174 of 2005 for final hearing on 12-02-2007. By further orders dated 28-02-2007, 25-01-2008, 05-02-2010, 22-10-2010 and on 07- 06-2011 the appeal was called for hearing twice in the day and was dismissed in view of Order 41 Rule 17 of the Civil Procedure Code. This Court had graciously restored the first appeal by order dated 9th June 2011. Thus First Appeal came up for final hearing pursuant to the order dated 25-04-2012 and 28-06-2012. The Office of this Court had noted that the First appeal is ready for final hearing and therefore it was heard finally by this Court and decided. These fact are indisputable from previous orders passed and note-sheets in record of the First Appeal No. 174 of 2005. 10 It would amount to abuse of the legal process if recourse to normal long lasting remedy of civil suit is utilized by an unscrupulous litigant with a view to abuse the process of law as it would generally result in obvious procrastination for a responsible planning authority to espouse the action against offending persons responsible for unauthorized constructions. The offending litigant would use every potential means to Borey 8/10 spb/ RPF11-13J.sxw ensure that the inordinate delay occurs in the disposal of the suit and appeals, once a stay or ad-interim injunction order is obtained. The suit or appeal lingers on for many years in Bombay City Civil Court and in upper courts due to mounting arrears of Civil litigation. The legislative intention is to act as early as possible in public interest to ensure that the urgent and expeditious action is taken against illegal constructions. It is experienced that in city of Mumbai there is growing tendency to construct unlawfully, obtain interim injunction order from the against the Municipal Corporation and then continue to cause delay on some pretext or the other to procrastinate the legal and logical outcome in the judicial proceedings indefinitely. Continuing protection if made available for the unauthorized structures in such cases, may amount to encouraging and perpetuating the illegality and may result in abuse of the legal process. 11 Therefore after having considered the submissions at the Bar and record of the case, I find that this was one such case in which the plaintiff- appellant did not deserve long rope to enjoy the continuing protection of the offensive act of unauthorized construction merely on the pretext that advocate concerned was not available when the first appeal was called on for final hearing; after repeated adjournments obtained, and was decided on merits after hearing the advocates on record available to represent the parties. I do not find any Borey 9/10 spb/ RPF11-13J.sxw mistake or error on the face of the record. In the facts and circumstances, no any exceptional or sufficiently good ground is made out so as to recall or set aside the Judgment and order passed on merits of the first appeal. 12 For reasons stated above, therefore, the Review Petition No. 11 of 2013 is dismissed with costs (A.P.BHANGALE, J.)
Posted on: Mon, 15 Dec 2014 17:37:52 +0000
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