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Saturday, 28 June 2014

Whether injunction can be granted when suit has become infructuous?



Therefore, We cannot find fault with learned trial Judge 
because   once   the   Honorable   Supreme   Court   held   that   this   Slum 
rehabilitation scheme is duly sanctioned and legal in the present case 
the same challenge cannot continue to subsist. It would be abuse of the 
process of law if plaintiffs are allowed to continue the same prayers 
which   cannot   be   re­agitated   and   granted   when   scheme   is   already 

declared legal  by  the  High  Court and the  Supreme  Court.    More  so 
when building is completed and occupied by the dwellers the prayers as 
to the challenge letters of intent, intimation of approval and Building 
commencement   Certificate   became   infructuous.   There   can   be   no 
injunction   to   restrain   construction   as   the   Building   is   completed   and 
possession   also   handed   over   to   the   dwellers.   The   suit   was   rightly 
dismissed as infructuous.

CIVIL APPELLATE JURISDICTION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FIRST APPEAL NO.229 OF 2013
  RAMESH FAKIRA LOHKARE, A
V/s.
 THE MUMBAI MUNICIPAL CORPORATION
OF GREATER MUMBAI

CORAM  : A. P
. BHANGALE, J.
                        
                        DATE ON WHICH :   
   JUDGMENT IS PRONOUNCED  :            SEPTEMBER, 2013.
Citation;2014(3) ALL MR 173 Bom

Heard   submissions   at   the   Bar.   Perused   impugned   oral 

Judgment by the Trial court. The appeal is directed against the order 
passed   below   Notice   of   Motion   No.   2224   of   2012   taken   out   by 
Defendant no.4 in Long cause Suit no. 2734 of 2009  with the prayer in 
the   N/M   was   for   rejection   of   the   plaint   under   Order   7   Rule   11   or 
Return of the Plaint under Order 7 Rule 10 Civil Procedure Code. The 
suit was disposed of as infructuous, on the ground that the building is 
premises in suit structure situated at Dholkawala Chawl, a part of FP 
No.569, TPS IV
, Mahim Division, Kakasahib Gadgil Cross lane, Dadar 
(West), Mumbai­28.
completed and number of the plaintiffs had taken possession of the suit 

Learned   Judge   of   the   City   Civil   court   held   that   reliefs 
claimed in the plaint are infructuous because the plaintiffs have already 
entered   into   agreements   with   defendant   no.4   and   agreed   for   the 


implementation  of the    slum rehabilitation  scheme and accepted the 
compensation /rent for scheme. The scheme was declared as legal by 
the Apex Court, therefore prayers in the plaint can not be entertained. 
It is also alleged that the plaintiffs are proxy litigants put up by one 
Pramila Thakur, who had filed many writ  Petitions in this regard and 
had  also filed Special  Leave  Petition  in  the  Apex Court to  challenge 
Building   has   been   completed   in   accordance   with   the 


sanctioning of  slum rehabilitation scheme which were disposed of.
sanctioned scheme for  slum rehabilitation  and some  of  the  plaintiffs 
beneficiaries   are   already   occupying   the   premises   allotted   to   them 
barring the few who have been put up as proxy litigants for Pramila 
Thakur. The object of early completion of the building in execution of 
the slum rehabilitation scheme is to provide shelter to the   poor and 
marginalized   persons   as   early   as   possible   and   without     undue 
interference from ill motivated proxy litigants. Early implementation of 
the Slum Rehabilitation Scheme( SRS ) is in the larger interest of  poor 
shelter less people. Trial Court is justified to remove the roadblock in 
the   form   of   suit   seeking   to   restrain   the   completion   of   the     Slum 
rehabilitation Scheme which is otherwise  duly sanctioned according to 
law.   High   power   committee   have   been   constituted   by   the   State 

Government   to   oversee   the   implementation   of   the   SRS.   Hence   the 
remedy to institute the civil suit and to allow it to continue for long 
years   of   normal   course   of   the   suit   in   City   of   Mumbai   need   not   be 
encouraged  when  the  aggrieved  person  has  remedy to  approach the 
high power committee constituted for the purpose, or if felt necessary 
to invoke Writ jurisdiction, if so advisable. A suit to restrain the scheme 
at   the   stage   when   it   is   already   implemented,   cannot   continue. 

Maharashtra   Slum   Areas   (Improvement,   Clearance   and 
Redevelopment) Act, 1971 is  enacted   to  make  better  provisions for 
improvement, clearance and redevelopment of slum areas in the State 
of Maharashtra. The suit in hand, found without valid cause of action 
cannot be allowed to continue to remain pending for long years which 
would defeat the provisions of Act, in the facts and circumstances noted 
by learned trial judge from the  prima facie  view of the plaint.

Therefore, We cannot find fault with learned trial Judge 
because   once   the   Honorable   Supreme   Court   held   that   this   Slum 
rehabilitation scheme is duly sanctioned and legal in the present case 
the same challenge cannot continue to subsist. It would be abuse of the 
process of law if plaintiffs are allowed to continue the same prayers 
which   cannot   be   re­agitated   and   granted   when   scheme   is   already 

declared legal  by  the  High  Court and the  Supreme  Court.    More  so 
when building is completed and occupied by the dwellers the prayers as 
to the challenge letters of intent, intimation of approval and Building 
commencement   Certificate   became   infructuous.   There   can   be   no 
injunction   to   restrain   construction   as   the   Building   is   completed   and 
possession   also   handed   over   to   the   dwellers.   The   suit   was   rightly 
dismissed as infructuous. The controversy agitated is already dealt with 

by   discussion   of   law   on   the   subject   by   the   Apex   Court   in  Pramila 
Suman Singh Vs. State of Maharashtra & Others in Civil Appeal No.
7435 of 2008 decided on 19­12­2008. 

No ground is  made  out  for  interference  by  this  court  in 
exercise of  the Appellate jurisdiction. Hence appeal is dismissed.
(A. P
. BHANGALE, J.)

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