LAW FINDER

Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.

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Sharda Shantaram Prabhale v. Narendra Shantaram Prabhale (Bombay) Law Finder Doc Id #
238487
2000(1) ALL MR 446 : 2000(2) HLR 92 : 2000(2) Mh.LJ 113 : 2001(1) DMC 524
BOMBAY HIGH COURT
Before:- H.L. Gokhale, J.
First Appeal No. (Stamp) No. 15334 of 1999 with Civil Appln. No. 3180 of 1999. D/d. 17.8.1999.
Sharda Shantaram Prabhale - Appellant
Versus
Narendra Shantaram Prabhale and Ors. - Respondents
For the Appellant (through Legal Aid) :- Ms. V.S. Nikam, Advocate.
For the Respondent No. 1 None Present :- though served.
For the Respondent No. 2 :- is deleted.
For the Respondent No. 3 :- Mr. Konde Deshmukh, Advocate.
For the Respondent No. 4 :- Ms. Usha Purohit, AGP.
Civil Procedure Code, 1908 Section 9
Cases Referred :
Meher Singh v. Deepak Sahny, 1998 (4) All. MR. 536.
JUDGMENT
H.L. Gokhale, J. - This case unfolds the story of an unfortunate village woman who was first deceived
by her husband by not disclosing his prior relationship with another woman and subsequently leaving
her with a daughter and denying a roof over her head. What is worse is that her difficulties are
accentuated by a Civil Judge throwing away her case at the threshold by taking a technical view
totally unsustainable at law.
2. This appeal seeks to challenge the judgment and order of a learned Judge of the City Civil Court
dated 8th January, 1999 in Suit No. 811 of 1980 rejecting the plaint on the ground that the dispute
therein is entertainable only by the Family Court in view of Section 7(1), Explanation (c) of the Family
Courts Act, 1984.
3. The facts leading to this appeal and as narrated in the plaint are as follows:-
The appellant claims to be the lawfully wedded wife of one Shantaram Laxman Prabhale. Both
hail from Wai Taluka of District Satara. At the time of their marriage the appellant was given to
understand that this Shantaram is a widower with two minor children yet, in spite of her
resistence she was pressurised to marry him. The marriage took place on 27.6.1970 at Surul
Kavathe according to Hindu rites. This Shantaram then brought the appellant to Mumbai where

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 LAW FINDER
Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

they stayed with his mother in Sunder Galli, Byculla. After a few days, he induced his two
children to her.
4. After about eight months or so, Shantaram moved the appellant to another residence in Jamnadas
Building at Byculla. The appellant was shocked to see another woman staying in that very house
having five children. Subsequently she was given to understand that Shantaram had a prior
relationship with her (though they were not lawfully wedded) and had five children from that
relationship: In the meanwhile the appellant gave birth to two children. The first one died, the second
one of whom a daughter by name Rajashree alone survived. The appellant had no option and she
continued to live with Shantaram in those circumstances.
5. Jamnadas Building where Shantaram and appellant lived became dilapidated. It was reconstructed
by the Repairs Board. Appellant's name was recorded in the list of occupants. After reconstruction, it
was named as "Shivneri" and Shantaram was given two rooms therein bearing Nos. 136 and 137. The
appellant with her daughter went back to the reconstructed building and started residing there.
Thereafter Shantaram started disowning her and attempted to throw her out of those rooms leading
to police complaint by her.
6. It is material to note that in paras 8 and 10 of the plaint it is stated that Shantaram also filed a
cross case against her bearing Case No. 55/S of 1979. Relevant part of para 10 of the plaint reads as
follows :
"10. The defendant is trying his very best to oust the plaintiff from the suit premises forcibly and
illegally. In this plan the defendant is aided and abetted by his children, his mother and the
other woman. They all harass the plaintiff in all manner of ways but the plaintiff has been
bearing all and not yielding any ground. The plaintiff has filed several complaints of assault and
physical injury and attempts of ousting her from the suit premises against the said persons to the
police but the police have not taken any action on the ground that it is a family matter. The
defendant also filed a false case bearing No. 55/S of 1979 against the plaintiff but the plaintiff
withstood the ground and not left the suit premises. The defendant has now at the end of
January, 1980 withdrawn the said case as he feared cross-examination on this point..."
7. The appellant fearing that she would be evicted from those two rooms, filed the above suit on
7.2.1980 against Shantaram seeking a declaration that she was entitled to use and occupy and stay in
the suit premises, namely Room Nos. 136 and 137, Shivneri Building. As a proof of her marriage and
residence, she relied upon the marriage photographs, the birth certificate of her daughter Rajashree
and her Ration Card among other documents. In the suit, she also prayed for injunction and there was
an ad interim injunction in her favour during the pendency of the suit.
8. Shantaram died on 12.5 1980 and the appellant amended the plaint and brought his heirs including
the other lady Kusum and her children on record. It appears that a son of this Shantaram from the
other lady, i.e. Narendra (respondent No. 1 herein) alone filed written statement on 13.12.1990
through one Advocate G.H. Kaduskar and contested the suit. The others left the suit premises and
hence were deleted. He raised an objection to the maintainability of the suit on the ground that this
was a matrimonial dispute and it must be filed in the Family Court. However, what is material to note
in that with reference to the above referred para No. 10 this Narendra states as follows :-
".... It is true that the original defendant has filed the complaint against the plaintiff, but it is
categorically denied that it was a false complaint. This defendant denied that the defendant has
withdraw the said case as he feared the cross-examination..."

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
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9. The learned Judge who heard the matter read the plaint and written statement and rejected the
plaint without recording any evidence. The learned Judge of the City Civil Court who heard the matter
took the view that this was a suit between the parties to a marriage with respect to the property of
the parties covered under section 7(c) of the Family Courts Act, 1984 and rejected the plaint by his
judgment and order dated 28.1.1999. It is the submission of the appellant that thereafter she is being
prevented from entering into the premises and was required to stay in the verandah of the chawl.
Being aggrieved by the judgment and order of the Trial Court, the present appeal has been filed on
3.5.1999. Ms. Nikam had appeared for the appellant in the City Civil Court by way of legal aid and she
has continued to appear here in this appeal. Initially the above referred Narendra was alone joined as
respondent in this appeal. When the appeal came up for consideration, Ms. Nikam sent a telegram to
Advocate Kaduskar who was appearing for this Narendra. A copy of that telegram is tendered on
record with an affidavit. Ms. Nikam states that Advocate Kaduskar appeared before Radhakrishnan, J.
on 14.5.1999. The telegram called upon him to appear before Radhakrishnan, J. on 14th May, 1999. Ms.
Nikam states that Advocate Kaduskar appeared on that date and stated that he had no instructions to
appear. Thereafter it was learnt that Narendra had left these tenements and some others were staying
therein. There is also an affidavit of service affirmed on 21st May, 1999 which records that one
Madhurnati Laxman Gadappa was found in occupation of Room No. 137 and Room No. 136 was found
to be locked. The appellant also got an information that one Mohan Potian was supposed to be staying
in the other Room No. 136 and hence she joined him as respondent in this appeal. Mumbai Building
Repair and Reconstruction Board is also joined as respondent since the building belongs to that Board.
The appellant had complained to them against this sub-letting.
10. Thus as far as this appeal is concerned, it is now having four respondents, i.e. Narendra Shantaram
Prabhale, Mohan Potian, Smt. Madhumati Laxman Gadappa and Mumbai Building Repair and
Reconstruction Board. Respondent No. 1 has not appeared though served. Mr. Konde
Deshmukhappearing for respondent No. 3 has filed an affidavit stating that both Room Nos. 136 and
137 are with her and whosoever were occupying Room No. 136 (including the above Mohan) earlier
were through her permission and that she has taken these rooms from the heirs of Shantaram for
consideration. One is not very sure about the correct surname of this Mohan. The title of the present
proceedings states that his name is "Mohan Potian" whereas Ms. Nikam has drawn my attention to the
electoral roll issued as on 27th January, 1997 which shows the names of occupants of Room No. 136 as
"Mohan Navtial and Pushpa Navtial". This Mohan Potian (or Navtial) has also not appeared in the
present matter. In view of the affidavit of Madhumati (respondent No. 3) that both the rooms are
under her control. Ms. Nikam has sought to delete respondent No. 2. Leave is granted. Ms. Usha
Purohit, A.G.P. has appeared for respondent No. 4. Ms. Nikam has tendered copies of plaint and
written statement on record. The only point to be considered is whether the learned Judge was right
in rejecting the plaint. Hence, with the consent of all the learned Counsel the appeal is finally heard.
Since all the relevant pleadings have been produced (and no evidence was recorded) it is not
necessary to call for the record and proceedings. Paper book is dispensed with since it is a legal aid
matter.
11. Ms. Nikam appearing for the appellant has submitted that the learned Judge of the City Civil Court
has ignored the real nature of the dispute. Though the suit was concerning the right of the appellant
to occupy the suit premises being the wife of original allottee, the essential dispute was concerning
the right of a recorded occupant to stay in a Housing Board accommodation. Ms. Nikam submitted that
as on the date on which the learned Judge passed the impugned order i.e. on 28.1.1999, the husband
of appellant Shantaram had died long back (i.e. on 12.5.1980) and the dispute was between her and
the first respondent who claimed to be his son. That apart, the plaint was being rejected 19 years
after filing of the suit on a jurisdictional issue without recording any evidence. She has proposed to

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 LAW FINDER
Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

amend the rejected suit (if revived) and has tendered a copy of the proposed amendment which she
intends to effect in the suit provided it is revived so that the correct nature of the controversy is
brought to the fore (?). She intends to join Mumbai Housing and Area Development Board and
Madhumati Gadappa as additional defendants. The fact remains that the building belongs to Mumbai
Housing and Area Development Board. There is no right in any of the tenants to transfer the
tenements to anybody else except with prior approval of the Board. This building has been
constructed to occupy those who had been staying in the earlier dilapidated building and obviously
the tenements are not meant for profiteering. In the circumstances, Shantaram or his heirs certainly
could not transfer the tenement to some others for consideration and could certainly not oust his wife
the appellant herein.
12. Mr. Konde Deshmukh on the other hand, submitted that the learned Judge was right in his view
that it was a matrimonial dispute. He submitted that' respondent No. 3 had taken the two rooms from
the heirs of Shantaram for consideration. They were bona fide occupants and ought to be protected.
The fact however remains that as of now one room out of these two rooms is in occupation of
Madhumati Gadappa who is staying in Room No. 137. She claims to have acquired Room No. 136 also
from the heirs of Shantaram, but today the room is not in her occupation. Mr. Deshmukh has filed an
affidavit of one Basantlal Vaishya, who, in the inspection by the Housing Board, was found occupying
this Room No. 136. He has stated that he has taken this room for a temporary period of 2 months
from respondent No. 3. He has further stated that before 10th July, 1999 he was staying with his
cousin brother one Mishrilal Vaishya who is supposed to be staying on the first floor of that building.
He has stated that he intends to hand over possession of this room to Madhumati after expiry of two
months, i.e. by 10th September, 1999. The purpose of occupying this room is stated to be that the
daughter of his cousin brother has come for delivery and, therefore, he has shifted to this room.
13. Mr. Purohit, learned A.G.P. appearing for respondent No. 4, has drawn my attention to two
inspection reports dated 11th August, 1999 which are tendered on record. They show that Madhumati
stays in Room No. 137 and as far as Room No. 136 is concerned, the following 5 persons are staying
therein.

1. Basantlal Vaishya aged - Husband

41
2. Savitridevi aged - Wife
Vaishya 36
3. Seema Vaishya aged - Daughter
10
4. Sanjay Kumar aged - Son
Vaishya 7
5. Sangeeta Vaishya aged - Daughter
13
She states that both Madhumati and this Vaishya family are totally unauthorised and the tenement
continues in the name of Shantaram, though since deceased. Mr. Deshmukh states across the Bar that
though Mr. Vaishya needs two months' time, he may vacate the premises before that also. This period
of two months expires on 10th September, 1999, Mr. Deshmukh states that he leaves it to this Court as
to when the Vaishya family should vacate the room. Ms. Nikam points out that she is having in her
possession the rent receipts of the suit premises. Admittedly none of the family members of
Shantaram are staying there and she has prima facie evidence that she is Shantaram's wife. She,

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 LAW FINDER
Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

therefore, submits that the impugned order sought to be set aside and she should be put back into
possession. She submits that these realities of the situation which have now come on the record have
to be addressed even at this stage. Ms. Nikam has also applied for appointment of a Receiver for these
Room Nos. 136 and 137 through Civil Application No. 3180 of 1999. Her submission is that admittedly
the appellant is being deprived of her right to stay in the two rooms which belong to her husband.
She submits that the rooms be restored to her through the Receiver.
14. There is much force in the submissions of Ms. Nikam. As disclosed in the narration from the plaint
the appellant has strong prima facie material to show that she was the lawfully wedded wife of
Shantaram. She has her marriage photographs, her daughter's birth certificate, ration card. Her
husband did not file any written statement. Besides the half-hearted denial of above quoted para No.
10 of the plaint by Narendra in fact indicates that she was very much there in the rooms earlier.
15. section 7 of the Family Courts Act, 1984 reads as follows :
"7. Jurisdiction-(1) Subject to the other provisions of this Act, a Family Court shall,-
(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate
Civil Court under any law for the time being in force in respect of suits and proceedings of the
nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District
Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction
of the Family Court extends.
Explanation - The suits and proceedings referred to in this sub-section are suits and proceedings
of the following nature, namely,-
(a) a suit or proceeding between the parties to a marriage for decree of a nullity marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal right or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the
matrimonial status of any person;
(c) a suit for proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital
relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access
to, any minor.
(2) Subject to the other provisions of this Act a Family Court shall also have and exercise,-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to
order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2
of 1974); and

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
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(b) such other jurisdiction as may be conferred on it by any other enactment."

The premises concerned are a tenancy in a Housing Board Building. There is an averment in the
plaint that, appellant's name was recorded in the list of occupants at the time of reconstruction. The
dispute concerning appellant's right to stay therein cannot be said to be merely with respect to the
property of the parties to a marriage. Besides when the objection was being decided, the husband was
dead and the person claiming to be his son was raising the objections and the plaint was being
rejected 19 years after institution of the suit without recording any evidence on this preliminary
objection of jurisdiction. The entire approach of the learned Judge is unsustainable in law.
16. What the learned Judge has done is that in view of the written statement he framed the following
issue :-
"Whether the defendant No. 1(c) proves that this Hon'ble Court has no jurisdiction to entertain
and try the present suit as stated in para 1 of the written statement."
The defendant and his Advocate were not present. Yet, the learned Judge has examined the plaint and
then in para 5 of the order came to the conclusion that the suit was between parties to a marriage
with respect to their property. The learned Judge ignored the averments in para 7 of the plaint that
Jamnadas Building had become dilapidated, it was fully reconstructed by the Repair Board and
appellant's name was recorded as an occupant. The appellant was seeking her right to stay in the
premises belonging to Housing Board though the tenancy was in the name of Shantaram. It was not
merely a dispute concerning her residence in the matrimonial home. Besides, when the objection to
jurisdiction was being decided Shantaram was dead and the contestant was Narendra who claimed to
be a son of Shantaram. From para 5 of the order it is seen that appellant's Advocate had contended
that defendant was a trespasser. The learned Judge took the view that in that case the Court-fee
payable would be on Rs. 36,000/-. The order records that appellant's Advocate had moved draft
Chamber Summons for that. Surely, it needed to be considered before rejecting the plaint. Thereafter
it further records that appellant's Advocate contended that she had the status of a tenant (in view of
Shantaram having died and her name having been recorded as occupant as contended in para 7 of
the plaint). She should have been called upon to pay extra Court-fee and the matter should have been
adjourned to examine her Chamber Summons. On the plea of tenancy, the learned Judge has
commented that Small Cause Court would have jurisdiction while ignoring that the premises were that
of Mumbai Housing and Area Development Board and would be outside the Rent Act. It appears that
the learned Judge was in a hurry. In para 7, he has rejected the plaint by holding that suit was barred
by law though he referred to Rule 11(c) which is about failure to pay requisite Court, fee when
required to pay it. Even if one considers it as an order under Rule 11(d) of Order 7, the issue framed
was that of jurisdiction and if the suit was being rejected on that issue of jurisdiction, the appellant
ought to have been permitted to lead evidence on that issue in view of the facts narrated above.
17. When a Civil Judge is called upon to decide the question of ouster of his jurisdiction he is expected
to examine all the aspects of the case carefully. A finding of lack of jurisdiction non-suit a litigant and
hence the same has to be done after giving proper opportunity to the plaintiff including leading of
evidence if necessary as has been held by a Division Bench of this Court in the case of Meher Singh
v. Deepak Sahny, 1998 (4) All. MR. 536 , "Para 10... As stated earlier, Section 9A is a departure
from the procedure prescribed under Order XIV Rule 2 of the Civil Procedure Code for achieving that
object. For determination of the preliminary issue which may be a mixed question of law and facts,
the parties are required to lead evidence. Without permitting the parties to lead evidence, the issue of
jurisdiction cannot be finally determined..."Even on reading section 7 of the Family Courts Act, it is
clear that the Family Court is to have the jurisdiction in disputes which are essentially of a

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

matrimonial nature. The phrase "property of the parties or either of them" will have to be read in
that context. In the present case, we are concerned with the right of a wife who claims to be
recorded as an occupant to stay in the tenement belonging to the Housing Board where the tenancy
stands in the name of her husband. Though the Statute expects all disputes concerning matrimonial
matters to go to the Family Court, it is difficult to emphatically conclude that it excludes the
jurisdiction of a Civil Court in a controversy of the present type of implication. It was a mixed
question of facts and law and there were number of aspects of this issue which had to be gone into
and decided after permitting the parties to lead evidence. That apart, the plaint was being rejected 19
years after the filing thereof in this manner on a preliminary objection with respect to jurisdiction.
The better course would have been for the Judge to decide the matter in its entirety inasmuch as it
had been pending for about 19 years. But even if a party wanted the jurisdictional issue to be decided
(which party was absent when the issue was decided), the learned Judge ought to have given an
opportunity to the appellant to lead evidence on this issue. The order passed does not disclose proper
application of mind and circumspection which is expected of a Civil Judge while concluding the
jurisdictional issue against the plaintiff thereby non-suited him or her.
18. Now, what is material to note is that in the meanwhile, some other families have been induted in
the suit premises by this Narendra. On the face of it, either this Madhumati Gadappa or this Vaishya
family or the earlier Mohan Potian (or Navtial) do not have any prima facie right to occupy these
premises. No agreement or payment is brought to my notice. The fact however remains that this
Madhumati Gadappa claims to be staying in the other room, i.e. Room No. 137 for long time. This
being the position, the appropriate order would be that the Receiver attached to this Court be
appointed as Receiver to take charge of both these rooms and the possession of Room No. 136 ought to
be restored to the appellant and Madhumati be continued to occupy Room No. 137 on both signing
necessary agreement of agency with the Receiver. This will make both of them agents of the Receiver
in occupation of the premises though the premises will remain in the custodia legis of the Receiver.
19. In the circumstances, this appeal is allowed and the judgment and order dated 28.1.1999 are set
aside and the Suit No. 811 of 1980 is restored to the file of the City Civil Court. The appellant will be
at liberty to apply to the City Civil Court to amend the plaint in terms of the draft handed in.
Thereafter, on completing service and framing issues and recording evidence the suit will be decided.
In the meanwhile, Civil Application No. 3120 of 1999 is granted herewith and the Court Receiver is
appointed as Receiver for both rooms till the disposal of the revived suit without any royalty or
security charges. Though the initial deposit of Rs. 500/- shall be paid by the appellant to which she is
agreeable. The Receiver will take charge of Room No. 136 from the Vaishya family or whosoever is
found therein and hand it over to the appellant on her signing agency agreement with the Receiver.
The Receiver will continue the occupation of Madhumati Gadappa in Room No. 137 on her signing the
agency agreement with her. Appellant and Madhumati shall not sublet the room in any manner
whatsoever. The Reeciver to act within two weeks of lodging a copy of this order authenticated by the
Sheristedar of this Court.
20. Ms. Purohit informs that the Housing Board has been issuing only one receipt for both the rooms.
The appellant agrees and is permitted to pay the monthly outgoings for both the rooms to the Board
directly. The receipt though issued in the name of Shantaram Prabhale (since deceased) will be
handed over to her. Mr. Konde Deshmukh states that the respondent No. 3 Mathumati is willing to pay
half the charges. She may pay the amount to the appellant or deposit it in the City Civil Court
wherefrom the appellant will withdraw the same without prejudice.
21. Ms. Purohit states that the occupation of Madhumati Gadappa has been an unauthorised one and

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
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the Board has already issued notices. Mr. Deshmukh requests that looking to the facts of the case that
she has been residing in one room for long time, the Board may as well examine whether the other
room may be regularised in the name of Madhumati Gadappa. She has already applied for
regularisation.
22. The appeal and the civil application are, therefore, allowed in the above terms, though without
any order as to costs.
23. Mr. Deshmukh applies for stay of this order. Ms. Nikam opposes this request. Looking to the facts of
the above controversy, namely, that Madhumati Gadappa has been staying in Room No. 137 only and
which possession is not being disturbed, the request for stay is rejected. She has sublet the other room
to Vaishya family which is presently staying there. Vaishyas have agreed to vacate Room No. 136 and
in that room the appellant is being inducted. Thus, there is no prejudice to respondent No. 3.
24. Parties and the Receiver to act on the copy of this order authenticated by the Sheristedar of this
Court. Certified copy is expedited.
Appeal allowed.

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