# SAU RAJANI v. SAU SMITA & ANR

- **Citation:** [2022] 16 S.C.R. 126
- **Court:** Supreme Court of India
- **Decided:** 2022-08-08
- **Case number:** Civil Appeal No. 5216 of 2022
- **Bench:** Dr Dhananjaya Y Chandrachud, A S Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sau-rajani-v-sau-smita-anr-35577
- **Pages:** 13

## Headnote

Code of Civil Procedure, 1908: s.9 - Bar of jurisdiction of
civil court - Maharashtra Housing and Area Development Act, 1976
(MHADA) - ss.71, 177 and 66(1)(a)(iv) - Appellant claimed to be
in possession of the residential tenement - The first respondent is
stated to be in occupation of a ground floor tenement in the same
building - Appellant alleged that the first respondent has made illegal
and unauthorized construction in open vacant site situated in the
side of the block which has affected her easements including
privacy, light, air, water supply - Appellant instituted regular civil
suit seeking removal of illegal construction, grant of permanent
prohibitory injunction restraining first respondent-defendant from
making any construction over the open site and restoration of water
connection - First respondent filed written statement contending
that the civil court does not have jurisdiction to entertain the suit
under s.71 r/w s.177 of the MHADA - Civil Judge dismissed the
challenge to the jurisdiction and decreed the suit - District Court
affirmed the finding of the civil judge - High Court, however, allowed
the second appeal filed by the respondent and held that the suit
was barred in terms of the provisions of sections 71 and 177 of the
MHADA - Held: The objective of the bodies and authorities
constituted under the MHADA is to ensure repairing and
reconstructing buildings to provide housing - The competent
authority under the Act (MHADA) has jurisdiction to order the
eviction in terms of the provisions of s.66 but that was not the relief
claimed by the plaintiff-appellant in the suit - Thus, the reliefs
claimed by the appellant were beyond the scope of the Act - Suit of
the nature filed by the appellant would be maintainable before the
civil court and would not be barred by s.71 or s.177 of the MHADA.
[2022] 16 S.C.R. 126
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Allowing the appeal, the Court
HELD: 1. Section 71 of the Act provides for the bar of
jurisdiction of civil courts. In terms of the provision, no civil court
shall have jurisdiction to entertain any suit or proceedings (i) "in
respect of the eviction of any person from any Authority premises
under this Chapter"; or (ii) for the recovery of the arrears of
rent, compensation or damages for the use and occupation of
such premises; or (iii) in respect of any order made or to be made
or any action taken or to be taken by the competent authority in
exercise of the power conferred by or under the Chapter; or (iv)
to grant an injunction in respect of such order or action. Section
177 bars the jurisdiction of a civil court in respect of any matter
which the Authority or Tribunal is empowered by or under the
Act, to determine. Similarly, no injunction or stay can be granted
by a Court or other authority in respect of any action taken or to
be taken in pursuance of the power conferred or duty imposed
by or under the Act. [Para 11][134-C-E]
2. Section 66(1)(b) of MHAD Act entrusts the competent
authority with a power to order eviction on the grounds which
are set out in the provision. Under clause (b), where a person is
in unauthorized occupation of any 'Authority premises', the
competent authority may proceed to order the person to be
evicted from the premises. [Para 12][134-F, H]
3. Under Section 9 of CPC, the civil court has the jurisdiction
to try all suits of a civil nature, except those in respect of which
the jurisdiction is barred either expressly or impliedly by a specific
provision of law. The objective of the bodies and authorities
constituted under the Act is to ensure repairing and
reconstructing buildings to provide housing. Undoubtedly, the
competent authority has the jurisdiction to order eviction in terms
of the provisions of Section 66. But that is not the frame of the
suit or the relief which has been claimed by the appellant in the
suit. The reliefs sought by the appellant in the plaint are: (i) the
removal of the unauthorized construction; (ii) a permanent
prohibitory in

## Text

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SUPREME COURT REPORTS
[2022] 16 S.C.R.
SAU RAJANI
v.
SAU SMITA & ANR
(Civil Appeal No. 5216 of 2022)
AUGUST 08, 2022
[DR DHANANJAYA Y CHANDRACHUD AND
A S BOPANNA, JJ.]
Code of Civil Procedure, 1908: s.9 - Bar of jurisdiction of
civil court - Maharashtra Housing and Area Development Act, 1976
(MHADA) - ss.71, 177 and 66(1)(a)(iv) - Appellant claimed to be
in possession of the residential tenement - The first respondent is
stated to be in occupation of a ground floor tenement in the same
building - Appellant alleged that the first respondent has made illegal
and unauthorized construction in open vacant site situated in the
side of the block which has affected her easements including
privacy, light, air, water supply - Appellant instituted regular civil
suit seeking removal of illegal construction, grant of permanent
prohibitory injunction restraining first respondent-defendant from
making any construction over the open site and restoration of water
connection - First respondent filed written statement contending
that the civil court does not have jurisdiction to entertain the suit
under s.71 r/w s.177 of the MHADA - Civil Judge dismissed the
challenge to the jurisdiction and decreed the suit - District Court
affirmed the finding of the civil judge - High Court, however, allowed
the second appeal filed by the respondent and held that the suit
was barred in terms of the provisions of sections 71 and 177 of the
MHADA - Held: The objective of the bodies and authorities
constituted under the MHADA is to ensure repairing and
reconstructing buildings to provide housing - The competent
authority under the Act (MHADA) has jurisdiction to order the
eviction in terms of the provisions of s.66 but that was not the relief
claimed by the plaintiff-appellant in the suit - Thus, the reliefs
claimed by the appellant were beyond the scope of the Act - Suit of
the nature filed by the appellant would be maintainable before the
civil court and would not be barred by s.71 or s.177 of the MHADA.
[2022] 16 S.C.R. 126
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Allowing the appeal, the Court
HELD: 1. Section 71 of the Act provides for the bar of
jurisdiction of civil courts. In terms of the provision, no civil court
shall have jurisdiction to entertain any suit or proceedings (i) "in
respect of the eviction of any person from any Authority premises
under this Chapter"; or (ii) for the recovery of the arrears of
rent, compensation or damages for the use and occupation of
such premises; or (iii) in respect of any order made or to be made
or any action taken or to be taken by the competent authority in
exercise of the power conferred by or under the Chapter; or (iv)
to grant an injunction in respect of such order or action. Section
177 bars the jurisdiction of a civil court in respect of any matter
which the Authority or Tribunal is empowered by or under the
Act, to determine. Similarly, no injunction or stay can be granted
by a Court or other authority in respect of any action taken or to
be taken in pursuance of the power conferred or duty imposed
by or under the Act. [Para 11][134-C-E]
2. Section 66(1)(b) of MHAD Act entrusts the competent
authority with a power to order eviction on the grounds which
are set out in the provision. Under clause (b), where a person is
in unauthorized occupation of any 'Authority premises', the
competent authority may proceed to order the person to be
evicted from the premises. [Para 12][134-F, H]
3. Under Section 9 of CPC, the civil court has the jurisdiction
to try all suits of a civil nature, except those in respect of which
the jurisdiction is barred either expressly or impliedly by a specific
provision of law. The objective of the bodies and authorities
constituted under the Act is to ensure repairing and
reconstructing buildings to provide housing. Undoubtedly, the
competent authority has the jurisdiction to order eviction in terms
of the provisions of Section 66. But that is not the frame of the
suit or the relief which has been claimed by the appellant in the
suit. The reliefs sought by the appellant in the plaint are: (i) the
removal of the unauthorized construction; (ii) a permanent
prohibitory injunction restraining the defendants from
constructing over the open site and causing 'nuisance'; and (iii)
SAU RAJANI v. SAU SMITA & ANR.
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restoration of the water connection as it was prior to the
construction. The appellant instituted the suit for injunction
because her easements were infringed by the illegal construction
which the first respondent had erected on the open space. The
reliefs claimed by the appellant are beyond the scope of the Act.
A suit of this nature will be maintainable before the civil court
and would not be barred by Section 71 or Section 177 of the Act.
[Paras 14 and 16][135-C; 137-C-F]
Dhulabhai v. State of Madhya Pradesh AIR 1969 SC
78 : [1968] 3 SCR 662 - followed.
Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8
SCC 726 : [2010] 10 SCR 945 - relied on.
Case Law Reference
[1968] 3 SCR 662
followed
Para 14
[2010] 10 SCR 945
relied on
Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5216
of 2022.
From the Judgment and Order dated 11.12.2019 of the High Court
of Judicature at Bombay, Nagpur Bench at Nagpur in Second Appeal
No. 111 of 2004.
Somiran Sharma, Adv. for the Appellant.
Satya Kam Sharma, Ms. Anagha S. Desai, Siddharth Gautam,
Sanjay Kharde, Sunil Kumar Verma, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. By a judgment dated 11 December 2019, a Single Judge of the
Nagpur Bench of the High Court of Judicature at Bombay, held in the
course of deciding a second appeal under Section 100 of the Code of
Civil Procedure 19081 that the suit instituted by the appellant is barred
by Sections 71 and 177 of the Maharashtra Housing and Area
1 "CPC"
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Development Act 19762.The High Court reversed concurrent findings
of the trial court in the suit and of the first appellate court.
3. In order to appreciate the nature of the controversy, it would, at
the outset, be necessary to advert to the plaint in the suit - Regular Civil
Suit No 775 of 1993- instituted by the appellant before the Court of the
Civil Judge (Junior Division), Amravati. The appellant has pleaded that
the second respondent (Amravati Housing and Area Development Board)
allotted Block No 4/6 situated on the first floor at Tope Nagar, Amravati
to her on 16 July 1986. The appellant claims to be in possession of the
residential tenement. The first respondent is stated to be in occupation
of a ground floor tenement in the same building bearing Block No 4/2.
According to the appellant, the first respondent made an illegal and
unauthorized construction in an open vacant site situated in the northern
and eastern side of the block. This has been depicted in a plan, which is
annexed to the plaint. The first respondent is alleged to have constructed
four rooms, as a consequence of which the appellant claims that her
easements have been affected. The appellant has alleged the following
disturbances to her easements:
i.
The privacy, light, and air of the appellant's block have been
affected;
ii.
The first respondent is alleged to have constructed a stair
case to gain access to the terrace, as a consequence of which
the appellant's privacy is stated to be disturbed;
iii. The first respondent has removed a water pipeline, as a result
of which the water supply to the property of the appellant is
affected; and
iv. The first respondent has locked the service line for the cleaning
of the septic tank.
4. It is contended by the appellant that she had raised complaints
against the illegal construction by the first respondent to the second
respondent and that she also issued notices to the first and second
respondents for removing the construction. The first and the second
respondents did not respond to the complaints and notices. The appellant
instituted a suit seeking the following reliefs:
SAU RAJANI v. SAU SMITA & ANR.
[DR DHANANJAYA Y CHANDRACHUD, J.]
2 "the Act"
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"PRAYER
It is, therefore, most humbly prayed that this Hon'ble Court
may kindly be pleased to pass a decree in mandatory forms
giving directions to both the defendants to remove the illegal
and unauthorized construction made by the defendant no. 1
on the open site, which is situated towards the east and
north to the plaintiffs and defendants No. 1's tenant as shown
by letters A B C D in the map and further be pleased to
grant permanent prohibitory injunction restraining the
defendants from making any constructions over this open
site and be directed to keep open the said open site as it
was.
2.
The defendants be directed to restore the water connections
as it was prior to its removal for the plaintiffs tenement and
further be directed to grant to temporary injunction to
remove by obstruction which have been created in the
service line and the defendant be restrained by grant of
permanent injunction in the service line.
3.
The defendant no. 1 further be restrained by grant of
permanent injunction from making encroachment or making
any construction in this open site and causing any nuisance
to the plaintiff in respect of to occupy her tenement on first
floor.
4.
Costs of this suit be added on the defendants."
5. The first respondent filed a written statement contending that
the civil court does not have the jurisdiction to entertain the suit under
the provisions Section 71 read with Section 177 of the Act. The Civil
Judge (Junior Division), Amravati held that (i) the first respondent made
an unauthorized construction; (ii) the first respondent shifted the water
pipeline in the course of the illegal construction, resulting in shortage of
water to the appellant; (iii) the suit is maintainable since the dispute does
not relate to the business of the co-operative society but the legal rights
of the appellant. The following order was passed, while decreeing the
suit:
"Plaintiff's suit is hereby decreed.
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Defendants are hereby directed to remove the illegal and
unauthorized construction made by the defendant No. 1 on the
open space towards the eastern and northern side of Block No.4/
2 which is shown in the map which is produced along with
inspection report Ex. 73 by letters A B C D A and D H I J K L D.
Both the defendants are hereby directed to restore the water
connection to the plaintiff's house by removing the obstructions
which are made in the service line.
Defendant No. 1 or anybody on her behalf is hereby permanently
restrained from making encroachment as well as making any
construction on the open site causing any nuisance to the plaintiff's
tenement.
Plaintiff and defendant are residing in the same building. Taking
into consideration the relationship in between them, parties to bear
their own costs, if any.
The map which is produced along with inspection Note Ex. 73
will form the part of the decree.
Decree be drawn accordingly."
6. The judgment of the trial court was assailed by the first
respondent under Section 96 of the CPC in Regular Civil Appeal No 37
of 1999, which was dismissed on 21 November 2003. The District Court
affirmed the finding of the trial Judge that it had the jurisdiction to entertain
the suit. The District Judge held that the appellant - who is the plaintiff
in the suit - is affected by the encroachment which has been made by
the first respondent on premises belonging to the Authority. In the view
of the District Judge, since the individual rights of the appellant were
affected by the unauthorized construction, the suit was maintainable and
was not barred by the provisions of Section 71. It was observed:
"20. [...] Due to the construction made by the defendant no. 1,
the plaintiff had lost her right to privacy so also the drainage line
and water pipe line to her premises have been damaged and
destroyed, which has put her to material loss, We have come to
the conclusion that plaintiff has sufficient[ly] proved that her
valuable rights have been infringed due to the construction made
by defendant no.1. So when the rights of plaintiff are infringed,
she is certainly entitled to seek relief from the Civil Court to get
SAU RAJANI v. SAU SMITA & ANR.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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reinstated her rights. [...] So this is a case in which plaintiff is
interested in safe guarding her right and to get them restored. The
removal of encroachment is a consequence thereof. So we cannot
construe the present suit as a suit for removal of encroachment
on the authority premises, as envisaged under MHADA Act so
as to hold that the suit is barred under Section 71 or 177 of the
MHADA Act."
7. The Single Judge of the Bombay High Court allowed the appeal
against the judgment of the District Judge holding that the suit was barred
in terms of the provisions of Sections 71 and 177 of the Act. Referring to
Section 66(1)(a)(iv), the High Court observed that the Competent
Authority has the power to evict persons from Authority premises if it is
satisfied that material alterations have been made without its previous
permission. The High Court held that since the remedy of eviction is
provided for in the Act, the Civil Court does not have jurisdiction to
entertain a suit on a cause of action on which the Competent Authority
is empowered to take action.
8. We have heard Mr Somiran Sharma, counsel appearing on behalf
of the appellant, Mr Satya Kam Sharma, counsel appearing on behalf of
the first respondent and Mr Sanjay Kharde, counsel appearing on behalf
of the second respondent.
9. Sections 71 and 177 are extracted below:
"71. Bar of jurisdiction of civil courts.-No civil court
shall have jurisdiction to entertain any suit or proceeding in
respect of the eviction of any person from any Authority
premises under this Chapter, or the recovery of the arrears of
rent, compensation, amount or damages for use and occupation
of such premises, or in respect of any order made or to be made
or any action taken or to be taken by the Competent Authority or
the appellate officer in the exercise of any power conferred by or
under this Chapter, or to grant any injunction in respect of such
order or action.
177. Bar of jurisdiction.-Save as otherwise expressly
provided in this Act, no civil court shall have jurisdiction in
respect of any matter which the Authority or the Tribunal is
empowered by or under this Act, to determine; and no
injunction or stay shall be granted by any court or other authority
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in respect of any action taken or to be taken in pursuance of any
power conferred or duty imposed by or under this Act."
(emphasis supplied)
10. Section 66 forms a part of Chapter VI which is titled "Power
to evict persons from authority premises and to recover dues". Subsection (1) of Section 66 empowers the competent authority to order a
person who is in occupation of the whole or any part of the premises to
be evicted for unauthorized occupation. Section 66(1) is in the following
terms:
"66. Power to evict certain persons from Authority premises.
(1)
If the Competent Authority is satisfied-
(a)
that the person authorised, to occupy any Authority premises
has-
(i)
not paid rent or compensation or amount lawfully due
from him in respect of such premises for a period of
more than two months, or
(ii)
sub-let, without the previous permission of the
Authority, the whole or any part of such premises, or
(iii) committed, or is committing any act which is
destructive or permanently injurious to such premises,
or
(iv) made, or is making, material addition to, or
alteration in, such premises without the previous
permission of the Authority, or
(v) otherwise acted in contravention of any of the terms,
express or implied, under which he is authorised to
occupy such premises, or
(vi) failed to vacate the premises required by the Authority
for the purpose of implementing any plan or project
for the sale of tenements and to accept the alternative
accommodation offered by the Authority.
(b)
that any person is in unauthorised occupation of any Authority
premises, the Competent Authority may, for reasons to be
recorded in writing, by notice served (i) by post, or (ii) by
SAU RAJANI v. SAU SMITA & ANR.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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affixing a copy of it on the outer door or some other
conspicuous part of such premises, or (iii) in such other
manner as may be prescribed, order that person, as well as
any other person, who may be in occupation of the whole
or any part of the premises, to vacate the premises in
unauthorised occupation, within 24 hours of the date of
service of notice, and in any other case within a period of
seven days of the date of such service."
(emphasis supplied)
11. Section 71 provides for the bar of jurisdiction of civil courts. In
terms of the provision, no civil court shall have jurisdiction to entertain
any suit or proceedings (i) "in respect of the eviction of any person from
any Authority premises under this Chapter"; or (ii) for the recovery of
the arrears of rent, compensation or damages for the use and occupation
of such premises; or (iii) in respect of any order made or to be made or
any action taken or to be taken by the competent authority in exercise of
the power conferred by or under the Chapter; or (iv) to grant an injunction
in respect of such order or action. Section 177 bars the jurisdiction of a
civil court in respect of any matter which the Authority or Tribunal is
empowered by or under the Act, to determine. Similarly, no injunction or
stay can be granted by a Court or other authority in respect of any
action taken or to be taken in pursuance of the power conferred or duty
imposed by or under the Act.
12. Section 66(1)(b) of MHAD Act entrusts the competent
authority with a power to order eviction on the grounds which are set
out in the provision. Among them in sub-clauses (iii), (iv) and (v) of
clause (a) of sub-section (1) of Section 66 are:
(a) The commission of an act which is destructive of or
permanently injurious to the premises;
(b) Making a material addition or alteration to the premises without
prior permission; and
(c) Acting in contravention of the terms on which a person is
authorized to occupy the premises.
Under clause (b), where a person is in unauthorized occupation
of any 'Authority premises', the competent authority may proceed to
order the person to be evicted from the premises.
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13. The appellant did not seek the eviction of the first respondent
in the suit. On the contrary, the plaint proceeds on the basis that both the
appellant and the first respondent are allottees under the second
respondent. The plea against the first respondent is that she has made
an unauthorized construction of rooms on a vacant site, as a result of
which the access to light and air, and the right to privacy of the appellant
have been affected. Besides this, it has been submitted that the first
respondent has shifted a water line and caused an obstruction to be
made to the drainage line in the premises.
14. Under Section 9 of CPC, the civil court has the jurisdiction to
try all suits of a civil nature, except those in respect of which the jurisdiction
is barred either expressly or impliedly by a specific provision of law. In
Dhulabhai v. State of Madhya Pradesh3, a Constitution Bench laid
down the law on ouster of jurisdiction of civil courts. Chief Justice M
Hidayatullah writing for the Bench laid down the principles on bar of
jurisdiction of the civil courts as follows:
(1) Where the statute gives a finality to the orders of the
special Tribunals the civil courts' jurisdiction must be held to be
excluded if there is adequate remedy to do what the civil courts
would normally do in a suit. Such provision, however, does not
exclude those cases where the provisions of the particular Act
have not been complied with or the statutory Tribunal has not
acted in conformity with the fundamental principles of judicial
procedure.
(2) Where there is an express bar of the jurisdiction
of the court, an examination of the scheme of the particular
Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the
jurisdiction of the civil court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that all
questions about the said right and liability shall be determined by
SAU RAJANI v. SAU SMITA & ANR.
[DR DHANANJAYA Y CHANDRACHUD, J.]
3 AIR 1969 SC 78
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the Tribunals so constituted, and whether remedies normally
associated with actions in civil courts are prescribed by the said
statute or not.
[...]
(7) An exclusion of the jurisdiction of the civil court is not
readily to be inferred unless the conditions above set down apply.
(emphasis supplied)
15. In Ramesh Gobindram v. Sugra Humayun Mirza4, a twoJudge Bench of this Court observed that the jurisdiction of the civil courts
to try suits of a civil nature is expansive and the onus to prove the ouster
of the jurisdiction is on the party that asserts it. The court observed that
even in cases where the jurisdiction of the civil court is barred by a
statute, the test is to determine if the authority or tribunal constituted
under the statute has the power to grant reliefs that the civil courts
would normally grant in suits filed before them. The relevant observations
are extracted below:
"12. The well-settled rule in this regard is that the civil courts
have the jurisdiction to try all suits of civil nature except those
entertainment whereof is expressly or impliedly barred. The
jurisdiction of the civil courts to try suits of civil nature is very
expansive. Any statute which excludes such jurisdiction is,
therefore, an exception to the general rule that all disputes shall
be triable by a civil court. Any such exception cannot be readily
inferred by the courts. The court would lean in favour of a
construction that would uphold the retention of jurisdiction of the
civil courts and shift the onus of proof to the party that asserts
that the civil court's jurisdiction is ousted."
13. Even in cases where the statute accords finality to the orders
passed by the Tribunals, the court will have to see whether the
Tribunal has the power to grant the reliefs which the civil courts
would normally grant in suits filed before them. If the answer is in
the negative, exclusion of the civil court's jurisdiction would not
be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa
(2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-Judge
Bench of this Court observed: (SCC pp. 302h-303a)
4 (2010) 8 SCC 726; Also see Competent Authority, Calcutta under the Urban Land
(Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542
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"There is a presumption that a civil court has jurisdiction. Ouster
of civil court's jurisdiction is not to be readily inferred. A person
taking a plea contra must establish the same. Even in a case where
jurisdiction of a civil court is sought to be barred under a statute,
the civil court can exercise its jurisdiction in respect of some matters
particularly when the statutory authority or tribunal acts without
jurisdiction."
16. The preamble to the Act states that it is an Act to "unify,
consolidate and amend the laws relating to housing, repairing and
reconstructing dangerous buildings and carrying out improvement works
in slum areas". The scheme of the statute provides that the Board
constituted under the statute would have the power to repair and
reconstruct dilapidated buildings, conduct structural repairs and evict
persons from authority premises, among others. The objective of the
bodies and authorities constituted under the Act is to ensure repairing
and reconstructing buildings to provide housing. Undoubtedly, the
competent authority has the jurisdiction to order eviction in terms of the
provisions of Section 66. But that is not the frame of the suit or the relief
which has been claimed by the appellant in the suit. The reliefs sought
by the appellant in the plaint are: (i) the removal of the unauthorized
construction; (ii) a permanent prohibitory injunction restraining the
defendants from constructing over the open site and causing 'nuisance';
and (iii) restoration of the water connection as it was prior to the
construction. The appellant instituted the suit for injunction because her
easements were infringed by the illegal construction which the first
respondent had erected on the open space. The reliefs claimed by the
appellant are beyond the scope of the Act. A suit of this nature will be
maintainable before the civil court and would not be barred by Section
71 or Section 177 of the Act.
17. For the above reasons, we are of the view that the Single
Judge of the High Court was in error in upholding the plea that there
was a bar of jurisdiction and reversing the findings of the trial Judge and
the first appellate court. Since, however, the Single Judge of the High
Court has only ruled on the absence of jurisdiction, a view which has
been disapproved above, the second appeal is restored to the file of the
High Court for consideration on merits. We allow the appeal and set
aside the impugned judgment and order of the Single Judge of the Nagpur
Bench of the High Court of Judicature at Bombay dated 11 December
SAU RAJANI v. SAU SMITA & ANR.
[DR DHANANJAYA Y CHANDRACHUD, J.]
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
2019 in Second Appeal No 111 of 2004. Second Appeal No 111 of 2004
is restored to the file of the High Court for disposal on merits.
18. Since the appeal pertains to the year 2004, we request the
High Court to take it up for admission expeditiously and to endeavor a
disposal within a period of three months from the date on which a certified
copy of this order is produced before it on the record.
19. Pending application, if any, stands disposed of.
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Preetam Bharti, LCRA)