Order 1

Order Details: Order below exhibit
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
ORDER BELOW EX.NO.5
IN
SUIT NO.2636 OF 2018
Mrs.Mridula Vinay Rathi and others ..Plaintiffs
V/s
Mr.Ram Gopal Gupta and others ..Defendants
Plaintiff no.3 present
Adv. Ms.Neena Shetty for defendants with adv.Sarkhot
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 09/12/2019
ORAL ORDER
1. This is an application for rejection of the plaint u/o 7
Rule 11 of the Civil Procedure Code.
2. Ld. Counsel for the defendants submitted that plaint
is required to be rejected as it does not disclose cause
of action and suit is not maintainable u/s.6 of the
Specific Relief Act. The suit is beyond the scope of
Specific Relief Act as the plaintiff was dispossessed
by filing execution application before the Small
Causes Court. The suit is barred by Resjudicata in as
much as the plaintiffs have filed various applications
for similar prayers before the Small Causes Court and
the Hon'ble High Court and all the applications were
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dismissed on merits. The suit must fail for
misjoinder of the parties as plaintiffs have impleaded
plaintiff no.2 who had expired in the year 2010 and
defendant no.1 who had expired in the year 1996.
The plaintiff's made various applications before the
Small Causes Court which were rejected. The
plaintiff no.3 filed Writ petition No.5292 of 1993
before the Hon'ble High Court challenging the
consent terms dated 23/05/1991. By an order dated
28/08/1994, the Hon'ble High Court dismissed the
same by imposing costs. The plaintiffs have also filed
the Review Petition No.113 and 138 of 2018 before
the Hon'ble High Court against the order dated
13/04/2018. The same is pending. The plaintiffs
have filed the suit beyond the scope of Section 6 of
the Specific Relief Act and therefore prayed for
rejection of the plaint.
3. The plaintiffs have filed reply to the application. The
contention of the plaintiff is that application is filed
to delay the matter. The plaint fully discloses the
cause of action as required under section 6 of Special
Relief Act i.e. illegal dispossession of plaintiffs from
their lawful possession of occupation of the suit
premises without following due process of law by
obtaining exparte order from the Small Causes Court
without disclosing the full facts and Hon'ble High
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Court, Bombay orders to it. The suit is not barred by
resjudicata and prayed for rejection of the
application.
4. At the outset the Court cannot travel beyond the
plaint avernments for considering the application
under order 7 rule 11 of the Code of Civil Procedure.
The contention of the plaintiffs in the plaint are that
plaintiffs have been illegally and fraudulently
dispossessed by obtaining exparte order dated
28/06/2017 in Execution application No.157 of 2017
in the Small Causes Court by breaking open the suit
premises's lock without following due process of law
as prescribed. It is the contention of the plaintiff that
in contravention to the specific directions by the
Hon'ble High Court in Writ Petition No.6745 of 2005
and 3924 of 2009 dated 19/11/2005, 22/06/2009
and 01/07/2009 respectively, the said act was done.
The defendants inspite having directions did not
obtain any leave of the Hon'ble Bombay High Court
to file separate proceedings prior to execution of any
decree till date. The defendants have violated and
disregarded the Hon'ble High Court's directions
intentionally and are also made themselves liable for
contempt of Court, as their acts are illegal and bad
inlaw in obtaining eviction order of execution, this is
besides defendants undertaking to Hon'ble High
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Court. The contention of the defendants is that the
orders of the Small Causes Court in execution was
challenged in revision. The order dated 28/06/2017
and 16/02/2018 was challenged before the Hon'ble
High Court. The Hon'ble High Court dismissed the
said writ petition of the plaintiffs with heavy costs.
5. The issue which is canvassed by the Ld. Counsel for
the defendants is that delivery of possession in
execution by Court can not be termed as illegal
dispossession. The contention of the plaintiffs is that
the possession warrant was obtained by suppressing
the fact and the direction of the Hon'ble High Court
and therefore the entire act of taking possession was
illegal. It would not be proper to comment upon the
execution proceedings at this stage. It would also
not proper at this juncture to give findings whether
such delivery of possession was legal or illegal.
Admittedly the order of the Hon'ble High Court is
after filing of the present suit. On the date of filing
of the suit, the plaintiff claims their dispossession as
illegal and that has to be decided at the time of trial.
This Court cannot give logical findings at this stage
that the handing over of possession in execution
proceedings is legal or illegal. Keeping that in mind
and the order of the Hon'ble High Court, this issue
would be decided at the time of trial. For deciding
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application under Order 7 Rule 11, plaint avernments
are only to be looked in. On reading of plaint
avernments it shows there is cause of action and suit
is not barred by resjudicata. Hence, the application
needs no consideration. Accordingly, it is expedient
to pass following order:
ORDER
1. Application(Exh.5) is rejected.
2. Cost in the cause.
09/12/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 09/12/2019
Transcribed on : 17/12/2019
Signed on : 03/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/01/2020 at 3.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
09/12/2019
Judgment and order signed by P.O. 03/01/2020
Judgment/order uploaded on 03/01/2020
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