Final Order 2

Order Details: Notice of Motion
Pdf Text: N/M No.472 of 2017 1
MHCC010013892017
Presented on : 05/10/2019
Registered on : 05/10/2019
Decided on : 29/01/2024
Duration : 4Y 3 M 26 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER
IN
NOTICE OF MOTION NO.472 OF 2017
IN
S. C. SUIT NO.2645 OF 2016
Mr. Hansraj Narandas Bhatia ... Plaintiff
V/s.
Mrs. Rajuben Raghavji Bhati & Ors. ...Defendant
CORAM : HIS HONOUR JUDGE
SHRI. R. R. BHAGWAT
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.65)
DATE : 29th January, 2024
Adv. Ms. Nutan Patel for the plaintiffs.
Adv. Mr. Rajendra Thakkar for defendant No.5.
Adv. Mr. K. Bhatia for defendants No.6(a) to 6(e).
ORDER
The defendants have filed present Notice of motion
for rejection of the plaint as per Order VII Rule 11 (a) of the
C.P.C. Perused affidavit in support, affidavit in reply filed by
the plaintiff and the suit proceeding. Heard Ld. Advocate
Rajendra Thakkar for defendant No.5, Ld. Advocate K. Bhatia
for defendant Nos. 6(a) to 6(e) and Ld. Advocate Ms. Nutan
Patel for the plaintiffs.
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2. The defendants have pleaded in affidavit in support
of present Notice of Motion that the defendants have
contended that original plaintiff had filed the suit to grab
share of others who are lawfully entitled for their respective
share in ancestral property. Suit is filed to settle personal
dispute as per terms of the plaintiff. Defendant No.1 had filed
suit No.460/760 of 2011 in the Small Causes Court, Mumbai.
The plaintiff has not deliberately mentioned exact proportion
of his share in the ancestral property. The plaintiff and the
defendants are family members and they are co-owners of the
suit property. Suit is not filed deliberately against other co-
owners whose names are mentioned in property card of the
suit property. The suit property was purchased by common
ancestors as mentioned in para 3 of the plaint. The plaintiff
had pleaded in para 17 of the plaint that he apprehends that
these defendants are likely to receive rent and accept
surrender of the tenancy rights and thus misappropriate all
amounts received by them from tenants. The defendants
continue to operate accounts with banks i.e. defendants No.8
and 9 against the interest and to detriment of the plaintiff. The
plaintiff has not disclosed his proportionate share in the suit
property. He can challenge transfer of tenancy rights and
collection of amounts of lawful rent in respect of tenanted
premises to the extent of his respective share. The plaintiff
does not seek relief of partition and separate possession. The
plaint does not disclose cause of action. Therefore, the suit is
not maintainable.
3. The plaintiff has contended in affidavit in reply that
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the Notice of Motion is filed with malafide intention to delay
hearing of the suit. The plaintiffs have disclosed cause of
action against the defendants. Defendants No.1 to 7 have
already filed written statement on their behalf. The defendants
failed to maintain the suit property and they have also failed
to pay proportionate share in respect of property tax,
electricity charges, water charges bills and other utility bills as
per statutory dues with the competent authorities. The
plaintiff has taken out N/M no. 1640/2019 for directions to
defendants No.1 to 7 to pay respective proportionate share in
respect of the property tax of the suit property. He also
claimed electricity charges, water charges, property tax and
other utility charges for maintenance of the suit property from
defendants No. 1 to 7 by filing N/m No.3467/2019. The plaintiff
relied upon para 13 to 18 of the plaint to state that cause of
action is made out. Present suit is filed only for seeking
injunction for restraining the defendants from creating third
party rights or accepting cash by way of rent from respective
tenants by defendants No.1 to 7 and also to disclose a
statement of accounts of all amounts received by defendants
No.1 to 7 from all respective tenants. The plaintiffs prayed for
dismissal of the Notice of Motion with costs.
4. Ld. Counsel Shri. Rajendra Thakkar for defendant
No.5 has placed on record list of judgments and written
arguments. There are also written submissions and
compilation of judgments on record filed on behalf of
defendants No. 1 and 2. Similarly, Ld. Counsel Nutan Patel for
the plaintiffs filed list of judgments. I have gone through all
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these citations. Submissions of both sides are on the line of
their respective contentions in affidavit in support and
affidavit in reply and therefore, they are not required to be
reproduced.
5. On perusal of the record and contents in the plaint,
it is explicit that ancestors of the plaintiffs and defendants
had acquired right, title and interest in the suit property. The
suit property is jointly owned by the plaintiffs and the
defendants. Now, the plaintiffs have raised grievance
regarding recovery of rent in respect of various tenanted
premises in the suit property by the defendants. They are also
asserting rights in respect of taxes, maintenance charges etc.
If contents of para No. 13 to 18 in the plaint are read, the
plaintiffs have raised grievance purely in respect of collection
of rent in respect of the tenanted premises in the suit
property. After raising these grievances, the plaintiffs have
sought relief of permanent injunction restraining defendants
No. 1 to 7 from creating third party rights or parting with
possession or executing any documents including cash rent
receipts in respect of portion of the suit building. In short, the
plaintiffs are seeking relief against the co-owners making
them difficult to continue enforcement of tenancy agreements
in respect of various premises in the suit property. It would
also affect interest of tenants. Admittedly, tenants are not
made party to the present suit. Furthermore, the plaintiffs
have neither sought relief of partition nor recovery of
possession nor mesne profit in respect of suit premises. As
grievances of the plaintiff are purely restricted to collections of
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rent amount and their share in the rent amount, no cause of
action is made out to seek relief of permanent injunction
preventing co-owners from dealing with property jointly owned
by plaintiffs and defendants. With this regard, observations in
para 10 in the case of
Ramlal Maniram Navdhinge V/s.
Maniram Patiram Navdhinge , 2008 (1) MhLj 860 are
relevant which reads as under -
“10. Even in respect of other claim it could be
said that the plaint does not disclose the cause
of action. It may be pointed out that plaintiff
himself comes out with a case that the property
in the hands of his father had come to him from
his grandfather. It is thus admittedly an
ancestral property. Plaintiff seeks to set aside
the gift deed executed by his father defendant
No.1. Defendant No.1 father could be said to be
‘Karta’ of the joint family and he has a right to
transfer the property. If therefore plaintiff wants
to challenge such transfer he can challenge it
only to the extent of his share and he can do it
only by filing a suit for partition and then praying
for setting aside the gift deeds. Therefore, until a
partition is sought there could be no setting
aside of alienation for the alienation could be set
aside only to the extent of share of the plaintiff
and that cannot be done unless the suit for
partition is filed. Since the plaintiff does not
make a prayer for partition and separate
possession carving out his separate share the
facts as stated do not constitute a cause of
action. As a result plaint is liable to be rejected
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on this count. Although I do not concur with the
reasons given by the learned Judge of lower
Court I find that the rejection of the plaint was
proper. In the result I find no substance in the
appeal. It is dismissed. No order as to costs.”
6. I have also gone through other citations relied by
the plaintiffs. Citation of
Sopan Sukhdeo Sable and Others
V/s. Assistant Charity Commissioner and Others, 2004
AIR SCW 799 is relating to continuance of tenancy under
trust. In the case of
Mayar (H.K.) Ltd. And Ors. V/s.
Owners and Parties Vessel M. V. Fortune Express and
Ors, 2006 AIR SCW 863 settled proposition of law is
discussed that the plaint cannot be rejected on basis of
allegations made by the defendant in his written statement.
Similarly, it is observed in the case of
Mahadeo Prasad
Burnwal V/s. Atpendra Roy Choudhary and Ors, AIR
2007 JHARKHAND 88 that dismissal of the suit at the
threshold may lead to serious consequences and defeat the
purpose of justice and the plaint, which raises legally tenable
and arguable points, should not be rejected under Order VII
Rule 11 of C.P.C. Case of
Dahiben V/s. Arvindbhai Kalyanji
Bhanusali (Gajra) IDP THR LRS, AIR 2020 Supreme
Court 3310 deals with the aspect of filing of the suit after
expiry of limitation period while confirming the order of
rejection of the plaint on that count. Considering peculiar set
of facts, general proposition of law in above referred citations
can be considered in the context of present matter. In view of
all above discussion, present suit is liable to be rejected for
want of cause of action as per Order VII Rule 11(a) of the
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C.P.C. Hence, I pass following order -
ORDER
1. Notice of motion No.472 of 2017 is made absolute
in terms of prayer clause (a).
2. Plaint in suit No.2645 of 2016 is rejected as per
Order VII Rule 11(a) of the C.P.C.
3. Notice of Motion No.4535 of 2016, Notice of Motion
No. 1640 of 2019 and Notice of Motion No. 3467 of
2019 are disposed of having become infructuous
due to disposal of the main matter.
4. Proceedings of all Notice of Motions and suit No.
2645 of 2016 are closed.
(R. R. Bhagwat)
Date- 29.01.2024 Judge,City Civil Court,
Gr. Bombay.
Dictated on : 29.01.2024
Typed on : 29.01.2024
Signed on : 29.01.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
30.01.2024 11.11 am ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R.R. Bhagwat (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
29.01.2024
JUDGMENT/ORDER signed by
P.O.on
29.01.2024
JUDGMENT/ORDER uploaded on 30.01.2024
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