Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1533 of 2018, in Suit no.97601990
MHCC010074422012
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.1533 OF 2018
IN
SUIT NO.9760 OF 1990
IN
(HIGH COURT SUIT NO. 1098 OF 1990)
1. (Dinesh Surender Singh) ...(since deceased
deleted)
2. Harish Surender Singh ..Plaintiff.
V/s
1. Jagdish Singh Hirdyanarayan Singh & Ors. ..Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 5TH DAY OF NOVEMBER, 2022
: Appearances:
The learned Adv. Mr. Manoj Pandey for the plaintiff.
The learned Adv. Mr. Shah for defendant Nos.1 & 2.
ORAL ORDER
Defendant Nos.1 & 2 have taken out present Notice of
Motion for rejection of plaint under Order VII Rule 11 R/w S.151 of
the Civil Procedure Code 1908 ( In short “CPC”).
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2. In short, it is contention of defendant Nos.1 & 2 that
original plaintiff has filed suit u/s. 6 of the Specific Relief Act and for
restoration of possession of suit premises from defendants. The
plaintiff claiming that his late father was the tenant of late Asmabai
Tayabali in respect of suit premises.
3. It is further contended that, Notice of Motion
No.957/1990 taken out by the original plaintiff for appointment of
Court Receiver, injunction etc., came to be dismissed vide order dated
28.01.1992. The appeal preferred by the original plaintiff before the
Hon'ble High Court and Special Leave Petition preferred before the
Hon'ble Supreme court also came to be dismissed. Thereafter the
original plaintiff has filed an application to Tahsildar Taluka Andheri
to have his name entered in Kul and Khan in respect of suit property.
However the said application also came to be rejected. Therefore the
original plaintiff has preferred appeal before the SubDivisional
Officer. However it also came to be dismissed. Thereafter the Deputy
Collector (Appeals), BSD by setting aside order of the Tahsildar and
SDO remanded back the matter to the Tahsildar. But in an appeal
preferred by defendant No.2 before the Addl. Commissioner it came
to be set aside.
4. It is further contended that, as defendant No.3 and other
coowner agreed to sell and transfer their right in respect of Plot
No.111 vide Agreement dated 14.03.1990 in favour of defendant
No.1 and 2, the original plaintiff claimed that suit premises was part
of Plot No.111 and defendant Nos.1 & 2 have wrongfully dispossessed
him from the suit premises.
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5. It is further contended that, during pendency of the suit
defendant No.2 carried out additions and alterations to the existing
building. The existing building consisting of ground plus one floor
and attached ground floor having about 32 tenements on tenancy
basis, was converted into ownership and society thereof known as
New Puja was formed and registered with the Registrar of Co
operative Societies. That occupation certificate in respect of
constructed building on Plot No.111 was also received on
17.11.1998. Thus entire plot No.111 with the building situate thereon
is in physical possession of Puja Bhavan CHS Ltd., and new Puja CHS
Ltd., through its members. The alleged suit premises are not in
existence as the entire Plot No.111 is in possession of Puja Bhavan
CHS Ltd and New Puja CHS Ltd., through its members.
6. It is further contended that, the original plaintiff had
entered into an Agreement dated 16.1.1996 with one S.J. Bhalekar,
Chief Promoter of Prashal CHS Ltd., and in lieu of its tenancy rights
in respect of stable consisting of 62 Khilas on Plot of land No.114 and
other premises on Plot No.113 and 115 had agreed to receive a sum
of Rs.15,00,000/ and two residential flats bearing Nos.1 & 2 of total
built up area of 1430 sq.fts., and a garage in a building that was to be
constructed at the relevant time on Final Plot bearing No.113 to 115
on ownership basis without any charge.
7. It is further contended that, the present plaintiff is fully
aware of the fact that original plaintiff prior to execution of
Agreement dated 16.1.1996 had received total consideration of
Rs.15,00,000/. The present plaintiff is also fully aware that Prashal
CHS Ltd share common compound wall with Puja Bhavan CHS Ltd.,
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and New Puja CHS Ltd. Thus the plaintiff is fully aware of the fact
that alleged suit premises are not in existence and on Plot No.111
building of Puja Bhavan CHS Ltd., and New Puja CHS Ltd., is
situated. In lieu of tenancy right of his grand father, the plaintiff has
received consideration in terms of money and constructed premises.
Thus no cause of action survives to continue with the above suit.
Therefore the suit is liable to be rejected for want of cause of action
survives. Hence, the present Notice of Motion.
8. The plaintiff No.1(b) strongly opposed Notice of Motion
by filing reply on affidavit. It is contended that, Notice of Motion as
filed is not maintainable and liable to be rejected. It is contended
that, suit premises is an open land to the exclusion of those buildings,
which suit land is still an open land save and except the small new
construction carried out at the portion of the suit land by defendant
Nos. 1 & 2, which construction purportedly with sanction order dated
03.05.1991, in breach of the status quo order dated 30.03.1990
passed by the Hon'ble High Court and was in force till 28.01.1992.
Thus defendants cannot be given any advantage for their unlawful
acts. It is contended that, defendant Nos.1 & 2 are in actual
possession and occupation of said new small construction carried out
by them at the portion of suit land. Hence cause of action is not
frustrated in any manner as the recovery of suit land along with said
construction can be ordered as the defendant Nos.1 & 2 has done act
in breach of statusquo order.
9. It is further contended that, original plaintiff has
published a LisPendens notice on suit site by affixing a big display
board on Plot No.111 and by duly registering it with the Sub
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Registrar of Assurances on 17.02.1994. Therefore the alleged
transaction entered into by defendant Nos.1 & 2 with third parties are
subject to the outcome of this suit with the full knowledge of this
proceeding with the defendants and third parties. It is further
contended that said illegal acts of defendants are not giving them any
case to invoke Order VII Rule 11(2) of CPC. It is contended that
defendants approached the Court by suppressing material facts.
Hence the Notice of Motion is liable to be rejected.
10. It is further contended that, the agreement by original
plaintiff with Prashal CHS Ltd was in respect of Final Plot No.114
which is separate and different piece of land from Final Plot No.111
hence said agreement no way affect the cause of action of this suit.
11. Defendants have filed rejoinder to reply filed by the
plaintiff and strongly opposed the contents of reply. Defendant Nos.1
& 2 denied all the adverse allegations. It is contended that as no
cause of action survives in favour of the plaintiff, plaint is liable to be
rejected.
12. The plaintiff has filed surrejoinder to the rejoinder filed
by the defendants and denied all the adverse allegations. It is
contended that suit is very well maintainable and thus Notice of
Motion may kindly be rejected.
13. Heard the learned advocate for the plaintiff and
defendants at length. Perused the record.
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14. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the suit is liable to be
rejected in view of Order VII Rule 11
Of CPC?
No
2. What order ? As per final order.
REASONS
AS TO POINT NO.1:
15. The Hon'ble Supreme Court in the case of Dahiben V/s.
Arvindbhai Kalyanji Bhanusali (Gajra) Dead through legal
representatives & Others (2020) 7 SCC 366 held that, “while
considering objection under Order VII Rule 11 of CPC the court has to
determine whether plaint prima facie discloses cause of action. To
ascertain this, the court has to read averments in conjunction with
documents relied upon in plaint as a whole, without addition or
subtraction and nor form which has to be seen. So read, if cause of
action prima facie disclosed, court not required to further enquire about
the truthfulness of allegation of fact. Pleas taken by the defendants in
written statement also not relevant”.
Keeping in mind above principles, I proceed further to
deal with the objection raised by the defendants.
16. The learned advocate for defendants argued that, during
the pendency of the suit new structure came to be constructed on suit
premises by demolishing the old structure and as such old structure is
not in existence. The newly constructed building having 32
tenements. It was converted into ownership and society thereof
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known as New Puja formed and registered with the Registrar of Co
operative Societies. The original plaintiff entered into an Agreement
dated 16.1.1996 with Prashal CHS Ltd., in lieu of its tenancy rights in
stable consisting of 62 Khilas on Plot No.114 and had agreed to
receive a sum of Rs.15,00,000/ and two residential flats as well as a
garage. Therefore in view of above facts no cause of action survives in
favour of the plaintiff and hence suit is liable to be rejected under
Order VII Rule 11 of CPC.
In support of his argument, the learned advocate for
defendants relied on the authority reported in the case of (1) I.T.C.
Limited V/s. Debts Recovery Appellate Tribunal and others. AIR
1998 Supreme Court 634 (2) Azhar Hussain V/s. Rajiv Gandhi
AIR 1986 Supreme Court 1253 and (3) Shipping Corporation of
India Ltd. V/s. Machado Brothers and others AIR 2004 Supreme
Court 2093.
17. Per contra, the learned advocate for the plaintiff
vehemently argued that, merely constructing a new premises on the
old structure cannot affect the cause of action of the plaintiff and still
cause of action is survived in favour of the plaintiff. Therefore Notice
of Motion is liable to be rejected.
18. I have gone through the authorities relied by the
defendants. So far as the facts in the case of Azhar Hussain (supra)
and I.T.C. Limited (supra) are concerned they are totally different
with the case in hand and hence with due respect I want to submit
that said authorities are of no help to the defendants.
19. In case of Shipping Corporation of India Ltd (supra) at
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para no.25 the Hon'ble Supreme Court observed that: “By the
subsequent event if the original proceeding has become infructuous, ex
debito justitiae, it will be the duty of the Court to take such action as is
necessary in the interest of justice which includes disposing of
infructuous litigation.”
20. Here it is to be seen that, the plaintiff has filed suit u/s 6
of the Specific Relief Act for restoration of possession of the suit
premises standing on Final Plot No.111 alleging therein that
defendants in collusion with each other wrongfully dispossessed him
from the suit premises. Defendants have filed present Notice of
Motion on the ground that during the pendency of the suit defendant
No.2 carried out additions and alterations to the existing structure
situated on Plot NO.111 as per the plans sanctioned by B.M.C., on
03.05.1991. Thus newly constructed building of ground plus one
floor and attached ground floor having about 32 tenements on
tenancy basis. Therefore old structure came to an end and not
remained in existence. It is further contended that as new building
was constructed in place of old structure therefore no old structures
remained in existence thus question of handing over its possession to
the plaintiff does not arise and therefore no cause of action survives
in favour of the plaintiff. In my respectful submission, if any act was
done by the parties during the pendency of the suit so as to affect
right of adverse party to the suit then it cannot be said that by mere
doing of said act right of other party got affected/suffered or come to
an end. It is to be seen that, the plaintiff has contended that newly
illegal construction is in possession of defendant No.1. Defendants
inspite of knowing of the statusquo order, which was in existence,
have got the above act done. In my view mere changing of structure
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by the defendants without knowledge and consent of the plaintiff
cannot be taken away right of the plaintiff to seek restoration of
possession, which was lost by him for the wrongful and illegal act
committed by the defendants. This question needs to be decided on
merits and cannot be rejected in such a manner.
21. So far as another contention of defendants that original
plaintiff entered into an agreement with Prashal CHS Ltd.
Construction is concerned it is in respect of Plot No.114 and other
premises on Plot No.113 and 115. It has no concerned with disputed
plot No.111. Thus agreement entered into in between the original
plaintiff and Prashal CHS Limited in respect of Plot NO.114, 113 and
115 in no manner affect the rights of plaintiff in the suit premises.
Therefore I do not find any substance in the contention of defendants
so as to reject the plaint. Hence considering the facts and
circumstances of the case, my answer to Point No.1 is in negative.
AS TO POINT NO.2:
22. In view of my above discussion, I pass following order.
ORDER
Notice of motion no.1533/2018 stands rejected.
Notice of Motion stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 05.11.2022 (C.R. No.1)
Dictated on : 05.11.2022
Transcribed on : 07.11.2022
checked and Signed on : 07.11.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 10.11.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 2.58 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 05.11.2022
JUDGMENT/ORDER signed by P.O. on 07.11.2022
JUDGEMENT/ORDER uploaded on 10.11.2022
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