Interim Order 1

Order Details: Other
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
ORDER ON PRELIMINARY ISSUE
I N
S. C. SUIT NO.1154 OF 2018
(CNR NO.MHCC010050882018)
Mrs. Vijaylaxmi Devendra Saini Nee
Vijaylaxmi Chatter Singh Chauhan ..Plaintiff
V/s.
Mrs Sushma Vijay Chauhan & others ..Defendants
Appearance :
Adv. Pratap Singh for plaintiff.
Adv. Nishikant Patil for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 05/11/2022.
O R D E R
1 The plaintiff has filed the instant suit for grant of share to the
extent of 1/4th share in the suit property, claiming that she is one of the legal
heir of her parents and the suit premises belongs to her parents with injunctions.
2 The defendant No.1 appeared, filed her written statement
vide Exh.2 denying her contentions and simultaneously, prayed for
framing of preliminary issue of jurisdiction contending that the plaintiff
has averred in the plaint that the suit premises was allotted to her parents
by virtue of tenancy in 1958, when they were tenants in the suit property.
It is further averred in the plaint that after the death of her mother,
plaintiff & defendants are having share in the suit property. Thus,
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according to defendant No.1, the suit property is the rented property. It
cannot be a partitioned as per provisions of Hindu Succession Act. The
tenancy has to be devolved on the persons residing in the premises at the
time of death of original tenant. Thus, according to defendant No.1, this
Court has no jurisdiction to try & decide the suit regarding a premise. She
lastly prayed for framing of preliminary issue and to dismiss the suit.
3 Upon hearing both the sides, issues are framed alongwith the
issue of jurisdiction & maintainability at Serial No.3 & 4 at Exh.6A.
4 These issues being capable of being disposed off on the basis
of rival pleadings and on law has taken up as preliminary issue under
Order 14 Rule 2 of CPC.
5 Heard rival parties at length. After going through the rival
pleadings and the submissions of the parties, I record my finding on the
issue for the reason given there under:
Sr. No Preliminary Issue Finding
1 Whether this Court has jurisdiction
to try & entertain the present suit ?
In the affirmative.
2 Whether the suit is maintainable in
present form ?
In the affirmative
3 What order ? As per final order
REASONS
6 Defendant No.1 is relying on the judgment passed by the
Hon'ble Apex Court in a case of “Vasant Pratap Pandit : Banoo Pirojsha
Jungawalla V/s. Anant Trimbak Sabnis : Ardeshir K. Irani, reported in
1994 DGLS (SC) 408.
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7 In the cited case, two appeals came to be decided against the
judgment passed by the Ld. Trial Court, in which the parties therein had
approached before the Hon'ble Supreme Court against the judgment passed by
the Ld. Trial Court. There would not be two opinions regarding the view
expressed in the cited case. However, in this case, the preliminary issues are
under consideration. The result at the final disposal of the suit and the
observation at the time of final discussion cannot not be applied to the stage
for deciding the preliminary issue. While deciding the preliminary issue under
order 14 Rule 2 of CPC, parties are not allowed to adduce the evidence, being
issues are required to be decided on the pleadings of parties and on law.
8 Ongoing through the pleadings, the plaintiff is claiming
partition of the suit property contending that she has 1/4th share in the suit
property. It is not disputed that her parents were tenants in the suit
property. She is claiming that she is also residing in the small portion of
the suit premises. Thus, the plaint has to be considered as a suit for
partition as per the provisions of Hindu Succession Act. The question, as
to whether she is entitled for the share or not, is a matter of final
adjudication. The probable result of the suit according to defendant No.1,
cannot be equated with the stage of deciding preliminary issues.
9 It is vehemently argued by the Ld. Counsel for defendant No.1
that it is a tenanted premises and the dispute is relating to the tenanted
premises has to be decided by the Ld. Small Cause court. The present suit is
not tenable for want of jurisdiction and also not maintainable in present
form. It appears that defendant No.1 is claiming herself having sole right as
a deemed tenant after the demise of parents of the plaintiff, which is the
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matter of final adjudication. It is the suit between the legal heirs of
deceased tenants of the suit premises. Had it been the suit between the
landlord or tenant or subtenant, then jurisdiction to decide the said dispute
may lie with the Ld. Small Causes Court. However, this being the suit for
partition of the suit property, this Court has very well jurisdiction to try &
decide this suit.
10 In consequent to above discussion, I am of the view that this
Court has jurisdiction to try & decide the suit and it is maintainable in the
form, in which it is presented. Consequently, I answer the preliminary
issue is in affirmative. With this, I proceed to pass the following order :
O R D E R
1 It is held that this Court has jurisdiction to try & decide the
instant suit i.e. S.C. Suit No.1154/2018 and the suit is
maintainable, in present form, in present form.
2 Preliminary Issues are decided accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 05/11/2022. C.R. No.03
Dictated on : 05/11/2022.
Transcribed on : 05/11/2022.
Signed by HHJ on :
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“Certified to be true and correct copy of the original signed order”.
05/11/2022
at about 06.00 p.m.
(Ms. Vidya Abhijit Mande)
Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 05/11/2022
Order signed by Hon'ble Judge on : 05/11/2022
Order uploaded on : 05/11/2022
at about 06.00 p.m.
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