Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No. 3137 of 2019
CNR:MHCC01-008566-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO. 3137 OF 2019
IN
LONG CAUSE SUIT NO. 3423 OF 2014
1 Mr. Manmohan S. Samant & Anr. .. Applicants/
Def. No.3 and 4
In the matter between
Kum. Rohini Devi @ Rohini Singh .. Plaintiff
V/s.
1 The Municipal Corporation of
Greater Mumbai & Ors. .. Defendants
Appearance:-
Adv. Heera for plaintiff.
Adv. Pradeep Patil for defendant No.1/MCGM.
Adv. Yashpal Jain for defendant No.3 and 4/applicants.
Adv. More for defendant No.2.
None for 5 to 11.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 26/08/2024.
ORDER
This Notice of Motion is taken out by the defendant No.3
and 4 under Order VII Rule 11 Code of Civil Procedure to reject the
plaint.
2 It is the contention of the defendant No.3 and 4 that the
present suit is filed by the plaintiff for declaration that the auction sale
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held on 15th May 1986 by the defendant No.1 in favour of the defendant
No.3 and 4 is liable to declared as null and void. The said auction sale
pertains to the residuary leasehold rights created by lease dt. 18th June,
1901. The said leasehold rights were assigned to one Indiradevi
Narhardevji Rana by deed of assignment dt. 4th March 1954. However,
in view of non payment of property tax, said leasehold rights came to be
auctioned and present defendant No.3 and 4 acquired the same on 15th
May, 1986. It is contended that earlier the said auction sale was
challenged by one of the legal heirs of deceased Indiradevi in Suit No.
1621 of 1986 in which mother of the present plaintiff was one of the
party defendants. However, the said suit was dismissed by an order dt.
28th February 2000 which was never challenged and thus, attained
finality. Moreover, the plaintiff’s mother had also relinquished her share
in the said leasehold rights, therefore, the plaintiff has no locus standi
to file the present suit. Therefore, while seeking the relief to reject the
plaint under order VII Rule 11 of Code of Civil Procedure, the defendant
No.3 and 4 have further come with a contention that apart from the
want of locus standi to the plaintiff to file this suit, present suit is barred
by res judicata and there is bar of limitation in filing this suit. By way of
additional affidavit, it is further contended that the cause of action and
the relief sought in the plaint are not within the jurisdiction of this
Court in view of provisions of Section 41 (1) of Small Presidency Small
Causes Courts Act 1882.
3 On the other hand, Notice of Motion is strongly resisted by
the plaintiff mainly on the ground that earlier Notice of Motion No.
2152 of 2019 taken out by these defendants is for recasting of issues
and for framing additional issues when the suit was kept for the cross
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examination of the plaintiff and the said Notice of Motion is yet to be
decided. However, pending the hearing of the Suit and Notice of
Motion, these defendants have taken out the present Notice of Motion.
These defendants have already raised the aforesaid issues in their
written statement. After framing the issues, matter is already proceeded
further. However, these defendants want to delay the proceedings. All
these issues can be dealt with by leading necessary evidence during the
trial. However, these defendants have chosen to take short-cut method
by filing this Notice of Motion. These defendants remained silent for
many years and when the case is ripe for hearing and cross
examination, this Notice of Motion is taken out. The plaintiff has filed
this suit for declaration and not for possession, therefore, no question
arises of bar of jurisdiction of this court in entertaining the suit. It is,
thus, contended that the Notice of Motion is liable to be dismissed with
costs.
4 During the course of arguments, apart from the written
notes of argument, the learned advocate for the defendant No.3 and 4
submitted that the original lessee was the grand mother of the plaintiff.
One of the sons of plaintiff’s mother had challenged the said auction in
the year 1986. In that suit, mother of the plaintiff was one of the
parties. In that suit bearing No. 1621 of 1986, apart the defendant No.3
and 4, other legal heirs of the original lessee were also made parties.
The prayer in that suit is almost identical as compared to the prayer in
the present suit. In the year 2000, that suit was dismissed. Thereafter,
Notice of Motion taken out by one of the legal heirs in that suit was
already decided. The learned advocate for the defendant No.3 and 4
also invited the attention of this Court towards the copies of documents
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filed by these defendants to show that the mother of the plaintiff had
already relinquished her rights in the said property. The plaintiff is well
aware about the earlier proceeding. In support of his submissions, the
learned advocate for the defendant No.3 and 4 placed reliance on-
1) Mansukhlal Dhanraj Jain & ors. V/s. Eknath Vithal Ogale
(1995) 2 SCC 665.
2) BXIN Office Parks India Pvt. Ltd. V/s. Kailasa Urja Pvt.
Ltd., Arbitration Petition (L) No. 22526 of 2022, dt. 20th
August 2022, (Bombay High Court).
3) Shri Chandra Nath Chandra V/s. Shri Buddhadeb Haider
(2020) SCC Online Cal 3270.
4) Satchitanand Damodar Naik & Ors. V/s. Laxman Bordekar
(2010) (7) Mh.L.J. 377.
5) H.C. Pandey V/s. G.C. Paul (1989) 3 SCC 77.
6) Rukminibaimotiram Kshirsagar Manoramabai Bagle 2019
SCC Online Bom 1792.
7) Dahiben V/s. Arvindbhai Kalyanji & Ors. (2020) 7 SCC
366.
8) Popat & Kotecha Property V/s. State Bank of India Staff
Association (2005) 7 SCC 510.
9) Temple of Thakur Shri Mathuradassji V/s. Shri
Kanhaiyalal & Ors. (2008) SCC Online Raj 530.
10) Shipping Corporation of India Ltd. V/s. Machado
Brothers & Ors. (2004) 11 SCC 168.
11) Vidur Impex and Traders V/s. Pradeep Kumar Khanna
(2017) SCC Online Del 8925.
5 On the other hand, the learned advocate for the plaintiff in
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addition to the written arguments, placed reliance on-
1) Chhotanben and Anr. Kiritbhai Jalkrushnabhai Thakkar
and Ors. 2018 AIR (SC) 2447.
2) Salim D. Agboatwala and Ors. V/s.Shamalji Oddhavji
Thakkar and Ors. 2021 (9) JT 269.
6 In the light of respective submissions, I have carefully gone
through the respective pleadings and copies of documents on record.
Perusal of the record shows that after filing this suit in the year 2014,
issues have been framed at Ex.12 on 17/09/2018. Thereafter, affidavit
of evidence of the plaintiff alongwith list of documents was tendered on
record on 22/02/2019. It is therefore, apparent that after
commencement of the trial, this Notice of Motion is taken out by the
defendant No.3 and 4. Apart from the respective pleadings and copies
of documents on record, I have also carefully gone through the
guidelines and ratio laid down in case laws cited supra. No doubt, after
the pleadings of both sides were concluded, the issues are also framed
and the trial in this suit is already commenced. The plaintiff has
resisted the Notice of Motion mainly on the ground that instead of
proceeding with the trial, these defendants have taken out this Notice of
Motion to prolong the matter. In this regard, it would be relevant to
discuss the ratio laid down in Dahiben V/s. Arvindbhai Kalyanji relied
upon by the learned advocate for the defendant No.3 and 4. The
Hon’ble Supreme Court in Dahiben supra has specifically held that
“
power under Order 7 Rule 11 of CPC may be exercised by the Court at
any stage of the suit, either before registering the plaint, or after issuing
the summons to the defendant, or before conclusion of the trial. It is
also held that the provisions of Order 7 Rule 11 is mandatory in nature.
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It states that the plaint ‘shall’ be rejected if any of the grounds specified
in clause (a) to (e) are made out. If the Court finds that the plaint does
not disclose a cause of action or that the suit is barred by any law, the
Court has no option, but to reject the plaint.”
Therefore, having regard to the law laid down by the
Hon’ble Supreme Court, I am of the considered view that even if the
trial has been commenced in this suit, Notice of Motion taken out by
these defendants under Order VII Rule 11 is maintainable even after
commencement of the trial.
7 While considering the rigour of the provisions Order VII
Rule 11 of Code of Civil Procedure, I have carefully gone through the
guidelines and ratio laid down in the case laws cited by both sides.
Upon cumulative consideration of the guidelines and ratio laid down
therein, some significant aspects can safely be culled out which are
necessary to be taken into consideration while deciding the application
under Order VII Rule 11. As discussed earlier, apart from mandatory
nature of these provisions under Order VII Rule 11, the entire purpose
of conferment of these provisions is to ensure that the litigation which is
meaningless, and bound to prove abortive should not be permitted to
waste the judicial time of the Court. Under these provisions, the duty is
casted on the Court to determine whether the plaint discloses the cause
of action by scrutinizing the averments in the plaint which are to be
read in conjunction with the documents relied upon by the plaintiff. On
a meaningful reading of the plaint, if it is found that the suit is
manifestly vexatious and without any merit and does not disclose a
right to sue, the Court would be justified in exercising the power under
Order 7 Rule 11 CPC.. The Court must be cautious about the clever
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drafting of the plaint which has created illusion of a cause of action.
Even if the Court is unable to dismiss the suit which is abuse of process
of the Court, the Court is not helpless and it can invoke the power
under Section 151 of CPC in case of frivolous litigations. However, it is
equally significant to mention that another aspect is also provided while
considering these provisions. While considering the application under
Order VII Rule 11, the Court is required mainly to examine the
averments in the plaint. The plaint is required to be read as a whole. If
the issues involved is a triable issue as to the bar of limitation etc, the
plaint cannot be rejected at the threshold in exercise of power under
Order VII Rule 11 (d).
8 In the aforesaid backdrop, if the facts and circumstances of
the present suit are taken into consideration, it will be seen that the
present suit is filed by the plaintiff simplicitor for the relief of
declaration challenging the auction sale dt. 15/05/1986 in respect of
the suit property as illegal, bad in law and null and void and liable to be
set aside. In fact, no relief of possession has been sought. As can be seen
from the nature of the suit property, originally it is belonging to the
Board of Trustees of Port of Mumbai i.e. defendant No.2 and the same
has been auctioned by the MCGM i.e. the defendant No.1 and it has
been purchased by the defendant No.3 and 4 under the said auction.
9 After going through the plaint averments, it can be seen
that the cause of action to file this suit has been pleaded for the first
time on 23/24 December 2011 when the plaintiff received application
from the Hon’ble High Court at Mumbai in F.A. No.387 of 1991 filed by
the defendant No.2. The plaintiff is claiming herself to be the maternal
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grand daughter of Indiradevi. The plaintiff has come with a specific case
that after the death of Indiradevi, one partition Suit No.144 of 1982
was filed by one of heirs in the court of Civil Judge, Rajkot in which the
suit property is one of the properties as the subject matter of the said
suit. It is contended that there was outstanding dues of property tax and
repair cess on the said property. Therefore, the defendant No.1 attached
the suit property on 13/10/1985 under the warrant of attachment for
non payment of aggregate outstanding dues. However, said warrant of
attachment was never served upon the mother of the plaintiff namely
Smt. Krishna Devi who was one of the heirs of Indiradevi. Thereafter, at
about 23/24 December 2011, the plaintiff received an application for
substitution on the demise of her mother. At that time, it came to light
that F.A. No. 387 of 1991 is filed by the defendant No.2 before the
Hon’ble Bombay High Court against Mr. S. N. Rana and others. The
plaintiff thereafter, approached to the Mumbai Port Trust i.e. the
defendant No.2. At that time, it was revealed to the plaintiff that the
suit property was auctioned by the defendant No.1 on 15/05/1986. It
is the contended that the plaintiff had no information about the said
auction prior to 28/12/2011 when the plaintiff filed an application for
renewal of property tax in respect of the suit property. Even no notice/
summons was served upon the deceased mother of the plaintiff nor
upon the defendant No. 5, 8 to 11 who are real sisters of the plaintiff. At
the time of initiating the process of auction, no one was resided in the
suit property, therefore, mother of the plaintiff had no knowledge about
the said auction and notices.
10 Therefore, having regard to the plaint averments, it is
apparent on the face of record that there is no whisper in the entire
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plaint to show that the plaintiff is having knowledge about the earlier
proceedings initiated by the other legal heirs of the deceased Indiradevi
challenging the auction of the suit property. All these facts have been
brought on record in the written statements of the defendants.
Therefore, I am of the considered view that unless and until all these
documents are considered on merit by conducting full fledged trial, one
cannot directly jump over to the conclusion that the plaintiff was fully
conversant with these facts. As discussed earlier, entire plaint is silent
towards the earlier proceedings initiated by the defendant No.2 as well
as by other legal heirs of deceased Indiradevi. Therefore, I am of the
considered view that the issue as to bar of res judicata, bar of limitation
and bar of jurisdiction of this Court coupled with locus standi of the
plaintiff to file this suit will be required to be determined after full
fledged trial. Therefore, in view of these reasons, following order is
passed.
ORDER
1 The Notice of Motion No.3137 of 2019 stands dismissed.
2 Costs in cause.
3. The Notice of Motion stands disposed off accordingly
Date:26/08/2024. (R. M. Mishra )
Dictated on :26/08/2024. Judge, City Civil Court,
Typed on :28/08/2024. Gr.Mumbai.
Signed on :28/08/2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/08/2024. 06.00 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
26/08/2024.
JUDGMENT/ORDER signed by P.O.on 28/08/2024.
JUDGMENT/ORDER uploaded on 28/08/2024.
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