Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion 3747/2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.3747 OF 2019
(CNR NO.MHCC01-010184-2019)
IN
SUIT NO. 1060 Of 2019
(CNR No.MHCC01-000544-2019)
1. Mr. Shankar Prabhu Wanjale.
2. Mr. Govind Prabhu Wanjale alias
Dinesh Prabhu Wanjale. }...PLAINTIFF.
Versus
1. Smt. Neeta Bhagwan Lohakare.
2. Smt Saraswati Nivrutti Karpe. }...DEFENDANT.
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Adv.Ms. Sakshi Saboo learned advocate for the plaintif.
Adv Mr.Shrikant Rathi learned advocate for defendant No.1.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 11/01/2021)
1. By fling this Notice of Motion, defendant No.1 has
prayed to reject the plaint under Order VII Rule 11(a) & (d) of
CPC.
2. Learned advocate for the defendant No.1 argued
that as per averments of plaint, father of the parties was the
original tenant in respect of the suit premises despite it,
plaintifs have claimed a relief to declare them as lawful
owners and title holders of the suit premises. He argued that it
is the settled law that no tenant can claim ownership of the
tenanted premises despite which, plaintifs are claiming the
relief of declaration of their ownership and title over the suit
premises and hence, from the statements made in the plaint,
suit is barred by Law due to which, plaint is liable to be
rejected. In support of his argument, learned advocate for the
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defendant No.1 has placed reliance on the law laid down by
Hon'ble Apex Court in a case of T.Arivandandam Vs T.V.
Satyapal and anr reported in (1977)4 Supreme Court
Cases 467. I have gone through said authority.
3. As against this, learned advocate for the plaintif
argued that even though the relief claimed in terms of prayer
clause-a of the plaint to declare that plaintifs are owners and
having title over the suit premises is not proper, it is not the
only relief claimed in the plaint. She argued that besides the
said relief, plaintifs have claimed relief to declare that they
are entitled for possession of suit premises alongwith
consequential relief of permanent injunction. She argued that
there is no legal bar for claiming those other reliefs hence, it
cannot be said that suit is barred by any Law due to which,
Notice of Motion is liable to rejected.
4. As is laid down by Hon'ble Apex Court in a case of
T.Arivandandam... cited above, the Courts are required to
keep in mind that if on a meaningful and not formal reading of
the plaint, it is manifestly vexatious and meritless, in the
sense of not disclosing a clear right to sue, power under Order
7 Rule 11 C.P.C. should be exercised. Keeping in mind the said
legal position, it will have to be seen whether the suit is barred
by any Law and whether the plaint discloses cause of action?
5. I have carefully gone through the plaint. It is well
settled that while deciding the prayer for rejection of Plaint
under Order VII Rule 11 of C.P.C., averments of the Plaint are
only required to be considered. It is also well settled that
cause of action is a bundle of facts. As is pointed out by
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learned advocate for defendant No.1, indeed, it is the case of
the plaintifs that suit premises is the tenanted premises.
Apparently, plaintifs are not entitled to claim a relief of their
ownership/title in respect of the suit premises. It cannot be in
dispute that tenant cannot claim ownership over the tenanted
premises. Denial of title of the landlord gives a cause of action
to landlord to claim eviction of the tenant from the tenanted
premises. However, here in the matter in hands, it does not
appear from any of the stetement made in the plaint that
plaintifs have denied the title of the landlord over the suit
premises. Furthermore, this is not a suit between landlord and
tenants. Having regards to those facts, the fact that plaintifs
have claimed relief of declaration of title/ownership in terms of
prayer clause-a of the plaint in itself is not sufcient to hold
that suit is barred by any law.
6. Order VII Rule-11(a) of CPC prescribes that plaint
shall be rejected where it does not disclose cause of action.
Plaintifs have averred in the plaint that they are the sons and
defendants are the daughters of late Prabhu Wanjale who was
the original tenant in respect of the suit premises & rent
receipts in respect of the suit premises have been issued by
landlord in the name of plaintif No.1 since year 2014 till date.
Plaintifs have further contended that plaintif Nos.1 & 2 have
allowed defendant No.1 to use the suit premises for the
limited purpose of keeping her paraphernalia but defendant
No.1 is now illegally seeking rights in the suit premises.
Plaintifs have further averred that defendant No.1 is denying
to handover possession of suit premises to them. By making
those averments in the plaint, plaintifs have claimed relief of
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recovery of possession of the suit premises from defendant
No.1 alongwith relief of permanent injunction.
7. As mentioned earlier, cause of action is a bundle of
facts. Overall reading of the plaint is sufcient for accepting
that the plaint discloses cause of action for fling suit for the
other reliefs than for the relief of declaration of title/ownership
of the plaintifs over the suit premises. This court is of the
opinion that even though claim of the plaintifs for relief of
declaration of their title/ownership over the suit premises is
contrary to the pleading in the plaint that suit premises is the
tenanted premises, it properly discloses cause of action for
the relief of recovery of possession & permanent injunction. It
is well settled that Plaint can be rejected as a whole and not in
part. So far as the objection raised by Defendant No.1 in
respect of the claim of declaration of title/ownership over the
suit premises by the Plaintifs is concerned, this Court is of the
opinion that Defendant No.1 can very well resort to the
provisions of Rule-16 of Order-VI of C.P.C.. Having regards to it,
the contention of defendant No.1 is not acceptable that Plaint
is liable to be rejected under Order VII Rule 11 (a) & (d) of the
Code of Civil Procedure and hence, Notice of Motion taken out
by the defendant No.1 is liable to be rejected. Thus, an order.
ORDER
Notice of Motion No.3747/2019 is dismissed.
Date : 11/01/2021. (P.P.RAJVAIDYA)
Dictated on :11/01/2021. Judge, C.R.No.9,
Checked on : 11/01/2021. City Civil Court,
Signed on : 11/01/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14.01.2021 at 1.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.9)
Date of pronouncement of
Order
11/01/2021.
Order signed by P.O. on 11/01/2021.
Order uploaded on 14/01/2021.
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