Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4701-18 in S.C.Suit no.2711-2019
1 Date :14.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4701 OF 2019
IN
S.C. SUIT NO. 2711 OF 2019
(CNR MHCC01 0128342019 )
Mrs. Neha Vinayak Nagwekar … Applicant.
In
Mr. Harendra Damji Bhalla ... Plaintiff
Versus
Mr. Neha Vinayak Nagwekar ... Defendant No. 1
Mr. Sanket Vasant Nagwekar … Defendant No. 2
Appearances :
Adv.R.D.Thorat for plaintiff.
Adv.Prashant Nayak for defendant no.1.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 14.02.2020
ORDER
1. Defendant no. 1 filed instant Notice of Motion for rejection
of plaint under Order 7 Rule 11(d) of CPC. It is contended by the
defendant no. 1 that the plaintiff filed instant suit in the capacity
of being licensee of the suit premises seeking injunction against
the defendant from restraining them from dispossessing the
plaintiff, his servant, agent from the suit premises without
following due procedure of law.
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2. It is further contended that the plaintiff also seeking ad
interim relief of renewal of various license to run restaurant in
favour of the plaintiff without any valid contract, against her will
and consent for carrying on commercial activity of restaurant and
Bar in the suit premises. The plaintiff further seeking necessary no
objections and requisite signatures of defendant no. 1 against her
Will and consent, on various forms for the purpose of renewal of
all requisite licenses in relation to the business as run from the suit
premises.
3. It is contended by the defendant that the suit as framed and
filed before this Court is not maintainable as the dispute relating to
possession of the suit property which is specifically within the
jurisdiction of small causes court in view of the Section 41 (1) of
presidency Small Causes Court Act, 1882 and the jurisdiction of
Civil Court has specifically barred. Hence, the defendant no. 1
prayed for rejection of the plaint. The defendant no. 1 in support
of his contentions relied on the following judgment.
a. Carona Ltd. V/s. Sumangal Holdings reported in 2007 (4)
Mh.L.J.
b. The Association of Commerce House Block Owners Ltd.
V/s. Vishandas Samaldas & Ors. reported in 1980 SCC
Online Bom 252.
c. Rajasthan Breweries Ltd. V/s. The Stroh Brewery
Company reported in 2000(55) DRJ (DB)
d. Mansukhlal Dhanraj Jain & Ors. V/s. Eknath Vitthal
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Ogale rported in (1995) 2 Supreme Court Cases 665.
e. ING Vysya Bank Limited V/s. Modern India Limited & Anr.
f. Raghwendra Sharan Singh V.s. Ram Prasanna Singh.
4. Per contra the plaintiff opposed the Notice of Motion by
filing Say. It is contended by the plaintiff that he has not file the
present suit in the capacity of the licensee. He is in peaceful use,
occupation and possession of the suit premises. The defendant no.
1 as well as defendant no. 2 has threatened him to evict from the
suit premises therefore, he is seeking relief that he should not be
dispossessed from the suit premises without following due
procedure of law. Therefore, it is contended by the plaintiff that
dispute between the party is not dispute between the landlord and
tenant. The present suit is not between licensor and licensee. The
plaintiff also denied that the defendant no.1 is the licensor. Hence,
the plaintiff submitted that the suit is within the jurisdiction of
Civil Court. Hence, the plaintiff prayed for rejection of Notice of
Motion.
5. I have heard both the sides. Perused Notice of Motion, reply
as well as pleading in the plaint. It is well settled law that the
plaint can be rejected under Order 7 Rule 11 of CPC, if the
condition enumerated in the provisions are fulfilled. The relevant
facts which needs to be looked into for deciding the application are
the averments of the plaint only and not the pleadings in the
Written Statement. If on an entire and meaningful reading of the
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plaint, it is found that the suit is manifestly vexatious and merit
less in the sense of not disclosing the right to sue, the court should
exercise power under Order 7 Rule 11 of CPC. The averment
made in the Written statement as well the contentions of the
defendant are wholly immaterial while considering the prayer of
the defendant for rejection of the plaint. Even when the allegation
made to the plaint are taken to be correct as a whole on their face
value, if they show that the suit is barred by any law and do not
disclose the cause of action, the application for rejection of plaint
can be entertained and the power under order 7 Rule 11 of CPC
can be exercised. If the clever drafting of the plaint has created
illusion of the cause of action, the court will nip it in the bud at the
earliest so that bogus litigation will end at the earlier stage. a) T
Arivandanam V/s. T.V Satyapal reported in (1977) 4 CC 467.
b) Madanuri Sri Rama Chandra Murthy V/s. Sayed Jalal
reported in (2017) 13 SCC 174.
6. Therefore, in view of the above settled position of law, I have
to only consider the pleadings of the plaint. I have perused the
plaint. It is the specific case of the plaintiff that in view of the
consent term filed in the disposed off suit No. 5550/1997 he has
been put in a possession of the suit premises by the late husband
of defendant no. 1. It is contended by the plaintiff that
subsequently, the late husband of defendant no. 1 executed leave
and license Agreement dated 01.04.2007 initially for a period of
36 months. Thereafter, the plaintiff paid time to time amount
demanded by the late husband of defendant no. 1.
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7. It is submitted by the plaintiff that after the expiry of leave
and license Agreement dated 01.04.2007, the late husband of
defendant no. 1 further executed another leave and license
Agreement dated 01.04.2010 for a period of 120 months i.e. 10
years from commencing from 01.04.2007 to 31.03.2020.
Therefore, in pursuance of the aforesaid agreement, he is in
possession of the suit premises.
8. It is further submitted by the plaintiff that the husband of
defendant no. 1 expired on 17.12.2013 thereafter, the defendant
no. 2 claimed to be the owner of suit premises. It is further
submitted that during life time of husband of defendant no. 1, he
paid total amount of Rs. 18,57,000/ to him and also an amount of
Rs. 25,00,000/ to the defendant no. 2 as and when demanded by
him. However, inspite of payment of such huge amount, the
defendant no. 1 on 11.10.2019 threatened to dispossess the
plaintiff from the suit premises.
9. It is submitted by the plaintiff that he is in peaceful
possession of suit premises and he can not be dispossessed without
following due procedure of law. Therefore, he constrained to file
the instant suit seeking relief of permanent injunction restraining
the defendants or their servant or agent or employees from
dispossessing him from suit premises.
10. The plaintiff further seeking direction of this Court that the
defendant no. 1 and 2 be directed to give necessary no objection
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and signature on the various forms to the plaintiff for the purpose
of renewal of all requisite licenses in relation to the business.
11. The provisions of section 41 of Residency Small Causes Court
Act which pertains to recovery of certain immovable property and
certain license, fees and rent is read thus as under :
Para 41. Suits or proceedings between licensors and
licensees or landlords and tenants for recovery of
possession of immovable property and license fees or rent,
except to those to which other Acts apply to lie in Small
Cause Court.
(1) Notwithstanding anything contained elsewhere in
this Act but subject to the provisions of subsection (2),
the Court of Small Causes shall have jurisdiction to
entertain and try all suit and proceedings between a
licensor and licensee, or a landlord and tenant, relating
to the recovery of possession of any immovable property
situated in Greater Bombay, or relating to the recovery of
the license fee or charges or rent thereof, irrespective of
the value of th subject matter of such suits or
proceedings.
12. The Hon’ble Apex Court in case of Mansukhlal Dhanraj
Jain & Ors. V/s. Eknath Vithal Ogale reported in “AIR 1995
Supreme Court 1102” while considering the phrase relating to
recovery of possession as appearing in Section 41 (1) has held as
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under :
“Section 41(1) does not employ words “suits and
proceedings for recovery of possession of immovable
property”. There is a good deal of difference between the
words “relating to the recovery of possession” on the one
hand and the terminology “for recovery of possession of
any immovable property”. The words “relating to” are of
wide import and can take in their sweep any suit in
which the greivance is made that the defendant licensor
is threatening to illegally recover possession from the
Plaintifflicensee. Suit for protecting such possession of
immovable property against the alleged illegal attempts
on the part of the defendant to forcibly recover such
possession from the plaintiff, can clearly get covered by
the wide sweep of the words “relating to recovery of
possession” as employed by Section 41(1). Therefore,
such suit could lie within the exclusive jurisdiction of
Small Causes Court and the City Civil Court would have
no jurisdiction to entertain such suits.
13. Thus, after considering the pleadings in the plaint and law
laid down by the Hon’ble Apex Court and the provisions of
Presidency Small Causes Court and provisions or Order 7 Rule 11
of CPC in my view, the plaintiff cleverly sought relief of not to
dispossess without following due procedure of law, on the basis of
his admitted continuous possession would not confer jurisdiction
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of this Court. In my view, the present suit is barred by Section
41(1) of Presidency Small Causes Court. Hence, plaint needs to be
rejected.
ORDER
1. Notice of Motion No. 4701 of 2019 is hereby made absolute
in terms of prayer clause (a) with cost.
2. Notice of Motion No. 4701 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 14.02.2020 Greater Bombay.
Dictated on : 14.02.2020
Typed on : 14.02.2020
Draft Submitted on : 14.02.2020
Checked on : 17.02.2020
Signed on : 17.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
17/02/2020 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
14/02/2020
JUDGMENT/ORDER signed by P.O.
on
17/02/2020
JUDGMENT/ORDER uploaded on 17/02/2020
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