Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 13
IN
R.A.D. SUIT NO. 83 of 2023
(CNR No. :- MHSCA3-000095-2023)
Mr. Rajesh Damji Vira ... Plaintiff
Versus
M/s. Indrayani Estate Developers Pvt. Ltd. ... Defendant
Mr. M. R. Irani, Ld. Advocate for the Plaintiff.
Mr. K. K. Thakker, Ld. Advocate for the Defendant.
Coram :- P. K. Kharate, Judge
C. R. No. 36 [B.B.]
Date :- 28/11/2023
ORDER :
The defendant has filed present application under Order 7
Rule 11(a) and (d) of the Code of Civil Procedure, 1908 stating that
as per the contention of the plaintiff the suit premises is not in
existence as on the date of filing of suit. The tenanted premises
when demolished, tenancy rights stand extinguished. Hence, there
is end of tenancy. Moreover, the plaintiff has not disclosed the
cause of action.
2. The defendant further averred that the defendant never
accepted the rent from the plaintiff since 2012. The suit is filed in
the year 2023. The last rent receipt filed by the plaintiff is of
August, 2011. Moreover, as per the version of the plaintiff he has
vacated the suit premises prior to 14/01/2020. Hence, the suit is
barred by law of limitation. Moreover, the issue in the present suit
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is also directly and substantially related with the R.A.E. Suit No.
279 of 2018. The said suit is filed for eviction of the present
plaintiff on various grounds. Hence, prayed that the plaint be
rejected as per Order 7 Rule 11 of the CPC and in alternative
prayed to stay the present suit till the decision of the R.A.E. Suit
No. 279 of 2018.
3. The say filed by the plaintiff vide Exh. 15 stating that the
building was demolished by the BMC as per Section 354 of the
MMC Act. The rights of the plaintiff as a tenant are protected as
per the provisions of law. The plaintiff has denied all remaining
allegation of the defendant. The suit premises is demolished on
20/02/2020. The issue of limitation is the mix question of facts
and law. Moreover, the plaintiff stated that the subject matter of
present suit and R.A.E. Suit No. 279 of 2018 are different one.
Hence, prayed to reject the application.
4. Heard both sides at length. The advocate for defendant
argued that the suit premises is not in existence. Moreover, in para
no. 7 and 8 of the plaint it is clearly mentioned that suit building is
demolished. Hence, plaintiff has no right to file the present suit.
5. The advocate for the plaintiff argued that as per Order 7
Rule 11 of the CPC if the plaintiff has not mentioned the cause of
action then only the plaint can be rejected. Moreover, the issue of
limitation is mix question of facts and law. The tenancy is come to
an end only by way of the decree of the Court or by surrender. The
suit premises was in dilapidated condition. Hence, right of the
plaintiff as a tenant is still in existence in new building.
/home/steno36/7. P.K. Kharate/11. November, 2023/Orders/28.11.2023/EXH-13 RAD 83 of 2023. rejection of plaint under Order 7 Rule 11.28.11.2023.odt KCP
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6. On perusal of application and say, it is necessary to see
the relevant provision of Order 7 Rule 11 of the CPC which is as
below:-
11. Rejection of plaint- The plaint shall be rejected in the
following cases;
(a) where it does not disclose a cause of action;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
7. In the present case, on perusal of para nos. 7 and 8 of the
plaint, it appears that the suit building is demolished by the
MCGM due to dilapidated condition. The most important thing is
that the name of the present plaintiff is mentioned in the list of
occupants issued by the Assistant Commissioner of the Municipal
Commissioner. Moreover, as per the letter of the Officer of the
MCGM it appears that the plaintiff has vacated the suit premises
on 18/01/2020. On perusal of the record, it appears that the
plaintiff has vacated the tenanted premises due to dilapidated
condition of the suit building. It also means that, the plaintiff is the
tenant of the suit premises at prima facie stage.
8. In the present case, plaintiff has mentioned in para no. 9
of the plaint that the tenancy in respect of the suit premises is valid
and subsisting and will continue to have right in the new building
to be constructed upon redevelopment of the said property. It is
admitted fact that till demolition of the suit building plaintiff as a
tenant was in the possession of the suit premises having area 23.85
sq.meter as per the record of the Municipal Corporation. But, now
/home/steno36/7. P.K. Kharate/11. November, 2023/Orders/28.11.2023/EXH-13 RAD 83 of 2023. rejection of plaint under Order 7 Rule 11.28.11.2023.odt KCP
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defendant is denying tenancy right of the plaintiff due to the
demolition of the building by MCGM due to dilapidated condition.
But, it is very settled position of law that tenancy never comes to
an end due to the demolition of the building by MCGM.
9. The defendant relied on Abdul Khuddus Vs. H. M.
Chandiramani (dead) through Lrs. & Ors. reported in 2021(10)
SCALE 698. In the said citation, the Hon’ble Apex Court held that
there are two categories of the tenants i.e. tenant under TP Act and
other under State Rent Laws. The Hon’ble Apex Court further held
that in view of the binding decisions of the larger bench and
keeping in view the fact that the judgment of this Court in Shaha
Ratansi Khimji was dealing with the rights of contractual tenant,
the statutory tenant cannot seek repossession after the demolition
of building under Section 108(B)(e) of the TP Act as the rights and
liabilities of a statutory tenant have to be found under the Rent Act
alone.
10. Hence, considering the above citation and facts of the
present case it appears that the plaintiff has filed suit under
Section 33 of the Maharashtra Rent Control Act. Hence, he has
right to file the present suit.
11. The defendant has further relied on G. M. Heights LLP
Vs. Municipal Corporation of Greater Mumbai and Ors. in Writ
Petition No. 5302 of 2022 dated 29/03/2023. But, on perusal of
the facts of the said case, it appears that two commercial premises
are reserved on tenancy basis in the new building. It is no doubt
that the tenants have no right to reconstruct or redevelop the
/home/steno36/7. P.K. Kharate/11. November, 2023/Orders/28.11.2023/EXH-13 RAD 83 of 2023. rejection of plaint under Order 7 Rule 11.28.11.2023.odt KCP
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building as per the above citation.
12. The defendant has also relied on Vannattankandy Ibrayi
Vs. Kunhabdulla Hajee reported in (2001) 1 SCC 564. In the said
citation the Hon’ble Apex Court held that on destruction of the
shop the tenancy cannot be said to be continuing since the tenancy
of a shop presupposes a property in existence and there cannot be
subsisting tenancy where the property is not in existence. Thus
when the tenanted shop has been completely destroyed, the
tenancy right stands extinguished as the demise must have a
subject matter and if the same is no longer in existence, there is an
end of the tenancy and therefore, Section 108(B)(e) of the Act has
no application in case of premises governed by the State Rent Act
when it is completely destroyed by natural calamities.
13. The present application is filed as per Order 7 Rule 11 of
the CPC. The plaintiff has mentioned the correct cause of action
about his declaration of tenancy right as per Section 33 of the
Maharashtra Rent Control Act. Moreover, the issue of limitation is
mix question of facts and law. The pleading should be read as
whole to see the cause of action. It is very settled position of law
that by mere demolition of the suit premises by the MCGM the
tenancy never be terminated or extinguished. It is only
extinguished by the act of the God. Hence, the plaint cannot be
rejected as per the provision of Order 7 Rule 11(a) and (d) of the
CPC.
14. The only issue remains in the present matter is in respect
of whether present matter should be stayed as per Section 10 of the
CPC or not. The advocate for defendant has brought my attention
/home/steno36/7. P.K. Kharate/11. November, 2023/Orders/28.11.2023/EXH-13 RAD 83 of 2023. rejection of plaint under Order 7 Rule 11.28.11.2023.odt KCP
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to the plaint in R.A.E. Suit No. 279 of 2018. The defendant has
admitted the present plaintiff as a tenant in the said suit. It means,
the defendant has admitted the tenancy rights of the plaintiff. But,
the advocate for the plaintiff brought my attention to the
alternative relief claimed by the plaintiff in respect of the
reservation of the commercial premises in the new building by the
defendant and not to create third party interest by the defendant.
Hence, considering the reliefs of the plaintiff in present suit and
denial of the rights of the plaintiff as a tenant by the defendant, it
is not necessary to stay the present suit. Hence, considering the
above discussion there is no merit in the application of the
defendant. Hence, I pass the following order :
ORDER
1. The application below Exh. 13 stands rejected.
2. No order as to costs.
(Dictated and pronounced in open Court.)
sd/-
(P. K. Kharate)
Date : 28/11/2023 Judge, C.R. No. 36
Order dictated and typed on : 28/11/2023
Order checked and signed on : 28/11/2023
/home/steno36/7. P.K. Kharate/11. November, 2023/Orders/28.11.2023/EXH-13 RAD 83 of 2023. rejection of plaint under Order 7 Rule 11.28.11.2023.odt KCP
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