Order 1

Order Details: Order on Exhibit
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CNR No. MHSCA-3000644-2023
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit 17
In
R. A. D. Suit No. 301 of 2023
1. Ashok Dhanika Prasad Pandey & Anr. ….... Plaintiffs.
V/s.
1. M/s. My Home Foundation Group & Anr. …... Defendants.
Advocate for the plaintiffs : Mr. U. V. Singh
Advocate for defendant No. 2 : Mr. Swapnil Sandim
Coram : K. M. Kayangude,
Judge, C.R. No. 38 (B.B.)
Date : 09.11.2023
Oral Order :
This is an application on behalf of the defendants No. 2 for
rejection of the plaint under Order VII Rule 11 (a) of the Code of Civil
Procedure, 1908.
2. It is asserted that the plaint does not discloses cause of
action. The reliefs claimed in the plaint cannot be granted by this Court
based on the averments in the plaint. The plaintiffs purportedly
claimed to be the owners of structures and claiming relief of perpetual
injunction and directory reliefs for permanent alternate accommodation
agreement. The plaint is returned by the Hon’ble Bombay City Civil
Court at Dindoshi and the same is presented as R.A.D. Suit before this
Court. From the averments of the plaint, the plaintiffs are neither
tenants nor contended tenancy rights in respect of purported structures.
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3. Certain handwritten changes are made in the plaint
without any amendment application being filed or being allowed by this
Court. This is a grave issue and it is necessary to take action against the
plaintiffs. Accordingly, the defendant No. 2 prayed to allow the
application.
4. The application is contested by the plaintiffs by filing reply
vide Exh. 19. As per the plaintiffs, they have set out the cause of action
in plaint para No. 51, 39, 40 and 54. Therefore, the application is not
maintainable. The defence of defendant No. 2 is not material while
deciding present application. The application is not filed by all the
defendants and therefore deserves to be dismissed. In view of the order
of Hon’ble City Civil Court, Dindoshi, this Court have jurisdiction to
decide and entertain the present suit. The defendants are trying to
prolong the matter. The plaintiffs denied that they are claiming the
owners of the structure. It is further contended that handwritten
changes in the plaint are made in compliance of the office objections.
Hence, plaintiffs prayed to reject the application.
5. Heard both sides. It is settled by catena of decisions that
while deciding the application under Order VII Rule 11 of the Code of
Civil Procedure, 1908 the only relevant and material consideration is
the averments in the plaint. The defence of the defendant cannot be
considered while deciding such application.
6. As per the defendant No. 2, the plaintiffs are claiming
ownership rights over the suit premises. For that purpose, the learned
advocate for the defendant No. 2 invited my attention on para No. 36 of
the plaint wherein it is mentioned that the plaintiffs are the owners of
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the suit premises. At the outset, it is worthwhile to mention that while
considering the plaint, it needs to be considered as a whole. No doubt,
in para No. 36, there is a averments that the plaintiffs are the owners of
the suit premises. But, if the plaint is considered as a whole, it appears
that the plaintiffs asserted that Mr. Dhanika Prasad Pandey and Smt.
Shamadevi Dhanika Prasad Pandey were in occupation and possession
of 2 rooms described in plaint para No. 4. In plaint para No. 7 and 11,
it is specifically asserted that landlord Vasantrai Bhuta issued rent
receipts in the name of Mr. Dhanika and Smt. Shamadevi. It is
specifically asserted that the owner and landlord Vasantrai Bhuta
bequeathed estate and property in favour of defendant No. 2. The
defendant No. 2 executed the Conveyance Deed in favour of defendant
No. 1. The plaintiffs are claiming their rights in respect of the suit
premises through their parents, namely Mr. Dhanika and Smt.
Shamadevi. Therefore, if the averments of the plaint are considered as
a whole, it appears that the plaintiffs are claiming tenancy rights
devolved upon them from their parents.
7. In such circumstances where in one sentence, the plaintiffs
asserted that they are the owners of the suit premises is itself not
sufficient to infer that the plaintiffs are claiming their ownership rights
in respect of the suit premises. The plaintiffs are claiming injunction
restraining defendant No. 1 from demolishing the suit premises and
also withholding essential supply without following due process of law.
The another prayer is in respect of disclosure of provision for
permanent alternate accommodation. Therefore, from the prayers in
the plaint, it appears that the plaintiffs are seeking enforcement of their
tenancy rights. Hence, the contentions of the defendant No. 2 that the
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plaintiffs are claiming ownership in respect of purported structures is
devoid of merits.
8. The strong objection has been raised the learned advocate
for both the defendants that after return of the plaint, handwritten
changes have been made by the plaintiffs without obtaining any order
from the Court. It is a matter of record that the Hon’ble City Civil
Court at Dindoshi returned the plaint on the ground of want of
jurisdiction to decide the controversy involved in the present suit.
Accordingly, after the return of the plaint, the same is presented before
this Court. It appears from the checklist of examination of plaint that
various objections were raised before the registration of the present suit.
It appears that in order to remove the office objections raised by the
Process Department, handwritten changes are made in the plaint.
Therefore, I do not found any illegality committed by the plaintiffs
while mentioning the handwritten changes in the plaint.
9. The learned advocate for the defendants also submitted
that when the Court is not in a position to grant the reliefs sought in the
plaint, then the only option available to the Court is to reject the plaint.
In support of submission, he relied on ration laid down in the case of
Rajendra Bajoria and others v/s Hemant Kumar Jalan and others
[(2022) 12 Supreme Court Cases 641] and Apollo Tyres Ltd v/s C. P.
Sabastian [(2009) 7 S.C.R. 336].
10. In the case of
Rajendra Bajoria (supra), the suit was
instituted by the legal heirs of some of the partners against the legal
heirs of other original partners in the partnership firm for declaration
that the plaintiffs and defendants are entitled for assets and properties
of the firm and also dissolution of firm alongwith other consequential
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reliefs. The Hon’ble Lordship by considering section 40 to 44 of the
Partnership Act and also taking into consideration the clauses in the
partnership agreement come to the conclusion that the legal heirs of the
deceased partners are not entitled and locus standi to claim such reliefs.
In that contingency, the plaint was rejected.
11. In the case of
Apollo Tyres (supra), the relief claimed was
in respect of contract of personal service which is barred by section
14(b) of the Specific Relief Act, 1963 and therefore the plaint was
rejected.
12. In the present matter, no doubt though the suit has been
registered as a R.A.D. Suit, but no relief of declaration of character as a
tenant in respect of the suit premises have been prayed by the plaintiffs.
But, the plaintiffs claimed the injunction restraining the defendants
from demolishing the suit premises without following due process of
law. As mentioned above, considering the averments in the plaint as a
whole, the plaintiffs are claiming tenancy rights and the enforcement of
the same. Considering the averments in the plaint as the plaintiffs are
seeking protection of their tenancy rights, this Court is having exclusive
jurisdiction to decide such dispute and also grant relief of injunction
prayed by the plaintiffs. Therefore, the citations relied on by the
defendants are not applicable to the case in hand.
13. As mentioned above, the plaint clearly discloses the cause
of action to institute the present suit. In the result, there is no ground
as mentioned by the defendant No. 2 to reject the plaint under Order
VII Rule 11 of the Code of Civil Procedure, 1908. Hence, it is a fit case
to reject the application. Accordingly, following order.
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:: O R D E R ::
Application Exh. 17 stands rejected.
(Dictated and pronounced in the open court.)
sd/-
(K.M. Kayangude)
Date : 09.11.2023 Judge, C.R. No. 38 (B.B.)
Dictated & Typed on : 09/11/23
Checked & Signed on : 10/11/23
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