Order 6

Order Details: Order on Exhibit
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CNR NO.MHSCA-30006952023
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.24
IN
R.A.E. SUIT NO. 329 OF 2023
Mr. Surendra Khurdhan Pasi . . Plaintiff.
Versus
Mr. Shambunath Sitaram Jaiswal . . Defendant.
Mr. R. P. Dwivedi : Advocate for Plaintiff.
Mr. S.A. Mishra : Advocate for Defendant.
Coram : A.S. Pandagle, Judge
C.R.No.37
Date : 3/9/2025.
ORAL ORDER :
1. Read application and say filed thereon.
2. Heard both sides.
3. Present application is filed on behalf of defendant for
dismissal of suit/rejection of plaint under Order 7 Rule 11 read with
Section 151 of the Code of Civil Procedure, 1908. By filing present
application, it is contended that the plaintiff filed this suit for
eviction under false and frivolous grounds against the defendant. The
defendant by filing written statement denied all the false allegations
and contentions made by the plaintiff in the plaint. It is further
contended that plaintiff’s in para 1 of the plaint described the suit
property with CTS Number i.e. CTS No.235/65 to 70, CTS
No.235/80 to 83, CTS No.235/85 to 88, CTS No.235/112 to 116,
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CTS No.235/129 of Village Mulgaon, Taluka-Andheri, admitted the
same is declared slum vide GR dated 14/11/1977 and also Slum
Rehabilitation Scheme is implemented. Copy of slum declaration
and Annexure-II issued by SRA showing the name of defendant at
Serial No.238 and letter dated 4/3/2011 issued by the surveyor
annexed herewith. It is further contended that the plaintiff
knowingly made false statement on oath in plaint at paragraph
No.20 that, “The suit premises does not fall under the slum area
and/or Maharashtra Vacant Land Act and therefore the suit is not
barred by Law”.
4. It is further contended by the defendant that the said
averments made in the plaint is false and fraud played upon Court to
institute the suit. It is settled principle of law, if suit is filed by
playing fraud and making false statement, then the suit has to be
dismissed. It is further contended that the suit is not maintainable as
admittedly the plaintiff has not obtained any permission from the
competent authority to file the present suit as required under the
Law. It can be seen from the plaint itself that there is no reference
and/or any averments and/or any documents annexed to the plaint
about obtaining permission to file suit from the competent authority
as required under the Law. On the contrary, fraudulent statements
are made by the plaintiff in plaint to institute the suit. It is further
contended that in view of making false statement on oath and
playing fraud upon the Court apart from in absence of any
permission to file suit from the competent authority, the suit filed by
the plaintiff is not maintainable under the law and the plaint is
required to be rejected. Therefore submitted that the plaint may be
rejected in accordance with law for making false statement and
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playing fraud upon the Court.
5. On the other hand, plaintiff by filing handwritten say
strongly objected this application and contended that application is
not maintainable, it is baseless, unwarranted and filed with intention
to prolong the matter. It is further contended by the plaintiff that as
on today suit property not declared as a slum, same was set aside on
24/12/2021, passed below on Appeal No.21 of 2019, therefore slum
declaration dated 14/11/1977 is not enforce and/or applicable to
present matter. Therefore submitted that application may be rejected
with heavy compensatory costs.
6. The defendant by filing affidavit in rejoinder Exh.25
repeated, reiterated and confirmed all the averments, statements and
submissions made in by application and deny all the contrary and in
consistent thereto and submitted that application taken out by the
defendant may be made absolute.
7. From the rival contentions of both the parties, following
points are arises for my determination to which I have given my
findings thereon alongwith reasons are as under :
POINTS FINDINGS
1. Whether the plaint is liable to be
rejected/the suit is liable to be
dismissed under Order 7 Rule 11
of the Code of Civil Procedure,
1908 ?
. . In the negative.
2. What order ? . . As per final order.
: R E A S O N S :
AS TO POINT NO.1 :
8. After hearing both sides, gone through contents of
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application and reply filed thereon. Also gone through record of
proceeding, gone through plaint as well as written statement filed by
defendant. Also gone through provisions of Order 7 Rule 11 of the
Code of Civil Procedure, 1908. Order 7 Rule 11 reads as under :
Order 7 Rule 11 rejection of plaint – The plaint shall be
rejected when (a) it does not disclose cause of action,
(b) the relief claimed under valued, (c) when the relief
claimed is properly valued but plaint is written upon
paper insufficiently stamped, (d) when the suit appears
from statement in the plaint to be barred by any law.
9. In the above circumstances, the plaint shall liable to be
rejected under Order 7 Rule 11 of the Code of Civil Procedure, 1908.
It is contention of the defendant that in para 1 of the plaint the
plaintiff described the suit property with CTS number, admittedly the
same is declared slum vide GR dated 14/11/1977 and also Slum
Rehabilitation Scheme is implemented. It is also the contentions of
the defendant that the plaintiff knowingly made false statement on
oath in the plaint that, “The suit premises does not fall under the
slum area and/or Maharashtra Vacant Land Act and therefore the
suit is not barred by Law”. It is also the contention of the defendant
that the suit is not maintainable as the plaintiff has not obtained any
permission from the competent authority to file the present suit as
required under Law.
10. On the light perusal of the plaint filed by the plaintiff, it
appears from the face of the plaint that the plaintiff specifically
pleaded that the suit premises does not fall under the slum area
and/or Maharashtra Vacant Land Act and therefore the suit is not
barred by Law. For the purpose of invoking the powers under Order
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7 Rule 11 of the Code of Civil Procedure, 1908, the averments in the
plaint are only the germane factor and are only the relevant. The
averments made in the written statement are not material while
deciding the application under Order 7 Rule 11 of the Code of Civil
Procedure, 1908. It is the contention of the plaintiff that the suit
premises does not fall under the slum area and/or Maharashtra
Vacant Land Act and therefore the suit is not barred by Law and it is
the contention of the defendant that the property described in para 1
of the plaint is declared slum vide GR dated 14/11/1977, it is also
the contention of the defendant that the plaintiff has not obtained
any permission from the competent authority to file the present suit
as required under the Law. On the light perusal of the record of the
proceeding, from the pleading of both the parties, issues are framed
below Exh.15, issue No.5 is in respect of slum declaration is also
framed in this suit which are as ‘Does defendant prove that the suit
premises is situated in a declared slum area ?’. There is rival
contention about it, it is the contention of the plaintiff that the suit
property is not under slum and it is the contention of the defendant
that the property described in the plaint by the plaintiff is declared
vide GR dated 14/11/1977 and plaintiff has not obtained any
permission from the competent authority to file the present suit,
issue No.5 regarding it, is already framed below Exh.15. The
plaintiff alongwith list Exh.17 filed certified copy of judgment dated
24/12/2021 passed in Appeal bearing No.21 of 2019 by the Special
Slum Tribunal, Mumbai. Whether the suit property is situated under
slum area or not, is matter of enquiry, it can be decided after
evidence. For the purpose of invoking the powers under Order 7
Rule 11 of the Code of Civil Procedure, 1908, the averments in the
plaint are only the germane factor and are only the relevant. All
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above contentions raised by the defendant in his application for
rejection of the plaint are the matter of merits requires to be decided
after recording evidence and cannot be considered in the application
under Order 7 Rule 11 of the Code of Civil Procedure, 1908, for
rejection of the plaint/dismissal of suit. No ground made out by the
defendant for rejection of the plaint/dismissal of suit under Order 7
Rule 11 of the Code of Civil Procedure, 1908. The parameters given
under Order 7 Rule 11 of the Code of Civil Procedure, 1908, for
rejection of plaint/dismissal of suit not appears in the application of
the defendant, therefore application is liable to be rejected. Hence, I
answered point No.1 in the negative and in answer to point No.2, I
proceed to pass following order.
ORDER
1. Application is rejected.
2. Both parties to bear their own costs.
Bandra - Mumbai. ( A.S. Pandagle )
Date : 3/9/2025. Judge, C.R.No.37.
.
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