Order 17

Order Details: Order on Exhibit
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(CNR No. MHSCA3-001177-2022)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.24
IN
R.A.D. SUIT NO. 429 OF 2022
Haji Mehmood Abdul Rahman Jalil Pitalwala ... Plaintiff
Versus
1. Ram Kumar Jalan Public Charitable Trust
and others … Defendants
Shri. D. D. Singh, Advocate for the plaintiff.
Shri. Jitendra G. Damani, Advocate for defendant Nos.1 to 5.
Coram : Shri. A. J. Fatale, Judge.
C.R.No.34 (BB).
Date : 21.07.2023.
ORAL ORDER :-
1. Perused the application, say of the plaintiff and record.
2. Heard Advocate of defendant Nos.1 to 5 and Advocate of
plaintiff.
3. Present application is filed by Advocate of defendant
Nos.1 to 5 for rejection of plaint as per Order VII Rule 11 of the Code
of Civil Procedure. It is argued by the Advocate of defendant Nos.1
to 5 that defendant Nos.1 to 5 are landlords being the Trust and
trustees, but there is no relationship with the plaintiff as well as
defendant Nos.6 and 7 as that of landlord and tenant. One M/s.
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Swastik Engineering is the actual tenant in respect of Shed No.29,
Bombay Talkies Compound and not the plaintiff as well as defendant
Nos.6 and 7. Defendant No.6 is the mother of plaintiff and defendant
No.7. There is a dispute between family members of one late Haji Ali
Abdul Rehman Jalil Pitalwala, who was never the tenant of these
defendants. Therefore, the suit is filed by the plaintiff without cause
of action. M/s. Swastik Engineering is not party in the suit. It is
necessary to establish whether the said M/s. Swastik Engineering
Corporation Work was/is a proprietary concern or partnership firm.
Plaintiff is seeking relief of simplicitor injunction in consequences to
claiming the tenancy right. As there is dispute between plaintiff and
defendant Nos.6 and 7, this Court is not having jurisdiction to pass
any such order as prayed by plaintiff. The documents which are filed
by the plaintiff shows that defendant No.6 is proprietor of alleged
M/s. Swastik Engineering. In such circumstances, plaintiff is not
having any right or locus-standi to file present suit. He lastly prayed
for rejection of plaint.
4. Plaintiff filed reply vide Exhibit No.31 and strongly
opposed the application. It is argued by Advocate of plaintiff that
application filed by defendant Nos.1 to 5 is illegal, frivolous and
liable to be rejected. Filing of application by defendant Nos.1 to 5
itself would indicate that there is a triable issue of relationship of
landlord and tenant arises for consideration in the present suit.
Plaintiff has filed the suit and sought the declaration of tenancy. The
cause of action can be decided only on the basis of plaint and not on
the basis of defence of written statement filed by defendant.
Defendant Nos.1 to 5 have not filed their written statement. The rent
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receipt itself shows the possession of deceased father of the plaintiff
as tenant on the suit premises. Merely because the rent receipt
stands in the name of M/s. Swastik Engineering that itself does not
mean that Haji Abdul Rehman Jalil Pitalwala was not the tenant of
suit premises. The father of the plaintiff was monthly tenant in
respect of the suit premises and he was sole proprietor of M/s.
Swastik Engineering Corporation. Now, defendant Nos.6 and 7 with
collusion to defendant Nos.1 to 5 trying to show that only they are
tenants of suit premises, so it is required to the plaintiff to file the
present suit. Plaintiff has sufficiently made pleadings in the plaint in
respect of cause of action to file suit. He lastly prayed for rejection of
application. Advocate of plaintiff is relied upon the citations of
Hon’ble Bombay High Court in case of Export Credit Guarantee
Corporation of India Ltd. Vs. T. Mathew & Ors. (2014(2)
Bom.C.R.481) and Nishit M. Prabhu Verlekar Vs. Chandranath
Vinayak Dhume and others (AIR 1986 Bombay 46).
5. It is settled principle of law that at the time of deciding
application filed under Order VII Rule 11 of the Code of Civil
Procedure, only pleadings of plaintiff is required to be taken into
consideration. On going through the plaint, it appears that plaintiff
has filed suit for declaration of tenancy and also for relief of granting
injunction, pending the hearing and final disposal of the suit. It is the
pleadings of the plaintiff that defendants in collusion and at
connivance with each other denying plaintiff’s exclusive right over
the suit premises. Late Haji Abdul Rehman Jalil Pitalwala during his
lifetime on or about 01.04.1961 acquired the tenancy rights of the
suit premises. Haji Abdul Rehman Jalil Pitalwala is father of plaintiff.
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Father of plaintiff died on 09.02.1995. Defendant No.6 is wife of Haji
Abdul Rehman Jalil Pitalwala. Defendant No.7 is brother of plaintiff.
Original tenant was running and conducting business of Metal
Foundry work in the name and style of Swastik Engineering
Corporation. Original tenant was sole proprietor of said Swastik
Engineering Corporation. The rent receipt was issued either in the
personal name or in the name of proprietary concern named as
Swastik Engineering. During the lifetime of original tenant and even
after his death plaintiff has been paying rent of the suit premises and
as such the plaintiff is in lawful custody of rent receipts. After death
of original tenant, plaintiff in the capacity of monthly tenant of suit
premises has been paying monthly rent of the suit premises and
plaintiff is in lawful custody of rent receipts.
6. It is further pleading of the plaintiff that original tenant,
out of natural love and affection and only for the sake of convenience
recorded the name of defendant No.6 in the record of said business
establishment known as Swastik Engineering Corporation. During
the lifetime of original tenant, plaintiff was assisting him and was
running and conducting the business carried on the suit premises and
using, occupying the suit premises along with the said original
tenant. In fact plaintiff was running and conducting the said business
of Swastik Engineering Corporation along with original tenant and
was always looking after day to day affairs and activities of the said
business along with original tenant. It is further pleading of the
plaintiff that even after death of original tenant, plaintiff continued
and carried on business from the suit premises and looked after and
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maintained affairs and activities of the business of Swastik
Engineering Corporation.
7. Although there is appears to be dispute between plaintiff
and defendant Nos.6 and 7 but on that count it cannot be said at this
stage that Swastik Engineering Corporation was not running by
father of plaintiff and father of plaintiff was not tenant of defendant
Nos.1 to 5 in respect of suit premises.
8. I have gone through the citations on which Advocate of
plaintiff is relied upon. In the case of Export Credit (Supra), it is held
by the Hon’ble Bombay High Court that the Court cannot reject plaint
on the basis of allegations made by defendants in written statement.
Once Court is satisfied that plaint prima facie shows the cause of
action, Court is not required to make an elaborate enquiry into
doubtful or complicated questions of law or fact. Court cannot
consider whether plaintiff would ultimately succeed in claims made
by him or not while deciding application under Order VII Rule 11 of
the Code of Civil Procedure.
9. In the case of Nishit M. Prabhu (supra), Hon’ble Bombay
High Court held that once a summons for settlement of issues is
served on the defendants they are bound to file their written
statement and there is no provision whatsoever in the Code which
provides that a defendant can raise any objection to the
maintainability of the suit by any application before filing his
defence. If by piecemeal application they are permitted to take
objections, and even assuming that such course does not contravene
any procedure of the law, it may, however, lead to undesirable result
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and a cantankerous defendant may go on filing one application after
other in raising all sorts of objections and inviting the trial Court to
decide those applications without filing his written statement. The
rejection of the plaint for declaration of ownership of land, on basis
of an application made by the defendants without filing their
statement, was improper.
10. On going through the pleadings of plaintiff, it appears to
me that there is sufficient pleadings in respect of cause of action
arose to the plaintiff for filing present suit. So on the alleged
grounds, present plaint cannot be rejected. In my opinion it cannot be
said that this Court is not having jurisdiction to decide the
relationship between plaintiff and defendant Nos.1 to 5. In my
opinion application filed by Advocate of defendant Nos.1 to 5 is liable
to be rejected. Hence, I pass the following order:-
: ORDER :
1. Application stands rejected.
2. No order as to costs.
(A. J. Fatale)
Date : 21.07.2023 Judge, C.R.No.34(BB).
Order Dictated & Typed on : 21.07.2023
Order Checked & Signed on : 24.07.2023
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