Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT - 30
IN
L. E. SUIT NO. 149 OF 2021
(CNR-MHSCA-30013012021)
1. Smt. Ranjana R. Tambe & Ors. ...Plaintiffs.
Versus
1. Smt. Jankabai R. Kakad & Ors. ...Defendants.
Mr. Anthony D’silva, ….Ld. Advocates for plaintiffs.
Mr. Amol Ratnaparkhe, ….Ld. Advocates for defendants.
Coram: R. R. Kale,
Judge, C. R. No. 35,
Date : 28th November, 2023.
ORAL ORDER :-
The present application is filed by defendant Nos. 1 and 4
for rejection of plaint under Order 7 Rule 11 of Code of Civil Procedure,
1908 ( hereinafter referred to as ‘C.P.C.’)
2. In brief, it is the contention of above defendants in their
application that, present suit is false and vexatious and is filed in order
to harass these defendants and their family members. The husband of
defendant No. 1 has purchased the suit premises on 24.12.1971 from
deceased Bhikaji Tambe on consideration of Rs. 8,000/- vide a Deed.
Thus, the defendant No. 1 and her husband are legal owners of suit
premises. There exists no relationship between the plaintiff and
defendant No. 1 as a Licensor and Licensee.
3. The defendant Nos. 1 and 4 further submit in their
application that, the defendant No. 2 who is the Society has issued
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Share Certificate in the name of defendant No. 1 and accordingly, they
have issued Share certificate on 19.08.2001. Due to the old age of
defendant No. 1, she has gifted the suit premises to her grandsons on
22.07.2022. The plaintiffs do not have concern with the suit premises
and in order to grab the said property, they have filed present false suit
which is liable to be dismissed. The plaintiffs have not adduced any
evidence to show that, they are legal heirs of deceased Bhikaji Laxman
Tambe. Plaintiffs are trying to mislead the Court. The defendant No. 1 is
the sole owner of suit premises and she has all the documents to prove
the same. Thus, plaint may kindly be rejected under Order VII Rule 11
of C.P.C. Contending all these grounds, the above defendants have
prayed for grant of the application.
4. The plaintiffs have strongly opposed the present application
by filing reply at Exh.31 to this application. It is the say of the plaintiffs
in brief that, present application is false and frivolous and hence, not
maintainable in the eyes of law. The plaintiffs have denied that, the
defendant No. 1 and her husband became the owner of the suit
premises vide Deed dated 24.12.1971. According to the plaintiffs, the
agreements dated 16.01.1971 as well as 24.12.1971 and also Share
Certificate are false and fabricated documents. The plaintiffs further
denied that, the defendant No. 1 and her husband were members of the
Society i.e. defendant No. 2 since year 1971. There is no legal valid sale
agreement shown by above defendants as to how the husband of
defendant No. 1 became owner of the suit premises.
5. The plaintiffs further submitted in their reply at Exh. 31
that, the defendant No. 1 seems to be unaware of the purpose of the
suit and is assuming that the suit is filed by a landlord against the
tenant. She having no justification of the allegation challenging that the
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plaintiffs are not the heirs of Mr. Bhikaji Tambe. The alleged Gift Deed
was a reaction of the defendant No. 1 to frustrate the purpose of the
present case and cause multiplicity of proceedings. The defendant No. 1
is trying to take advantage of all the illegal activities, fabricated
documents and false statements and is pleading sympathy. She wants to
escape the law and therefore, she has filed present false application and
thus, it be rejected. Contending all these grounds, the plaintiffs have
prayed for rejection of the application.
6. From the contents of the application and say filed thereon,
following points arose for my determination and I record my findings
thereon as under : -
Sr. nos. Points Findings
1. Whether the application is liable to
be allowed ?
No.
2. What order ? Application stands
rejected.
: R E A S O N S :
As to Point Nos. 1 and 2:-
7. Heard respective Ld. advocates on behalf of the parties. The
Ld. Advocate for defendant Nos. 1 and 4 has argued that, the plaint
may kindly be rejected under Order VII Rule 11 of C.P.C. and suit may
kindly be dismissed on account of grounds mentioned in the
application. On the contrary, the Ld. Advocate on behalf of the plaintiffs
vehemently argued that, the application of the defendants is not tenable
under Order VII Rule 11 of C.P.C. and therefore, it may kindly be
rejected with costs.
8. Perused the application and say filed thereon. The present
application has been filed under Order VII Rule 11 of the C.P.C. and
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therefore, the said provision needs to be reproduced here:
“Order VII Rule 11. Rejection of plaint – The plaint shall be
rejected in the following cases :-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on
being required by the Court to so correct the valuation within a
time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
written upon paper insufficiently stamped, and the plaintiff on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law ;
(e) where it is not filed in duplicate ;
(f) where the plaintiff failed to comply with the provisions of rule
9:
Provided that the time fixed by the Court for the correction of
the valuation or supplying of the requisite stamp-papers shall not
be extended unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or supplying the
requisite stamp-papers, as the case may be, within the time fixed
by the Court and that refusal to extend such time would cause
grave injustice to the plaintiff.”
9. According to the defendant Nos. 1 and 4, the suit premises
has been purchased by defendant No. 1 and her husband from deceased
Ramchandra Gabaji Kakad on 24.12.1971 vide Deed ; there exists no
relationship between the plaintiffs and defendant No. 1 as landlord and
tenant ; after demise of husband of defendant No. 1, she has become
sole owner of the suit premises ; she has gifted the suit premises to her
grandsons on 22.07.2022 and hence, the present suit is infructuous and
not maintainable, thus plaint is liable to be rejected.
10. Rule-11 speaks of rejection of plaint under four
circumstances- (i) non-disclosure of cause of action (ii) under valuation
of the suit (iii) non-payment of court fee and (iv) bar of suit under any
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provision of law.
11. Provision of Clause (b) is attracted when the relief claimed
by the plaintiff is under-valued. However, the plaintiff on being required
the Court to correct the valuation within a time fixed by the Court, fails
to do so then plaint has to be rejected. Provision of Clause (d) is
attracted where the suit is barred under some law. So far as, question
of law of limitation can be tried along with other issues. Plaint shall
be liable to be rejected under Order VII Rule 11 of the Code more
specifically under Clause (d) only if from the statement in the plaint it
appears that the suit is barred by any law. For that purpose the sole
determining factor for such consideration is the statement made in the
plaint. For an order under Order VII Rule 11 of the Code, it is the plaint
and the plaint only which is to be considered and if the plaint made out
a case indicating a cause of action then the falsity of the claim would
be a matter to be determined at the trial. If the suit found to be
vexatious or based on false assertion, the plaintiff would be liable for
compensatory costs under Section 35-A of the Code.
12. The law has been settled in various decisions that, while
considering an application under Order VII Rule 11 of the Code, the
Court has to look into or to examine the averments made in the plaint
only and the documents on which the claim of plaintiff is based and the
pleas taken by the defendant in his written statement would be
immaterial.
13. An object of the provision of Order VII Rule 11 of the Code
is to ensure that meaningless litigation should not be permitted to
occupy the judicial time of the Court, which is otherwise bound to prove
abortive. The cause of action means whole of the material facts which
is necessary for the plaintiff to allege in order to succeed. It is a bundle
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of facts that give rise for the cause to the plaintiff which he must prove
before he can succeed in his suit. There is a distinction between the
case that there is no cause of action for the suit and that the plaint does
not disclose any cause of action.
14. I have gone through the plaint. According to the plaintiffs,
the plaintiffs are the heirs of late Mr. Bhikaji Laxman Tambe who is the
owner of structure and Flat No. 5/10 Amrut Nagar, Kherwadi, Bandra
(East), Mumbai- 400 051 ; the said flat is in a Society i.e. defendant No.
2 ; Mr. Bhikaji Tambe had constructed the suit premises which came to
be part of defendant No. 2 ; the defendant No. 1 is a gratuitous licensee
without any protection under the provisions of the Maharashtra Rent
Control Act, 1999 ; due to the kind hatred nature of Bhikaji Tambe, he
had allowed Mr. Ramchandra Kakad i.e. husband of defendant No. 1 to
occupy the suit premises free of cost and without any agreement
together with his family on the bare assurances of Mr. Ramchandra
Kakad that he shall vacate the suit premises as and when demanded by
Mr. Bhikaji Tambe. According to further case of plaintiffs, the defendant
No. 1 is bent upon continuing to reside in the suit premises alongwith
the members of her family inspite of being called upon to leave the
same with the active connivance of the defendant No. 2. The plaintiffs
further averred that neither the defendant No. 1 nor her family
members are entitled to continue to reside in the suit premises or any
part thereof. The defendant No. 1 is not willing to vacate the suit
premises as the main intention of the defendant No. 1 is to usurp the
suit premises. The plaintiffs further averred that they are financially
very weak and at present staying on rent since 2013 and have no
premises of their own. Their house in Ambewadi Khar was demolished
in 2013 under Maharashtra Slum Areas (Improvement, Clearance And
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Redevelopment) Act, 1971 scheme, but till date no even the
construction of the building has started and therefore, the plaintiffs are
staying temporarily on rent in the address mentioned in the cause title
hereinabvoe which is not a permanent address and are hence, suffering
great hardship. According to further case of plaintiffs, during the
pendecy of the suit the defendant No. 1 has unauthorizedly without any
right or title gifted the suit premises to defendant Nos. 3 and 4 in order
to defeat the rights of the plaintiffs.
15. I have perused the documents on which the plaintiffs’ claim
is based. From averments made in the plaint, the present suit appears to
be filed for eviction under Section 41 of the Presidency Small Causes
Courts Act, 1882 and according to the plaintiffs, the defendant No. 1 is
the gratuitous licensee of deceased Bhikaji Tambe and the plaintiffs are
their legal heirs and thus, the defendant No. 1 is liable to be ejected
from the suit premises. My Ld. Predecessor has pleased to frame the
issues below Exh.13. The burden of issue no.1 is on the plaintiffs who
required to prove that, the defendant No. 1 is a gratuitous licensee in
respect of the suit premises and burden of issue No. 2 is also on them to
prove Licensor and Licensee relationship between the plaintiffs and
defendant No. 1. Issue No. 4 is relating to law of limitation. Considering
the provisions of Presidency Small Causes Courts Act, 1882 and after
perusing all averments made in the plaint and the documents filed by
the plaintiffs in support of their claim, I do not found substance in the
contentions of defendant Nos. 1 and 4 that, the plaint is liable to be
rejected under Order VII Rule 11 of the CPC. If the plaint read as a
whole, there are sufficient facts disclosed in the plaint to show that the
plaintiffs have some facts in support to raise the question claiming the
reliefs. Therefore, in such circumstances, and after going through all
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averments made in the plaint, only Small Cause Court, Mumbai, does
have jurisdiction to try the present suit. Therefore, I do not found any
force in the submissions of defendants that, the plaint is liable to be
rejected. The plaintiffs have filed the present suit for declaration of
tenancy under various grounds under the above provisions of
Maharashtra Rent Control Act and therefore, the plaint cannot be
rejected under Order VII Rule 11of the Code. The present application is
devoid of merits and therefore, application is liable to be dismissed.
Therefore, in view of above all discussion, I answer Point No. 1 in the
negative and in order to answer Point No. 2, I proceed to pass the
following order :
: O R D E R :
1. Application vide Exh. 30 stands rejected.
2. No order as to costs.
(Dictated and pronounced in Open Court.)
Sd/-
Bandra -Mumbai. ( R. R. Kale )
Date :28.11.2023. Judge, C. R. No.35.
Order dictated on computer : 28.11.2023
Order checked & signed on :28.11.2023.
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