Law Web: Whether small cause court can reject plaint considering defence plea?

That said, as rightly contended by the respondents’ counsel, the

maintainability of any suit depends on the suit pleadings, not on the rival

party’s defence. If we strictly go by the plaint averments, we gather that the

dispute concerns tenancy and that the Plaintiff avers about the landlordtenant

relationship, too. Given the convoluted assignment and the apparent

lack of privity of contract between the parties, as pleaded by the defendants,

are matters of merit and are based on the evidence to be led. We cannot

prejudge them. Nor can we non-suit a plaintiff on the premise he has a very

weak case, or the case he has set up is unconvincing or uninspiring.

22. Even on the Court Fee, too, the Trial Court has given reasons why

it was not inclined to throw out the case at the threshold.

23. Therefore, under these circumstances, I see no reason how I can

interfere with the Trial Court finding by exercising powers under Section

115 of C.P.C., essentially, a power of revision that concerns jurisdictional

errors rather than the correctness of adjudication.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.38 OF 2016

CIVIL SUIT NO.354 OF 2014

Shri Shamrao Moreshwar Kulkarni Vs Shri. Vijay Jasraj Rahatekar

CORAM : DAMA SESHADRI NAIDU, J.

Dated : 18th DECEMBR, 2019

Heard finally at the admission stage by the parties’ consent.

2. In Civil Suit No.354 of 2014, the Applicants are the original

Defendants 1 to 3; the first Respondent is the original Plaintiff, and the

Respondents 2 and 3 are the original Defendants 4 and 5.

3. The Applicants-Defendants are challenging the Judgments and

Orders, dated 4.8.2015, passed by the 7th Additional Judge, Small Causes

Court, Pune. The Trial Court rejected the Defendants applications under

Section 9A and Order 7, Rule 11 of C.P.C.

Facts:

(a) The Scope of the Suit:

4. In September 2014, Vijay Jasraj Rahatkar filed Civil Suit No. 354

of 2014, against Shamrao Moreshwar Kulkarni and others. He wanted the

Defendants to communicate the fair rent for the property in his occupation;

in the alternative, he wanted the Trial Court to decide it. Vijay Jasraj also

wanted the 1st and 2nd Defendants to execute a fresh registered Lease

Deed of the suit property for a further 99 years in favour of him and the

fourth Defendant. Vijay Jasraj, finally, wanted the Trial Court to injunct the

Defendants against his forceful dispossession.

(b) The Property:

5. According to Vijay Jasraj, the suit property, then vacant, measuring

991.47 sq. mts., lies in Bhamarudra, Shivaji Nagar, in Pune Municipal

Corporation limits. The owners originally leased it for 99 years to Daji Hari

Lele. As the lease was for a long term, he constructed a house on one part of

the property and sold it in December 1926 to Vasudeo Eknath Mengale.

Again Vasudeo, in September 1947, leased out the ‘northern portion’ of

about 5062 sq. ft., to Umakant Bhaskar Joshi for 72 years. Umakant, then,

constructed a house in that portion. By 1935, not much vacant land

remained.

6. In March 1991, the heirs of Mengale, who purchased the leasehold

rights in 1947, sold their leasehold rights to Jasraj Rathnakar, the Plaintiff’s

father. It was through a registered deed. The property thus ‘sold’ measures

991.47 sq. mts., with a structure measuring 280 sq. mts. The rights

transferred include “ownership rights in the construction standing thereon

with a right to recover the rent from the subleases and tenants kept by

Mahadev Mengale.” Those sublessees are Ramesh Devarchand Mutha and

Ravindra Nainsukh Singhvi, who is the fourth Defendant in the suit.

7. There arose disputes amongst the sublessees; it has led to WP

Nos.2650 of 1986 and 2651 of 1986. And those writ petitions resulted in a

compromise: Ramesh Mutha and Ravindra Singhvi agreed to transfer all

their rights in the property acquired by them from Mengale family to Vijay

Jasraj and Defendant No. 5.

8. Ramesh Mutha transferred to Plaintiff Vijay Jasraj and the fifth

Defendant his rights up to 80.61%, through a registered Sale Deed, dated

14.3.1996, together with a right to acquire the remaining leasehold rights

from Ravindra Singhvi, the Defendant No. 4. Ramesh Mutha is said to

have transferred his rights with the fourth Defendant’s consent. Thus, the

Plaintiff and the 5th Respondent acquired leasehold rights, together with a

right to acquire the remaining leasehold rights from Mr. Ravindra Singhvi,

the fourth Defendant. So, K. Rahatekar, the fifth Defendant, filed Special

Civil Suit No. 987 of 1993, against the fourth Defendant for specific

performance of the above Agreement. It was, it seems, based on the

compromise arrived at in Writ Petition Nos.2650 of 1986 and 2651 of

1986.

9. The first and the Second Defendants started claiming rights over

the suit property based on the alleged Sale Deed to have been executed

between the legal heirs of Shirole family and Saraswatibai Moreshwar

Kulkarni. They alleged that they are the legal heirs of late Saraswatibai. So

the Plaintiff sent a notice to them in October 2013 that he was ready to

execute a fresh Lease Deed on the same terms and conditions as the original

Lease Deed contained. Those defendants, in January 2014, asserted that the

lease was to expire in March 2014. Once again, the Plaintiff informed the

first and the second defendants that he was ready to execute a fresh Lease

Deed. Then, the Plaintiff, in April 2014, called upon the first and the

second Defendants, reiterating his willingness to enter a fresh lease. But the

Defendants 1 to 3 filed Regular Civil Suit No. 742 of 2014 in the Civil

Court, Pune. They sought the Plaintiff’s eviction.

10. On the other hand, the Plaintiff filed Civil Suit No.354 of 2014

that the Defendants are entitled to only fair rent and that the Plaintiff is

ready and willing to pay the fair rent.

11. First, the Defendant Nos. 1 to 3 applied under Order 7 Rule 11 of

C.P.C. for the rejection of the plaint on the grounds that they allege that the

Plaintiff has not paid the requisite court fee. They have also maintained that

the suit is not maintainable before the Small Causes Court in terms of

Section 33 (1) (c) of the Maharashtra Rent Control Act, 1999. They have

also disputed the nature of the property. So they applied under Section 9A

of C.P.C. for the non-suiting the Plaintiff.

12. On 4th August 2015, the Trial Court rejected the defendants’

application under 9A of C.P.C. On the same day, it also rejected the

defendants’ application under Order 7, Rule 11 of C.P.C. So, aggrieved, the

defendants 1 to 3 have filed this Civil Revision Application, assailing both

the orders.

13. I have set out above the convoluted litigious facts as I have

gathered from the record and also from the counsel’s arguments. There may

be an error or two, but that will not affect what is on record. And the trial

Court may rely on the facts as the record reflects, rather than as this Court

has set them out. Here, in this Revision Application, the question is narrow:

Has the trial Court been justified in rejecting the Defendants’ applications

under Section 9A and Order 7, Rule 11 of CPC? So, let us answer that

question alone.

Submissions:

Petitioners:

14. The petitioners’ counsel argues that the Trial Court has not

followed the procedure. According to him, it ought to have framed a

particular issue and allowed the parties to lead evidence on the question of

maintainability. He has persistently contended that the dispute concerns a

piece of open land and that the parties have no landlord-tenant relationship,

both of which are sine qua non for the suit to be maintained.

15. The learned counsel has also stressed that the Plaintiff has filed

the suit for specific performance of a contract that has already ended; it has

nothing to do with any tenancy. And the suit is only a counterblast to the

one filed by the defendants. He has also elaborately addressed the Court on

the merits, too. In this context, the learned counsel has contended that the

property is huge, valued in crores. But no court fee commensurate to its

value has been paid.

16. The learned counsel has submitted that both the orders—one under

Section 9A and the other under Order8, Rule 11—are cryptic and devoid of any

reasoning.

Respondents:

17. On the other hand, the learned counsel for the Respondent has

reminded me about the cardinal principle of law: adjudication under either

Section 9A or under Order 7, Rule 11 depends on the plaint pleadings and

nothing else. Particularly, it does not depend on the defence. According to

him, the merits of the matter cannot be prejudged.

18. The learned counsel has argued to meet all the defendants’

assertions about the nature of the land, the relief sought, and the court fee,

too. To conclude, he has submitted that the impugned orders suffer from no

legal infirmity, and the revision application deserved to be dismissed.

19. Heard the learned counsel for the applicants and the learned

counsel for the respondents.

Reasoning:

20. As gathered from the impugned order, I understand that the

defendants’ objections flow from these contentions: (a) the Plaintiff has

sought the relief of specific performance, and it is beyond the jurisdictional

purview of the Small Cause Court; (b) the property has been undervalued;

apply; (d) nor is there any landlord-tenant relationship between the parties.

Here, I disregard all references to the merits of the matter, though they, too,

have been argued about extensively.

21. That said, as rightly contended by the respondents’ counsel, the