Maintainability Of Any Suit Depends On The Suit Pleadings Not On The Rival Party's Defence: Bombay HC [Read Judgment]

Justice Dama Seshadri Naidu was hearing the revision application filed by Shamrao, Lakshman and Swapnil Kulkarni challenging the judgment passed by the 7th Additional Judge, Small Causes Court, Pune on August 4, 2015. In the said judgement, trial court rejected the defendant's applications under Section 9A and Order 7, Rule 11 of CPC.

Case Background

In September 2014, the original civil suit was filed by Vijay Rahatkar against the applicants (original defendants) seeking communication regarding fair rent for the property in his occupation; in the alternative, he wanted the Trial Court to decide the issue.

According to the plaintiff Vijay, the suit property measuring 991.47 sq. mts. is located in Bhamarudra, Shivaji Nagar, within Pune Municipal Corporation. 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.

In March 1991, the heirs of Vasudeo Mengale, who purchased the leasehold rights in 1947, sold the rights to Jasraj Rathnakar, Vijay'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." The sublessees are Ramesh Devarchand Mutha and Ravindra Singhvi, who is the fourth defendant in the suit.

Then dispute arose amongst the sublessees which led to two separate writ petitions being filed which ultimately 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 and defendant No. 5.

Following this, the defendants Shamrao and Laxman 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 stating that he was ready to execute a fresh Lease Deed on the same terms and conditions as the original Lease Deed contained. The 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. But the defendants sought the plaintiff's eviction. Thus, the plaintiff filed present civil suit.

Thereafter, defendants applied under Order 7 Rule 11 of C.P.C. for the rejection of the plaint on the alleged grounds that the plaintiff has not paid the requisite court fee. They 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 and applied under Section 9A of C.P.C. for the non-suiting the plaintiff.

On August 4, 2015, trial court rejected the defendants' application and on the same day, it also rejected the defendants' application under Order 7, Rule 11 of C.P.C.

Judgment

Advocate Ashok Tajane appeared on behalf of the applicants (defendants) and Advocate JS Kapre for respondents (original plaintiffs).

After examining submissions from both parties, Court accepted the submission made by respondent's counsel and noted-

"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 landlord tenant 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.

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."

Thus, Court refused to interfere with trial court's order and said-

"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."

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