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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Nutan D. Sardessai, J.
Blaze Fernandes – Appellant
Versus
Dr. Joaquim Herlander Coelho Pereira – Respondent
Civil Revision Application No. 25 of 2018
Decided On : 12-10-2018
Rent Control Act – Section 56 – Goa Buildings (Lease, Rent and Eviction) Control Act, 1968 – Section 18 – Civil Procedure Code, 1908 – Order 7, Rule 11, Order 6, Rule 2, Order 15-A –Rejection of the plaint – Applicant seeks a writ to quash and set aside the order passed by the learned Civil Judge Junior Division pursuant to which the application moved by the applicant for rejection of the plaint under Order 7, Rule 11 of the Civil Procedure Code came to be dismissed – Applicant is the original defendant and the respondents are the plaintiffs before the Trial Court who would be referred to as the applicant and the respondents for brevitys sake hereinafter. – Held, Application was made by the applicant for deposit of the rent in receipt of the suit shop which came to be allowed pursuant to the order of the Trial Court – It is equally a matter of record that the application filed by the respondents under Order 15-A of the Civil Procedure Code for the deposit of mesne profits alleging illegal occupation by the applicant came to be dismissed by the Trial Court vide the order and both these orders attained finality in the absence of any challenge thereto at the instance of the respondents. – The applicant then moved the application for the rejection of the plaint under Order 7, Rule 11(d) of the Civil Procedure Code taking a specific plea that the suit as filed by the respondents was barred in view of Section 56 of the Rent Control Act. – Trial Judge however lost track of the fact that it was only the pleadings in the plaint which had to be looked into and on that basis to decide whether the plaint was liable for rejection or otherwise. However, the learned Trial Judge to the contrary cast the burden on the applicant holding that in case the applicant had produced any document establishing that he was the tenant of the suit premises, the suit would have been barred by law. – This is despite the fact that the applicant had clearly placed reliance in Gian Devi (supra), Sushilabai Dantye (supra) and other judgments on record clearly holding that commercial tenancies are heritable and that in view of the provisions contained in Section 56 of the Rent Act, the Civil Court had no jurisdiction to entertain the suit for eviction of the party. – Respondents had also not sought any relief of declaration unlike that in Dr. Fernando Mascarenhas (supra). – The said judgment is also distinguishable on facts inasmuch as in the facts of the present case, the respondents clearly pleaded that the late father of the applicant was the tenant of the suit shop and that on his demise, the tenancy in respect of the suit shop devolved on his widow i.e. the late mother of the applicant who paid rent regularly and despite falling back on the definition of tenant contained in Section 2(p) of the Act proceeded to hold that there was no merit in the application and dismissed the same. – The impugned order which is clearly indicative of the fact that the learned Trial Judge had failed to exercise the jurisdiction vested in it by law and otherwise acted in exercise of its jurisdiction illegally would call for an interference with the order under challenge. – Civil Revision Application Allowed
ORDER :
1. The applicant seeks a writ to quash and set aside the order passed by the learned Civil Judge Junior Division Panaji dated 08.03.2018 pursuant to which the application moved by the applicant for rejection of the plaint under Order 7, Rule 11 of the Civil Procedure Code came to be dismissed. The applicant is the original defendant and the respondents are the plaintiffs before the Trial Court who would be referred to as the applicant and the respondents for brevity's sake hereinafter.
2. The case of the respondents briefly was that the father and later his mother was a statutory tenant of the commercial premises of which the applicant continued in possession. The respondents had taken a plea that the applicant was in illegal possession and occupation of the suit shop and sought for a direction to deposit the mesne profits by their application under Order 15-A of the Civil Procedure Code. The applicant had filed an application under Section 18 of the Goa Buildings (Lease, Rent and Eviction) Control Act, 1968 for the deposit of rent as a tenant which was granted by the Trial Court while the application of the respondents under Section XV-A came to be dismissed. Both these orders were not challenged by the respondents and had attained finality. It was the case of the applicant that commercial tenancy was heritable and a mere blanket statement by the respondents that he was a trespasser could not supercede the settled law on that point. The learned Trial Court had erroneously dismissed the application moved by him under Order 7, Rule 11 of the Civil Procedure Code on the ground that only if the applicant had produced any documents to establish his claim of tenancy to the suit premises, the suit would have been barred by law. The learned Trial Court had erred in the exercise of its discretion and passed the order which was liable to be interfered with in revision.
3. Heard Shri F.E. Noronha, learned Counsel appearing for the applicant who adverted to the pleadings in the plaint and submitted that there was no singular dispute at the instance of the respondents that his father and subsequently his mother were the tenants of the suit premises though disputing the right of the applicant to have inherited the same on their demise. He next adverted to the impugned order and submitted that the learned Trial Court was totally in error to cast a duty on the applicant to produce documents to establish his plea when it was only the averments in the plaint which had to be examined for the purpose of considering the application under Order 7, Rule 11 of the Civil Procedure Code. He next adverted to Order 7, Rule 11(d) of the Civil Procedure Code which only required the Court to reject the plaint under Rule 11(d) where the suit appears from the statement in the plaint to be barred by any law. A reference was also made to Order 7, Rule 1 of the Civil Procedure Code which dealt with the particulars to be contained in the plaint and submitted that the expression "barred by law" contained under Order 7, Rule 11(d) of the Civil Procedure Code also included judicial pronouncement and in that context placed reliance in Bharvagi Construction vs. Kothakapu Muthyam Reddy, 2018 (1) All MR 459 (SC).
4. Shri F.E. Noronha, learned Advocate for the applicant placed reliance in Tulsidas Atmaram Shirodkar @ Narvekar vs. Chandrakant Bhikaro Naik, 2015 (2) Goa L.R. 603 (Bom), Satyawati Sharma (Dead) by LRs. vs. Union of India and Another, (2008) 5 SCC 287, Gantusa H. Baddi (Dead) by LRs. vs. Meerabai G. Pai and Others, 2000 AIR SCW 1564, Smt. Sushilabai Dantye and Others vs. Ganpat Kudtarkar, 1998 (2) Goa L.T. 266, Smt. Hirabai Gurudas and Others vs. Shri Joao Manuel Santa Rita Piedade Camara and Others, 2000 (1) Goa L.T. 378, Gian Devi Anand vs. Jeevan Kumar and Others, (1985) 2 SCC 683, Maharashtra State Electricity Board vs. M/s Madhu Sudandass and Brothers, AIR 1966 Bom 160, Kedar Lal Seal and Another vs. Hari Lal Seal, AIR (39) 1952 SC 47, Sansar Chand
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