JUDGMENT :

Introduction:

It is a tale of two sisters. Plaintiff Vishala Bokapatna Laxman is the younger sister of Vasanthi Shridhar Bangera. Vishala sued her elder sister and brother-in-law for eviction. The Suit was decreed. Vasanthi, the elder sister, and her husband appealed but without success. In the meanwhile, her husband died. So, along with her children, Vasanthi filed this Civil Revision Application.

Facts in Brief:

2. I may touch upon the facts briefly as are relevant for us to decide this Civil Revision Application—under Section 115 of Code of Civil Procedure, 1908 (CPC). As Vishala was employed with the State Trading Corporation, she had an opportunity of buying a house at a concessional rate. She did buy the house, and it is the suit subject. Who contributed the sale consideration has been a bone of contention, though. What is not disputed, however, is that both the sisters were initially living together in that house.

3. At any rate, initially, in June 1986, Vishala issued a quit notice to Vasanthi and her brother-in-law. Later, she filed Original Suit No.4842 of 1994 before this Court. But this Court held the jurisdiction lay with the Small Cause Court. It accordingly transferred the suit to the Small Cause Court, Bombay. The matter transferred, it was numbered as L.E.& C Suit No.96/125 of 2012.

During the trial, Vishala got herself examined as PW1, besides examining one more witness. On the other hand, Vasanthi and her husband, as the defendants 1 and 2, examined five witnesses, Vasanthi being the DW1. Vishala claimed exclusive ownership and wanted her sister and brother-in-law to vacate. On the other hand, Vasanthi maintained that her family contributed the sale consideration; so, Vishala is only a name lender—an ostensible owner. Eventually, in October 2015, the trial Court decreed the Suit.

4. Vasanthi and her husband filed an intra-court appeal, P.S.C.C. Appeal No.23 of 2015, before the Appellate Bench of the Small Cause Court. Mumbai. But in August 2017, the Appellate Bench, too, dismissed the appeal. As her husband died in the meanwhile, Vasanthi with her two daughters has filed this Civil Revision Application.

Submissions:

Applicants:

5. In the above factual backdrop, Dr. Abhinav Chandrachud, instructed by Shri M.V. Kini and Shri Arsh Mishra, for the applicants, has first demarcated the bounds of his submissions. As it is a revision, he wants to confine himself to the question of law, besides the findings which are perverse, thus requiring this Court’s intervention, as he puts it, even under Section 115 of CPC. With this prefatory submission, Dr. Chandrachud has submitted that the judgments of the Courts below suffer from at least two fatal flaws.

6. To elaborate, Dr. Chandrachud has submitted that Vishala, first, filed a suit before this Court, alleging that the defendants are trespassers. This Court refused to entertain the suit; instead, it required Vishala to pursue her case before the Small Cause Court, Bombay. Despite that, Vishala did not amend the pleadings to bring the suit in tune with the statutory requirements for the Small Cause Court to have jurisdiction. On the contrary, she has, as an afterthought, added a couple of sentences, just above the prayer portion—that the defendants are gratuitous licensees— and proceeded with the suit before the Small Causes Court.

7. According to Dr. Chandrachud, Vishala’s describing her sister and brother-in-law as gratuitous licensees is not only inconsistent, but also contradictory to the rest of her pleadings. At any rate, he contends Vishala has not, during the trial, elected any particular plea as a plank for eviction. Dr. Chandrachud maintains that because the pleadings also describe the defendants as trespassers, the Small Cause Court lacks jurisdiction to entertain a suit.

8. Dr. Chandrachud has also contended that only the Civil Court could rule on a trespasser’s eviction. So if a court inherently lacks jurisdiction, the decree it may pass will become a nullity.