Dr. Ashok vs Behind Rajvilas Talkies
2013 Latest Caselaw 143 Bom

    1311(j)wp3665.13                                             1
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH, NAGPUR




                                                                                    
                                                            
                      Writ Petition No.3665/2013

                    Dr. Ashok S/o Jaikishan Agrawal,




                                                           
                    Aged about 60 years, Occu. Doctor,
                    C/o Arawal Hospital, Ganjakhet Chowk,
                    Gandhibag, Nagpur.           ....     Petitioner.




                                                
                            Versus

                       Vinkar Bhavan,
                                    
                       Plot No.14 & 15, Gandhibag, Nagpur,
                       through - Dinanath Umaji Pathrabe                                          ..
                                   
                       Behind Rajvilas Talkies,
                       Near Adv. Katekar's House,
                       Mahal, Nagpur -2.               Respondent
                                                ...

Mr. M.G. Bhangde, Senior Advocate assisted by Mr. G.R. Agrawal, Advocate for petitioner.

Mr. A. Shelat, Advocate for the respondent.

...

                              CORAM :   Z.A. Haq, J





                              DATE :    13th November, 2013.



                          ORAL JUDGMENT : (Per Z.A. Haq, J.) :





                     1]             Heard Mr. Bhangde, learned Senior Advocate

assisted by Mr. Agrawal, Advocate for the petitioner and

Mr. Shelat, Advocate for the respondent.

2] Rule. Rule is made returnable forthwith.

3] The challenge is to the order passed by the Trial

Court on 17.06.2013 rejecting the preliminary objection

filed by the petitioner-defendant to the maintainability of

the suit at the behest of the respondent on the ground

that the respondent is neither natural person nor juridical

person and to the order passed by the District Court on

2nd of May 2013 upholding the order passed by the trial

Court. The petitioner has also challenged the order

passed by the trial Court on 17th June, 2013 rejecting the

application filed by the petitioner for dismissal of the

proceedings for non-joinder of necessary parties.

The respondent-landlord has filed application

for fixation of standard rent against the petitioner. The

relationship of the landlord and tenant is on the basis of

the written agreement, which is at page no.10 of the

petition.

4] The submission of Mr. Bhangde, learned Senior

Advocate is that the respondent "Vinkar Bhavan" is

neither juridical person nor natural person to maintain

the suit. Mr. Bhangde, learned Senior Advocate has

submitted that the preliminary objection filed by the

petitioner be treated as under Order VII Rule 11 (a) of the

Code of Civil Procedure and as the respondent (Vinkar

Bhavan) is neither natural person nor juridical person, no

cause of action arises in its favour and it cannot maintain

the civil suit and, therefore, the Trial Court was an under

an obligation to reject the plaint. The submission on

behalf of the petitioner is that the Trial Judge has

committed an error in not rejecting the plaint as per the

mandate of Order VII Rule 11 (a) of the Code of Civil

Procedure and has erroneously postponed the decision on

the issue. Mr. Bhangde, learned Senior Advocate for the

petitioner has submitted that the Appellate Court has also

committed same mistake by dismissing the appeal.

Mr. Bhangde, learned Senior Advocate, has

submitted that "cause of action" means complete cause

of action in favour of the plaintiff and for that he relies on

the judgment reported in (2004) 3 SCC 277 (Kunjan nair

Sivaraman Nair Vs. Narayanan Nair and others). He relies

on paragraph 16 of the judgment and submission is made

that the plaintiff has to incorporate the basic averments

in the plaint to show the infraction of the right and the

infraction coupled with the right itself.

Mr. Bhangde learned Senior Advocate has relied

on the judgment reported in AIR 1954 NAGPUR 29 (The

G.I.P. Railway Senor Institute and another VS. Mohit

Kumar Barat) in which it is laid down that an unregistered

or non-proprietary club is not a juridical person and as

such cannot sue or be sued. Reliance is also placed by

the learned Senior Advocate on the judgment reported in

2002 (6) ALT 268 (Hyderabad Cricket Association,

Secunderabad and others Vs. Cambridge Cricket Club and

others) to contend that the suit is not maintainable at

the behest of the associations of individuals without any

existence in the eye of law.

Mr. Bhangde, learned Senior Advocate has also

relied on the judgment reported in (1999) 6 SCC 632

(T.K. Lathika Vs. Seth Karsandas Jamnadas) in support of

his submission that the Court cannot enter into merits of

the case without deciding preliminary objection. This

judgment arises out of the proceedings under Section 11

(3) of the Kerala Buildings (Lease and Rent Control) Act,

1965 which specifically provides the ban on the right of

the landlord to initiate proceedings.

5] In my view, judgment given in the case of

G.I.P. Railway Senior Institute and another VS. Mohit

Kumar Barat (supra) is not relevant at this stage of the

matter as in view of the written agreement between the

parties showing description of the respondent as

landlord, the matter has to be adjudicated on merits. As

far as the judgments in the case of Hyderbad Cricket

Association vs. Cambridge Cricket Club and others, and

Sopan Sukhdeo Sable and others Vs. Assistant Charity

Commissioner and others (supra) are concerned they

deal with the cases where the plaint did not disclose

cause of action. In the present case, situation is different

as discussed earlier.

6] Mr. Bhangde, learned Senior Advocate relying

on the judgment in the cases of Sopan Sukhdeo Sable

and others Vs. Assistant Charity Commissioner and others

(supra) has submitted that there is distinction between

the "material facts" and "particulars" and if the material

facts necessary to constitute the cause of action are not

complete, the plaint is bad in law and has to be rejected

under Order VII Rule 11 (a) of the Code of the Civil

Procedure. In my view, the submission as made cannot

be accepted at this stage. The plaint cannot be rejected

under Order VII Rule 11 (a) of the Code of Civil Procedure,

specifically in view of the fact that the agreement, which

is the foundation of the relationship of landlord and

tenant between the petitioner and the respondent

describes the respondent as "Vinkar Bhavan"

7] The preliminary objection, as filed by the

petitioner does not state the provision under which it is

filed. It is settled that non-mentioning of the provision in

the application or preliminary objection cannot be a

ground to reject the application, if the power to entertain

and decide the application exists. In this background, it

has to be examined as to whether the provisions of Order

VII Rule 11 (a) of the Code of Civil Procedure can be

invoked in the present case.

8] igOrder VII Rule 11 (a) of the Code of Civil

Procedure lays that the Court shall reject the plaint where

it does not disclose cause of action. It is not the case of

the petitioner that the plaint does not disclose cause of

action. The case of the petitioner is that the respondent-

landlord is not a natural or juridical person and, therefore,

no cause of action accrues in favour of the landlord-

Respondent. Order VII Rule 11 (a) of the Code of Civil

Procedure casts an obligation on the Trial Court to reject

the plaint if the plaint does not disclose the cause of

action. It does not require the Court to reject the plaint if

the plaintiff fails to substantiate that cause of action has

arisen in his favour.

9] It is settled law that while exercising

jurisdiction under Order VII Rule 11(a) of the Code of Civil

Procedure, the Court has to look at the plain averments in

the plaint and the submissions of the defendant in the

written statement or in the application under Order VII

Rule 11 (a) of the Code of Civil Procedure need not be

looked into. On examining the averments made in the

plaint, the trial Court has to decide whether the plaint has

to be rejected under Order VII Rule 11 (a) of the Code of

Civil Procedure or Civil Suit has to be decided on merits.

In the judgment reported in 1996 (8) SCC 377 (State of

Orissa Vs. Klockner and Company and others) the Hon'ble

Supreme Court has laid down that while exercising

jurisdiction under Order VII Rule 11 (a) of the Code of

Civil Procedure, the trial Court has to see whether plaint

discloses the cause of action or not. The Trial Court is

not required to examine whether the plaintiff has cause

of action to file the suit or not.

In view of this, the submission as made on

behalf of the petitioner that the plaint does not disclose

cause of action in favour of the plaintiff and, therefore, it

has to be rejected, is unacceptable.

10] The petitioner has filed application (Ex.27)

before the trial Court praying that the proceedings be

rejected/dismissed for non-joinder of the 60 persons, who

according to the petitioner, are the owners of the

tenanted premises and are necessary parties to the

proceedings. As observed earlier, there is an agreement

of lease between the parties, which is in writing and as

per the agreement "Vinkar Bhavan" is the landlord.

Moreover, the learned trial Judge has rightly observed

that the Resolution is passed in favour of Shri Dinanath

Pathrabe authorising him to file Civil Suit, to give

evidence, to produce the documents and to file affidavit

of evidence. Furthermore, the learned trial Judge has

rightly considered the fact that the petitioner has filed

application (Ex.27) after filing his evidence on affidavit on

1st June 2012 and after completing his examination-in-

chief on 31st June, 2012. In my view, the order passed by

the learned trial Judge on the application (Ex.27) is just

and proper and in consonance with the facts on the

record.

11] I find no infirmity or illegality in the impugned

orders passed by the learned trial Judge and they require

no interference in the extraordinary jurisdiction of this

Court under Article 227 of the Constitution of India.

12] Therefore, Writ Petition is dismissed. In the

circumstances, parties to bear their own costs.

JUDGE Ambulkar