National Bank For Agricultural & ... vs Ms. Ishwari Gobindram Samtani & 22 ...
2014 Latest Caselaw 148 Bom

                                            1        CHS.244/2011-S.2604/2000(901)

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                         
                   CHAMBER SUMMONS NO. 244 OF  2011
                                  IN
                        SUIT NO. 2604 OF 2000




                                                        
    The National Bank for Agricultural
    and Rural Development                               ...Plaintiffs
         Vs.
    Ishwari Gobindram Samtani & Ors.                    ...Defendants




                                            
    Mr. S.P.Bharti, Advocate for Plaintiffs
                             
    Ms. Sneha Vani i/b. Law Charter, Advocate 
    for Defendant Nos. 1(a) to 1(f)
    Mr. Mayur Khandeparkar a/w. Mr. Mitesh Naik 
                            
    i/b. Dhru & Co., Advocates for Defendant No.11
    Mr. Malcolm Siganporia i/b. M/s. Hariani & Co., Advocate 
    for Defendant No.14
    Mr. R.K. Shety a/w. Mr. K.B. Adyanthaya, Advocates 
         


    for defendant No.17
      



                                       CORAM : MRS. ROSHAN DALVI, J.

DATED : 19TH DECEMBER, 2014

ORAL ORDER:

1. This chamber summons is taken out by the plaintiff against defendant No.11 to call upon defendant No.11 to

disclose necessary particulars with regard to one Sushileena Trust stated to be the owner of the premises in the occupation of defendant No.11.

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2. This application is taken out under the provisions of Order

6 Rule 4 of the CPC, which runs thus:

"ORDER VI Rule 4. Particulars to be given where necessary. - In all cases in which the party pleading relies on any

misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars

(with dates and items if necessary) shall be stated in the pleading."

Hence under the aforesaid rule in all the cases in which

particulars may be necessary with regard to dates and items etc., they are required to be stated in the pleading. A pleading is a concise statement of facts. The statement of facts must be

exhaustive. Submissions, evidence and law are not to be

included in the statement of facts. However all the necessary particulars ("particulars may be necessary") are required to be

stated. The plaintiff has applied for disclosure of necessary particulars "in regard to Sushileena Trust".

3. The pleadings in this regard will be material to see.

Paragraph 2 of the plaint states that defendant Nos. 10 to 15 were the owners of individual portions in different floors of the suit building. Hence defendant No.11 is stated to be the owner of the portion of the building in its occupation.

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    4.        The   occupation   of  defendant   No.11  is   not   denied.     The 




                                                                                    

status of defendant No.11 is denied as owner. Defendant No.11 claims to be a tenant. It claims to be a tenant of the above

Sushileena Trust. In paragraph 3 of the written statement defendant No.11 has contended that the owner of the premises

in its occupation is a trust called Sushileena Trust and the defendant No.11 is merely a tenant of the said trust. It has further stated that as such tenant defendant No.11 happens to

occupy the office premises in the suit building.

5. In paragraph 7 of the written statement defendant No.11

has denied that it was not the owner, but was a mere tenant.

6. It is trite that a tenancy is created under a written

document. There is no oral tenancy. A tenancy, therefore, must

be shown by documentary evidence. It cannot be proved merely by oral evidence. A rent receipt of a tenant in occupation of one

tenement in a whole building would be the document to evidence such a claim. No rent receipt is referred to, relied upon or annexed to the written statement. Nothing is shown to Court even upon the query of the Court.

7. It is an admitted fact that the suit building collapsed on 16th September, 1997. No document prior to 16 th September, 1997 is produced on the ground that the building collapsed. No

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document after 16th September, 1997 is produced on the ground that the building collapsed. The claim of tenancy, therefore,

rests at that. Such oral claim / contention of defendant No.11 would have to be considered in the trial. The oral claim of

tenancy would have to be accepted or rejected merely upon such a statement.

8. Until that is done defendant No.11 would continue to be arrayed as a defendant in the suit. Defendant No.11 has

claimed in para 1 of the written statement that the suit is not

maintainable against defendant No.11 and should be dismissed with costs. It has claimed in paragraph 2 of the written

statement that the plaint disclosed no cause of action against defendant No.11 and should be dismissed with costs. In paragraph 3 of the written statement defendant No.11 has

claimed that it has been wrongfully and improperly joined as a

party defendant in its capacity as the owner which is incorrect and wrong. In paragraph 4 of the written statement it has

contended that the suit against it is misplaced as defendant No.11 is neither a proper nor a necessary party for the determination of the suit and should be dropped as a party defendant.

9. The plaintiff's claim that the defendant No.11 was occupying a specific tenement in the building has been accepted and admitted. The plaintiff's claim that it is an owner has been

5 CHS.244/2011-S.2604/2000(901)

denied. There is a further claim by the defendant No.11 that it is not the owner, but a tenant. It has specified that it was in

occupation of one specified tenement in the suit building as such tenant. That is the specific plea of the defendant No.11.

Defendant No.11 has not merely denied the plaintiff's claim of it being an owner. Defendant No.11 has not denied the plaintiff's

claim of it being in occupation. If defendant No.11 is not a owner, but in occupation it would be in occupation as a tenant, as a licensee, as a gratuitous licensee or as a trespasser. The

specific claim of defendant No.11 is that it is a tenant. The

further specific claim is that it is a tenant of a trust called Sushileena Trust. That specific claim, therefore, has to be

proved by the defendant No.11. As aforesaid it can be proved by a mere production of the documentary evidence under which it became a tenant. That would indeed be the necessary

particulars of its pleading and such necessary particulars would

be required to be given.

10. In the case of Shripad Amrit Dange Vs. Sir Harsiddhbhai V. Divatia & Ors. AIR (35) 1948 Bombay 20 the defendant raised the plea that the plaintiff's suit was misconceived without any particulars. The Supreme Court held that particulars of how

the suit was misconceived was required to be given and without which such a plea could not be accepted. Such is the case of the defendant No.11 also.

6 CHS.244/2011-S.2604/2000(901)

11. The plaintiff's application for such necessary particulars is,

therefore, not entirely out of place.

12. However the defendant No.11 would claim that further and better particulars of the defendant's statement of fact in its

pleading is not required to be given because such particulars have been omitted in the amended CPC of 1999 under Order 6 Rule 5 of the CPC.

13.

Counsel on behalf of the plaintiff rightly argued that the omitted particulars would be "further and better" particulars

and not "necessary" particulars. He would claim that the requirement of applying for and claiming further and better particulars of a party's pleading was omitted to cut delays in

litigation so that whatever particulars would be required could

be asked for in the cross examination of such party in the trial and the trial may proceed without delay. Indeed that is correct.

It would, therefore, have to be seen whether the disclosure of "the necessary particulars in relation to Sushileena Trust, the owner of the 4th floor premises ....." as set out in prayer (a) of the notice of motion would be such particulars as can be

claimed by the plaintiff and ordered by the Court to be given pending the trial.

14. It would be seen that defendant No.11 was indeed in

7 CHS.244/2011-S.2604/2000(901)

occupation. Defendant No.11 has denied that it was in occupation as the owner. Defendant No.11 must show that it

was in occupation in the capacity claimed by it viz., as a tenant and more so as a tenant of one Sushileena Trust and no other.

Without asking for any further particulars defendant No.11 would be bound and enjoined to provide those particulars if the

claim made by defendant No.11 of tenancy coupled with the claim of denial of ownership has to be accepted by the Court. If those particulars are not given that claim may not be accepted

and the simplicitor denial would be considered by the Court.

The plaintiff's averment of the ownership of defendant No.11 would be accordingly considered by the Court. Consequently

there may be no further particulars necessary to be given by defendant No.11 to the plaintiff unless defendant No.11 would itself deem it fit to provide the evidence to substantiate its

defence of tenancy. Until, of course, defendant No.11 would do

so defendant No.11 would not be deleted from the record and the suit would stand against defendant No.11 notwithstanding

the averments in paragraphs 1, 2 3 and 4 of the written statement of defendant No.11.

15. Besides, as contended by Counsel on behalf of defendant

No.11, the plaintiff, who would initially require to prove the averments made by the plaintiff, would be itself in a position to obtain particulars of the Sushileena Trust from the office of the Sub Registrar of Assurances or otherwise as deemed fit by the

8 CHS.244/2011-S.2604/2000(901)

plaintiff. In its absence also the plaintiff may prove its claim that defendant Nos. 10 to 15 were the owners of the respective

tenements in their occupation in the suit building.

16. This would require, inter alia, two issues to be framed in the suit; one relating to the ownership of defendant Nos. 10 to

15 and the other relating to the tenancy of defendant No.11.

17. The plaintiff would require to lead evidence in respect of

its claim of ownership of defendant No.11 (which is denied).

After the plaintiff's evidence is led on that issue, defendant No.11 would require to lead evidence in respect of its claim of

tenancy, it being a tenant of Sushileena Trust. Thereafter the plaintiff may lead evidence in rebuttal (ie., reply on the evidence produced by defendant No.11) in respect of the issue of tenancy.

18. Under these circumstances at present the only statement of defendant No.11 that it was the tenant of the Sushileena

Trust may remain. The trial shall proceed in accordance with law. No further particulars would be called for by the Court. It would be for the parties to prove their respective claims upon such evidence that they may themselves produce.

19. With these observations there shall be no order in the Chamber Summons. No orders as to costs.

(ROSHAN DALVI, J.)