Bombay High Court
Sheetal Bhupal Khanjire vs Bapuso Baburao Chougule And Ors on 15 January, 2021
Bench: C.V. Bhadang
1-cra-569-2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.569 OF 2019
Sheetal Bhupal Khanjire ..Applicant
V/s.
Bapuso Baburao Chougule & Ors. ..Respondents
----
Mr.Shriniwas Patwardhan a/w Mr.Bhooshan Mandlik and
Ms.Rajeshwari Patil for the Applicant.
Mr.Surel S. Shah a/w Mr.Sandeep Koregave for Respondent Nos.1 to
Nilam Digitally signed by
Nilam Kamble 3.
Kamble Date: 2021.01.20
11:05:40 +0530 ----
CORAM : C.V. BHADANG, J.
DATE : 15th JANUARY 2021
P.C.
1. The challenge in this Civil Revision Application is to the
judgment and order dated 15th April 2019, passed by the learned
District Judge at Sangli in Regular Civil Appeal No.7 of 2017. By the
impugned judgment, the learned District Judge has allowed the
appeal filed by the respondent Nos.1 to 3 (Original Plaintiffs) and
has set aside the order dated 2 nd December 2016 below application
Exhibit-46 passed by the learned 2nd Civil Judge Junior Division at
Sangli in Regular Civil Suit No.113 of 2007. The net result is that
application Exhibit-46 filed by the applicant (defendant No.1) for
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rejection of the plaint under Order VII Rule 11 of the Civil Procedure
Code ('CPC' for short) stands dismissed.
2. The brief facts necessary for the disposal of the petition
may be stated thus :-
R.C.S. No.113 of 2007 has been filed by the respondent
Nos.1 to 3 against the applicant (defendant No.1), respondent No.4
(defendant No.2) and respondent No.5 (defendant No.3). That suit
is filed for declaration and injunction etc. The subject matter of the
suit comprises of land admeasuring 62.73 sq. meters from out of
City Survey No.85 and 76.67 sq.meters from out of the City Survey
No.85/1, total 139.40 sq.meters with a structure standing thereon
situated within the jurisdiction of Sangli, Miraj and Kupwad
Municipal Corporation, which is more specifically described in
paragraph 1 of the plaint.
3. The case made out in the plaint is that the suit property
was originally belonging to late Mallappa Ghevare. Mallappa
Ghevare had leased out the property to late Baburao Chougule for
commercial purpose and late Baburao Chougule was conducting the
business of Oil and Oil Cakes as an Commission Agent in the suit
property under the name and style as M/s.Baburao Yashwant
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Chougule. Late Baburao Chougule was paying rent to the original
landlord. Baburao Chougule expired on 08 th December 1978.
Respondent Nos.1 and 2 are the sons while the respondent No.3 is
the widow of Baburao. The respondent No.5 (defendant No.3) is
the widow of late Rajkumar son of Baburao Chogule. Mallappa
Ghevare expired somewhere in the year 1974-75 after which
respondent No.4 (defendant No.2) Chandrakant Ghevare became
the landlord.
4. It is the material case that after the death of Baburao
Chougule the respondent No.1 was looking after the business of
M/s.Baburao Yashwant Chogule. At the relevant time the
respondent Sanjay and Late Rajkumar were taking education. For
some time the respondent Nos.1 and 3 conducted the business of
Laxmi Traders with the help of some others in the suit premises. In
the year 1983 the respondent No.2 conducted the business of
Furniture Show Room in the suit premises.
5. The applicant purchased the suit property from the
respondent No.6 under registered sale deed dated 26 th November
2005. For the limited purpose of deciding the present Civil Revision
Application, it is not necessary to set out the pleadings in details.
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Suffice it to mention that according to the plaintiffs somewhere at
the end of November 2006 and the first week of December 2006 the
applicants had demolished the structure standing on the said plot
and have encroached on the same. It is the specific case made out
that except southern side wall entire structure was demolished. It is
in these circumstances, that the suit came to be filed, seeking a
declaration that the plaintiffs are the contractual tenants of the suit
property having protection under the Maharashtra Rent Control Act
('Act' for short) and for the purpose of mandatory injunction
directing the applicant and respondent no.4 to reconstruct the suit
premises and restraining them or anybody on their behalf from
interfering with the possession of the plaintiffs over the suit
property.
6. It appears that previously the respondent No.5
(defendant No.3) had filed RCS No.400 of 2006 against the
applicant, simplicitor for injunction. In that suit it was contended
that the applicant was trying to interfere with the possession of the
suit premises and there were attempts to take forcible possession. It
was in these circumstances, that the suit simplicitor for injunction
had been filed by the respondent No.5 on 30 th November 2006. The
record discloses that subsequently the respondent No.5 sought
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withdrawal of the said suit under Order XXIII Rule 1(3) of the C.P.C.,
with leave to file a fresh suit, which application was rejected by the
learned trial Court by order dated 23rd February 2007. The matter
was not carried any further. It transpires during the course of the
hearing that subsequently the said suit has been dismissed in
default.
7. Be that as it may, the applicant resisted R.C.S. No.113 of
2007 (subsequent suit) inter alia on the ground that the same is hit
by the provisions of Order II Rule 2 of C.P.C. It is contended that the
relief of declaration was very much available to the parties when
the previous suit was filed by the respondent No.5. It is submitted
that once the respondent No.5 has chosen not to claim the
declaration, the subsequent suit is barred by the provisions of Order
II Rule 2 of C.P.C.
8. The record further discloses that issues are framed by
the Trial Court in the year 2009. However a copy of the issues
produced by the learned counsel for the parties, during the course of
the hearing, shows that a specific issue based on defence under
Order II Rule 2 of C.P.C. has not been framed by the learned Trial
Court.
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9. When the suit was at the stage of recording evidence,
the applicant filed application Exh-46 purportedly under Order VII
Rule 11 of C.P.C. for rejection of the plaint on the ground that the
same is barred under Order II Rule 2 of the C.P.C.
10. The application was opposed by the respondent Nos.1
to 3. The learned Trial Court allowed the application by Order
dated 2nd December 2016. Feeling aggrieved, the respondent Nos.1
to 3 challenged the same before the learned District Judge in RCA
No.7 of 2017. The learned District Judge by the impugned
judgment has allowed the appeal, thereby refusing to reject the
plaint, which brings the applicant to this Court.
11. I have heard Mr.Patwardhan, the learned counsel for the
applicant and Mr.Shah, the learned counsel for contesting
respondent Nos.1 to 3. Perused record.
12. The learned counsel for the applicant submitted that the
application under Order VII Rule 11 has to be decided on the basis
of the averments made in the plaint. It is submitted that the
previous suit was filed by the respondent No.5 when the premises
were already demolished and therefore the respondent No.5 was
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required to file a comprehensive suit for declaration and injunction.
The respondent No.5 having omitted to do so, the subsequent suit is
barred under Order II Rule 2 of the C.P.C. The learned counsel
referred to the averments in paragraph No.3 of the plaint in the
previous suit, in order to point out that the respondent No.5 had
contended that because all the heirs of late Baburao Chougule were
not available for signing, they are not made as parties and they are
not necessary parties, inasmuch as, no relief is claimed against them.
In the submission of the learned counsel the previous suit was filed
for and on behalf of the legal heirs of late Baburao Chougle and
therefore, notwithstanding the fact that the respondent Nos.1 to 3
(plaintiffs in the subsequent suit) were not the plaintiffs, in the
previous suit, the subsequent suit would be barred.
13. On behalf of the applicant reliance is placed on the
decision of the Supreme Court in the case of Surayya Begam (MST)
V/s. Mohd. Usman & Ors.1 and Pandit Ishwardas V/s. State of
Madhya Pradesh & Ors.2 It is submitted that the learned District
Judge was in error in interfering with the order passed by the
learned Trial Court.
1 (1991) 3 SCC 114
2 (1979) 4 SCC 163
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14. Mr.Shah, the learned counsel for the respondent Nos.1
to 3 has supported the impugned order. It is submitted that the
previous suit was only between the respondent No.5 and the
applicant. It is pointed out that admittedly the respondent Nos.1 to
3 were not parties in the previous suit and therefore they cannot be
bound by the act of the respondent No.5 in filing a suit for the relief
of injunction alone. It is submitted that even otherwise the cause of
action shown in the two suits is distinct and therefore bar under
Order II Rule 2 of C.P.C. would not apply. The learned counsel
submitted that, the plaint cannot be rejected as being barred by any
law. It is submitted that, in any event, the issue is one which
requires trial.
15. I have carefully considered the rival circumstances and
the submissions made. Admittedly, the previous suit was filed by the
respondent No.5 alone against the applicant which was simplictor
for injunction. The respondent Nos.1 to 3 were not parties to the
said suit as the respondent No.5 claimed in the previous suit that
the other heirs of Baburao Chougule, were not available for
signature. If that be so the respondent Nos.1 to 3 being the other
legal heirs, were not made parties, as defendants in the previous
suit. The cause of action shown in the previous suit is when there
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was an alleged attempt to take forcible possession of the suit
premises which is apparent from paragraph No.4 of the plaint in the
previous suit. The cause of action in the subsequent suit as found in
paragraph 11 is when the applicant issued a notice reply in May
2006 to the notice issued by the respondent No.2 (plaintiff No.2)
thereby denying the tenancy rights of the parties and when the
structure standing on the land was demolished at the end of the
November 2006 and the first week of December 2006.
16. Thus prima facie it can be seen that cause of action
shown is different. It is trite that while considering the prayer for
rejection of plaint, the Court has to confine itself to the averments
made in the plaint and cannot consider any defense, actual or
probable. In my considered view, once it is pointed out that a
specific defence based on Order II Rule 2 of the C.P.C. was raised in
the written statement, it was necessary for the Trial Court to have
framed an issue on the said point. It is necessary to note that there
is also a lapse on the part of the parties in not seeking modification
of the issues in order to include an issue based on Order II Rule 2 of
the C.P.C.
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17. Be that as it may, considering the overall circumstances,
I find that it would be appropriate to direct the learned Trial Court
to frame an issue in view of the defence based on Order II Rule 2 of
the C.P.C. and the said issue can be tried along with other issues.
18. Reliance placed on the decision in the case of Surayya
Begam and Pandit Ishwardas (Supra) to my mind is misplaced, as
both these cases, turned on their own facts. The case of Surayya
Begam involved an issue of res-judicata in the context of non-
joinder of parties. The case of Pandit Ishwardas involved an issue of
amendment of pleadings under Order VII Rule 11 of the C.P.C.
Perusal of the said judgment would show that in that case the
plaintiff in both the suits was the same, unlike in the present case,
where the respondent Nos.1 to 3 are admittedly not the plaintiffs, in
the previous suit.
19. In the result, the following order is passed:-
ORDER
(i) The Civil Revision Application is dismissed, with
no order as to costs.
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(ii) The Trial Court shall frame an issue about the
maintainability of the suit, in view of the bar under
Order II Rule 2 of C.P.C.
(iii) The said issue shall be decided along with other
issues at the trial of the suit, without being influenced
by the observations made in the order dated 15th April
2019, passed by the learned District Judge, and the
order dated 02nd December 2016 passed by the learned
trial Court or the observations made by this Court,
which are essentially for the limited purpose of deciding
the issue of rejection of plaint.
(iv) Rival contentions of the parties are left open.
C.V. BHADANG, J.
N.S. Kamble page 11 of 11
