Bombay High Court
Jayesh Dharamdas Jhaveri vs Smt.Nirmala Dharamdas Jhaveri on 22 February, 2023
Bench: Amit Borkar
34-fa-373-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.373 OF 2022
Jayesh Dharamdas Jhaveri ... Appellant
V/s.
Nirmala Dharamdas Jhaveri ... Respondent
WITH
INTERIM APPLICATION NO.2744 OF 2022
Jayesh Dharamdas Jhaveri ... Applicant
V/s.
Nirmala Dharamdas Jhaveri ... Respondent
Mr. Amit Sale a/w T. Shendge for the appellant.
Mr. Vimal Sanghavi for the respondent.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 22, 2023
P.C.:
1. The appeal arises out of dismissal of the suit in exercise of
power under Clause a of Order 7 Rule 11 of the Code of Civil
Procedure, 1908. The appellant is original plaintiff who filed suit
for injunction and restraining defendant from alienating the suit
property or parting with possession of the suit property.
Additionally, an injunction restraining defendant from allowing
any other person from using and occupying suit property was also
sought.
2. The learned Trial Court while dismissing notice of motion
34-fa-373-2022.doc
recorded a finding that the suit has been filed with intention is not
to obey the order of this Court.
3. I have perused averments in the plaint. According to the
plaintiff, by virtue of agreement dated 26 th April, 1963 suit
property was purchased by plaintiffs father. According to him,
plaintiffs sisters contributed sum of sole consideration. According
to the plaintiff, sisters Ms. Rashmi Sheth had relinquished her
rights over the suit property another sister also relinquished her
right. The appellant has, therefore, filed suit contending that in
view of release of rights by the sister of his father he is entitled to
the suit property exclusively.
4. The scope of clause a of Order 7 Rule 11 is well settled. The
Court while considering under Order 7 Rule 11 is required to take
into consideration the averments in the plaint only. "Cause of
Action" means every fact which would be necessary for the
plaintiff to prove, if in order to support his right to judgment. It
consists of bundle of material facts, which are necessary for the
plaintiff to prove in order to entitle him to the reliefs claimed in
the suit. While considering an application under Order 7 Rule 11
what is required to be decided is whether the plaint discloses real
cause of action or something purely illusory. What is required is
that a clear right must be made in the plaint.
5. In the facts of the case without going into the merits of case,
the averments in the plaint discloses that father of the plaintiff was
owner of the property and plaintiff is seeking ownership based on
his right of inheritance. Based on aforesaid pleading, it is clear that
34-fa-373-2022.doc
the plaintiff has pleaded a clear right that he is entitled to the
ownership in which capacity as 'Son'. Whether in law plaintiff is
entitled to claim needs to be decided after granting opportunity of
hearing or such right opportunity to lead evidence to the plaintiff.
At the stage of allowing considering under Order 7 Rule 11 merits
of the plaint cannot be considered. Therefore, in my opinion, the
suit could not have been dismissed under clause (a) of Order 7
Rule 11 of the Code of Civil Procedure, 1908.
6. For the aforesaid reasons, the First Appeal No.373 of 2022 is
allowed.
I) The impugned order dated 2nd March, 2022 passed in
S.C. suit No.2587 of 2021 below Exhibit 1 is quashed and set
aside.
II) The S.C. suit No.2587 of 2021 is restored on the file of
learned City Civil Court which shall be decided on merits
uninfluenced by the observations made above.
7. The First Appeal stands disposed of in the above terms. No
costs.
8. As the First Appeal disposed of the Interim Application does
not survive and is disposed of accordingly.
(AMIT BORKAR, J.)
