Harcharansing Amarjitsing ... vs Vinaychandra K. Patel
2021 Latest Caselaw 14935 Guj

      C/SCA/6890/2018                                    ORDER DATED: 23/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 6890 of 2018
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                    HARCHARANSING AMARJITSING SAHANI
                                Versus
                         VINAYCHANDRA K. PATEL
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Appearance:
PARTH Y PATHAK(7528) for the Petitioner(s) No. 1
MR.JYOTINDRASINH J.VALA, LD.ADVOCATE FOR MR. ASHUTOSH S
DAVE(8865) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 23/09/2021

                                 ORAL ORDER

1. The petitioner, who is the original defendant before the

trial Court in Regular Civil Suit No. 4216 of 2015, has requested

to quash and set aside the order dated 18 th December, 2017

passed below Exh.7.

2. The short facts leading to the present case reads as under:-

2.1 Respondent-plaintiff has filed the suit against the present

petitioner-original defendant for recovery of the agreed rent and

to get vacant possession of the suit premises before the learned

Civil Court, Vadodara. As per the contentions made by

plaintiff in the suit, defendant was permissible user since 2006

and agreed rent was fixed as Rs. 3200/- in June, 2006.

Thereafter, in June, 2007, agreed rent was increased to Rs.3500/

C/SCA/6890/2018 ORDER DATED: 23/09/2021

afresh. In the year 2009-2010, agreed rent was again increased

to Rs.4500/- . Rent agreement was executed for the period of 11

months. That, other Municipal Taxes were also to be paid by the

defendant in addition to maintenance charges of the society. As

agreed rent was not paid regularly by the defendant, it was

requested by the plaintiff to pass a decree against the defendant

and to pay outstanding agreed rent of Rs. 2,97,000/- and get

vacant possession of the suit premises. The defendant appeared

before the Court below and filed his written statement.

Thereafter, vide application Exh. 7 under Order 7 Rule 11 of

Civil Procedure Code an application was submitted by the

defendant stating that the defendant was a tenant of the suit

premises and agreed rent of Rs.3500/- was already paid by him.

It was also agreed that from 2009-2010, rent was increased at

Rs.4500/- per month, which was also paid up to 22nd April,

2010. However, defendant was threatened by the plaintiff to

vacate the suit premises, and therefore, to protect the rights as

tenant, Rent Suit No. 457 of 2010 was filed by him before

learned Small Cause Court, Vadodara for permanent injunction

C/SCA/6890/2018 ORDER DATED: 23/09/2021

and declaration. As per the contention raised in the written

statement, defendant was paying the agreed rent regularly. Only

rent of 3-4 months, as arrears, for which he was ready and

willing to pay to the plaintiff, however, it was not accepted by

the plaintiff. It was further contended that under the Gujarat

Rent Act, the suit was not maintainable as before filing of the

suit under the Rent Act, no mandatory notice as required was

issued by the plaintiff and the suit was filed for vacating the suit

premises. That, defendant was staying as tenant in the suit

premises with his family members and he was paying regular

rent to the plaintiff. As false cause of action was arose by the

plaintiff in the suit therefore, suit was not maintainable hence, it

was requested to dismiss the suit. Learned trial Curt, after

hearing of the parties, was pleased to dismiss the application

vide order dated 18th March, 2017. Hence, present petition is

preferred by the present petitioner under Section 12(2) of the

Gujarat Rents, Hotel and Lodging House Rates Contrl Act, 1947

as well as Article 14, 21, 226 and 227 of the Constitution of

India.

C/SCA/6890/2018 ORDER DATED: 23/09/2021

3. Heard learned advocate for the respective parties.

4. Learned advocate for the petitioner submits that the order

passed below Exh. 7 by the trial Court is contrary to the facts

and law. That, trial Court has materially erred in not

considering the material provision under Section 12(2) of the

Gujarat Rents, Hotel and Lodging House Rates Control Act,

1947 in stricto senso. It was further submitted that mandatory

requirements of issuance of notice under Section 12(2) of the

Act was not complied with by the plaintiff before filing of the

suit under the Act, and therefore, suit itself was not

maintainable. It was further submitted that finding arrived by

the trial Court in an application below Exh. 7 that factual aspect

raised by the defendant in his application could be adjudicated

only after taking evidence was not correct and proper. That, the

trial Court has committed error in not appreciating the

application moved by the defendant vide Exh.7 in its true letter

and spirit. Hence, it was requested by learned advocate

appearing for the petitioner to allow this petition by quashing

and setting aside the impugned order passed by the trial Court

C/SCA/6890/2018 ORDER DATED: 23/09/2021

vide Exh. 7 on 18th December, 2017 in Regular Civil Suit No.

4216 of 2015.

5. Learned advocate appearing for the respondent strongly

objected the arguments advanced by learned advocate for the

petitioner and contended that suit was not filed under the

provisions of the Gujarat Rent Control Act but, it was filed on

the basis of lease agreement executed between the plaintiff and

the defendant. Refering the contents of the plaint, it is

submitted that it is clearly averred in para 3 of the plaint that

lease agreement was executed between the parties and rent was

agreed and subsequently, rent was increased to Rs.4500/- per

month. It was further submitted that previously also Regular

Civil Suit No. 457 of 2010 was filed by the defendant before the

Civil Court, Vadodara against the original plaintiff-respondent

which was dismissed by the Court vide order dated 9 th January,

2018 . It is further submitted that against the order passed in

Regular Civil Suit No. 457 of 2010, Regular Civil Appeal No.

74 of 2018 was preferred by the respondent-defendant before

the District Court, Vadodara, which also came to be dismissed

C/SCA/6890/2018 ORDER DATED: 23/09/2021

vide order dated 29th September, 2018. That, defendant has

suppressed the material facts of filing of the Regular Civil Suit

No. 457 of 2010 as well as Regular Civil Appeal No. 74 of

2018. That, false application was filed by the defendant below

exh.7 with a view to harass the plaintiff. That, no agreed rent

amount was deposited by the defendant before the trial Court.

Hence, it was requested by learned advocate for the respondent

to dismiss this petition and confirmed the order passed by the

trial Court.

6. For ready reference Order 7 Rule 11 provides as under:-

11. Rejection of plaint. - The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law :

[(e)where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-

C/SCA/6890/2018 ORDER DATED: 23/09/2021

paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

7. If we consider the contents of the plaint of the suit filed by

the plaintiff, it appears that on the basis of leave and licensee

agreement executed between the parties, the suit was filed by

the plaintiff for recovery of the agreed rent which was not paid

by the defendant from 29th April, 2010 to September, 2015 for a

period of 66 months and for getting vacant possession. No

averments were made by the plaintiff in the suit as status of the

defendant was tenant of the suit premises. For the first time in

the application given by the defendant below Exh.7, he

contended that he was tenant of the suit premises and agreed

rent was fixed as Rs.4500/- per month as he was ready and

willing to pay arrears of rent. It also appears that the material

facts of filing earlier suit i.e. Regular Civil Suit No. 457 of 2010

was also suppressed by him in an application preferred by him

below exh.7. That, defence raised by the defendant in his

application below Exh.7 in respect of filing of the suit but no

C/SCA/6890/2018 ORDER DATED: 23/09/2021

notice was issued under Section 12(2) of the Gujarat Rent

Control Act, maintainability of suit in absence of mandatory

notice, cannot permit him to raise and to pray the Court to

dismiss or return the plaint under Order 7 Rule 11 of Civil

Procedure Code. Defence raised by the defendant would not be

considered for accepting the prayer. It is settled law, the only

averments made in the plaint can be considered while deciding

an application under Order 7 Rule 11 of Civil Procedure Code.

8. This Court would like to refer the judgment of Hon'ble

Apex Court rendered in case of Srihari Hanumandas Totala

Vs. Hemant Vithal Kamat and Ors. reported in

MANU/SC/0513/2021 wherein, it is held as under:-

16. Order 7 Rule 11(d) of CPC provides that the plaint shall be

rejected "where the suit appears from the statement in the plaint to be

barred by any law". Hence, in order to decide whether the suit is barred

by any law, it is the statement in the plaint which will have to be

construed. The Court while deciding such an application must have due

regard only to the statements in the plaint. Whether the suit is barred by

any law must be determined from the statements in the plaint and it is

not open to decide the issue on the basis of any other material including

the written statement in the case.

C/SCA/6890/2018 ORDER DATED: 23/09/2021

This Court would also relied upon the another decision

rendered in case of Saleem Bhai Vs. State of Maharashtra

reported in [MANU/SC/1185/2002 : (2003) 1 SCC 557] in

which, while considering Order 7 Rule 11 of the Code, it was

held as under :-

"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant

facts which need to be looked into for deciding an application

thereunder are the averments in the plaint. The trial court can exercise

the power under Order 7 Rule 11 CPC at any stage of the suit--before

registering the plaint or after issuing summons to the defendant at any

time before the conclusion of the trial. For the purposes of deciding an

application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the

averments in the plaint are germane; the pleas taken by the defendant in

the written statement would be wholly irrelevant at that stage, therefore,

a direction to file the written statement without deciding the application

under Order 7 Rule 11 CPC cannot but be procedural irregularity

touching the exercise of jurisdiction by the trial court."

9. Having considered the facts that the defence raised by the

defendant that he is tenant of the suit premises, the mandatory

C/SCA/6890/2018 ORDER DATED: 23/09/2021

requirement under Section 12(2) of the Gujarat Rents, Hotel and

Lodging House Rates Control Act cannot be a ground to allow

the application below Exh.7 preferred by the defendant. No

error is committed by the Court below in rejecting the

application below Exh.7. As there is no substance made by the

petitioner to interfere the order passed by the Court below.

Hence, present petition is ordered to be dismissed. Notice is

discharged.

10. Learned advocate appearing for the respondent requests to

direct the trial Court to expedite the suit as it is pending since

2015.

11. Considering the length of pendency of the suit, respondent

is permitted to request the learned trial Court to expedite the

hearing of the suit.

(B.N. KARIA, J) BEENA SHAH