Read Order: Goodwill Realtors and Properties Pvt. Ltd v. Smt. Bhanumati Keshrichand Jhaveri and ors 

Tulip Kanth

Mumbai, April 18, 2022: While considering a Civil Writ Petition filed by the Petitioner-Original Defendant invoking the jurisdiction of the Bombay High Court under Articles 226 and 227 of the Constitution of India, impugning the Judgment passed in Revision Application by the Appellate Bench of the Court of Small Causes at Mumbai thereby dismissing the said Revision and confirming the Order for framing of additional issues in the said Suit, the High Court has affirmed that if a proceeding is not maintainable before the Court, then it is not expected from the concerned Court to record findings on merits of the case before it.

The Bench of Justice A.S. Gadkari was of the opinion that the Appellate Bench had committed a serious error while evaluating the merits of the matter, while recording a categorical finding that the said Revision was not maintainable and dismissed it. 

The Plaintiffs(second to fourth Respondents herein) along with their mother Smt. Bhanumati Keshrichand Jhaveri had instituted a suit in the Court of Small Causes at Mumbai under Section 41 of the Presidency Small Causes Court Act, for eviction of the first seven defendants from the suit property.

The suit property was originally acquired by the members of Baria family, who gave it on lease along with structures standing thereon to Mr.Tarachand N. Jhaveri and Mr. Ratanchand N. Jhaveri in the year 1938. The suit property was inherited by 7 legal heirs of Mr. Tarachand and Mr. Ratanchand and these 7 legal heirs had filed a Suit in this Court against the fifth Respondent/ first Defendant for its eviction from the suit premises and for a declaration that it had no right, title and interest in it. The said suit was decreed in terms of Consent Terms and the fifth Respondent was accepted as a monthly tenant by the said 7 legal heirs.

Subsequently a declaratory suit was filed in the Court of Small Causes at Mumbai against the said 7 legal heirs. The said suit was disposed of by the Court of Small Causes on the basis of the Consent Terms. The fifth legal heir passed away leaving behind her, daughter and grand-daughter and other legal heir and their total share component in the entire suit property constituted 5.015%. During the pendency of the present suit, Petitioner acquired right, title and interest constituting 5.015% share in the suit property from the said two successors of the fifth heir by executing registered Deeds of Assignments.

After acquiring the said 5.015% share in the suit premises, Petitioner filed an application in the said suit for joining it as a Plaintiff or in the alternative, as a Defendant. The Trial Court rejected the said Application and in an Appeal preferred by the Petitioner, the Appellate Bench of the Court of Small Causes at Mumbai while allowing the said Appeal, directed the second to fourth Respondents to add Petitioner as Defendant in the said suit. The Appellate Bench further directed the Petitioner to appear in the said suit as Defendant and submit its written statement but these Respondents did not effect necessary amendment to implead Petitioner as fourteenth Defendant within stipulated period. However, Petitioner filed its written statement within the period of limitation as prescribed by the Appellate Bench.

Petitioner thereafter, filed an Application for framing of additional issues and the second to fourth Respondents /Plaintiffs filed their reply to the said Application and opposed it predominantly on the ground that, the Petitioner had no locus standi to raise any issue on merits as it had been added only as a proforma Defendant. Petitioner filed its rejoinder to this Reply. The Trial Court rejected the said Application and the Revision petition referred by the Petitioner had been dismissed by the Appellate Bench of the Court of Small Causes at Mumbai though by giving reasoning, on the predominant ground that the said Revision was not maintainable before it.

The petitioner’s main argument was that once the Revisional Court comes to conclusion that the said Revision is not maintainable, it ought not have dwell into the merits of the said case, however it had done it and committed further error while passing the impugned Judgment and Order. 

According to the Bench,the impleadment of Petitioner as fourteenth Defendant in the suit was in furtherance of the Order of the Appellate Bench by which it had not only permitted the Petitioner to be impleaded as a Defendant but had also permitted it to file written statement within stipulated period as directed thereof. By the said Order the Petitioner had been given locus standi as fourteenth Defendant and no prohibition was imposed upon Petitioner from adopting additional plea than taken in impledment Application or to restrict its pleading as adopted in its Application.

The Bench observed that the Petitioner had not changed its stance than what was taken in its Application for impleadment, but had now adopted additional pleading which was not prohibited under the law and therefore it couldn’t be said that, it was a complete U-turn taken by the Petitioner to approbate and reprobate to the detriment of its opponents.

It was also held that the locus standi of the Petitioner as fourteenth Defendant and its filing of written statment had been duly accepted by the Plaintiffs/second to fourth Respondents as after allowing the Application filed by the Petitioner for its impleadment in the said suit, the stage of Order 1 Rule 10 (2) of the Code of Civil Procedure was completed and in furtherance of permission granted by the Appellate Bench to permit Petitioner to file written statement and after it was filed on record on March 6, 2020, the stage as contemplated under Order 8 of CPC had also been completed.

Elucidating further on the Code Of  Civil Procedure, the Bench said that under Order 14 Rule 1(3) each material proposition affirmed by one party and denied by other, shall form the subject of a distinct issue. Order 14 Rule 1(4) of CPC says that the issues are of two kinds, (a) issues of fact and (b) issues of law. The pleading of Petitioner in paragraph 15 of written statement according to this Court, gave rise for framing of issue of fact so also of law. Petitioner had therefore requested to frame two issues for proper adjudication of the said suit which according to this Court, was necessary for proper and complete adjudication of the present suit.

It was also noted that the Plaintiffs were not certain about the structures standing on the suit property and the pleadings of the Plaintiffs while describing the property were not precise and were as vague as possible. The Petitioner/fourteenth Defendant had therefore raised a contentious material proposition as to whether the plaintiffs had correctly described the suit property. In view thereof, this Court was of the opinion that, it was necessary to frame the said issue.

The Bench said,”The Revisional Court in para No.19 of its impugned Judgment and Order dated 1st September, 1991 has held that, the said Revision Application preferred by the Petitioner was not maintainable, however, in earlier paragraphs has expressed its opinion and findings on merits. It is the settled position of law that, if a proceeding is not maintainable before the Court, it is not expected from the concerned Court to record findings on merits of the case before it. The Appellate Bench has thus committed a serious error while evaluating the merits of the matter, while recording a categorical finding that, the said Revision was not maintainable and dismissed it. Thus, both the Courts below have committed serious error in rejecting the Application filed below Exh-601 by the Petitioner.”

Thus, the  petitioner succeeded and the Application filed by the Petitioner in the said Suit was partly allowed and two issues were directed to be framed as additional issues in Suit pending on the file of the Court of Small Causes at Mumbai.

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