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Case Brief 10

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11 views4 pages

Case Brief 10

Case

Uploaded by

Aditya Das
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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CPC, 1907 contains a provision in Order 7 Rule 11 of the code that whenever a

plaint is filed in any civil court for any claim/compensation to be recovered from
the opposite party it can be rejected by fulfilling necessary condition.

[Case Brief] Jasraj Lalaji Oswal V/S Raziya Mehboob Patel & Anr.

Case name: Jasraj Lalaji Oswal V/S Raziya Mehboob Patel & Anr.

Case number: WRIT PETITION NO. 4294 OF 2018

Court: THE HIGH COURT OF JUDICATURE BOMBAY

Bench: JUSTICE DAMA SESHADRI NAIDU

Decided on: December 18, 2019

Relevant Order 7 Rule 11 , Section 115 Civil Procedure Code


Act/Sections: Article 227 Constitution of India
Maharashtra Rent Control Act

 BRIEF FACTS AND PROCEDURAL HISTORY:


1. The landlord first filed civil suit no. 319 of 2002 for eviction. He filed it on to grounds
first unauthorised construction and second bona fide requirement . As the trial court
dismissed the suit the landlord filed appeal no. 648 of 2007. In that appeal the landlord
applied for amendment and securing it. In the light of the amendment and other factors
the appellate court set aside the trial court judgement and remanded the matter.
2. The landlord instead of pursuing the remanded suit he withdrew it and then he filed a
fresh civil suit no. 9 of 2006. Claiming that the previous suit does not deter him because
he pleaded in the presence suit a different cause of action and in the second suit the
defendant applied under order 7 rule 11 of civil procedure code .
3. The tenant filed the revision under Article 227 of the Constitution of India and the
landlord insist that it must have been under Section 115 of civil procedure code. A few
indisputable facts are the dispute related to tenancy , the landlord had taken out the
proceedings under the Maharashtra rent control Act and the case stands before a small
cause Court.
4. The procedural history is :
a. The plaintiffs filed civil suit no. 9 of 2016 to have the petitioner evicted in that
suit the petitioner as the defendant applied under order 7 rule 11 of civil procedure
code to have the plaint rejected. It was argued that the plaint reveals no cause of
action so it should be dismissed under order 7 rule 11 of the civil procedure code.
b. On September 16 2017 the trial court through its order dismissed application and
aggrieved by that the petitioner filed the writ petition.
c. Respondents counsel through statutory provisions and also by the practice of the
court contended that the only resource available for the petitioner is to invoke
section 115 of the civil procedure code.
d. Petitioners council also submitted that the petitioner only want a partial rejection
of the plaint and the rejection is confined only to bona fide requirements .

 ISSUE BEFORE THE COURT:


1. Whether the revision is maintainable under Article 227 of the Constitution of India or
under Section 115 of the Code of Civil Procedure ?
2. Whether the tenants application is to be allowed ?
3. The concept of amicus curiae is to be considered ?
4. Which order or decree ?

 RATIO OF THE COURT:


1. The Court take consideration of the case Bhartiben Shah were many revisions were filed
under article 227 of the Constitution challenging the orders passed by the trial courts
according to it preliminary objection were raised about the maintainability of the revision
under article 227 and section 34 (4) of the rent act.
2. It was held that the power of the supreme tendons conferred on the high court under
article 227 of the Constitution should be exercised most sparingly and it should be e only
used to keep subordinate courts and inferior tribunals within the boundary of their
authority and not for correcting errors of facts of law.
3. it was acknowledged that an order to be revisable need not necessarily be an order for
possession or fixation for recovery of friend but the order sought to be revised must
directly affect the substances rights and liabilities of parties under the Maharashtra rent
control Act or any other substances law not nearly rights under a procedural law like the
code of civil procedure or the evidence act.
4. The court holds that an order to be revisable under section 34 (4) of the Maharashtra rent
control Act the order must affect the very existence of the suit for the foundation of the
parties case in their pleadings and not me earlier procedural order not affecting the
substances rights of parties through such procedural orders may ultimately affect the
strength or weakness of the case of the aggrieved litigant which is to be finally
determined at the trial while passing the degree in the suit or final order in the
proceedings
5. The court holds that the revision is maintainable neither under article 227 of the
Constitution of India not under section 115 of the code of civil procedure it is only
maintainable under section 34 (4) of the Maharashtra rent control Act 1999.
6. The court hold that the writ petition no. 4294 of 2018 is not maintainable under article
227 of the Constitution of India to challenge an order under order 7 rule 11 of code of
civil procedure the application allowed lies under section 34 (1) of the Maharashtra rent
control Act .
7. Application if dismissed revision lies under section 34 (4) of the Maharashtra rent
control Act and in both the instances the forum must be the appellant bench of causes
court order the district court depending upon the case.
8. The Court returns the Writ Petition, instead of dismissing it, the Court does not want to
dismiss a case as it professes to have no jurisdiction the theory of self-imposed
restriction does not apply to the Article 227, as it applies to Article 226 of the
Constitution of India.

 DECISION HELD BY COURT:


1. The court returns the writ petition instead of dismissing it .
2. If the petitioner represents this revision under Section 34 (4) of the Maharashtra Rent
Control Act, the appellate Bench of the Small Causes Court, Pune, will entertain it on the
merits, without reference to any delay, laches, or limitation.
3. No order on costs.

- Author : Aditya das

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