Dr. Ashok vs Vinkar Bhavan

Z.A. Haq, J.—Heard Mr. Bhangde, learned Senior Advocate assisted by Mr. Agrawal, Advocate for the petitioner and Mr. Shelat, Advocate for the respondent. Rule. Rule is made returnable forthwith.

2 The challenge is to the order passed by the Trial Court on 17.06.2013 rejecting the preliminary objection filed by the petitioner-defendant to the maintainability of the suit at the behest of the respondent on the ground that the respondent is neither natural person nor juridical person and to the order passed by the District Court on 2nd of May 2013 upholding the order passed by the trial Court. The petitioner has also challenged the order passed by the trial Court on 17th June, 2013 rejecting the application filed by the petitioner for dismissal of the proceedings for non-joinder of necessary parties.

The respondent-landlord has filed application for fixation of standard rent against the petitioner. The relationship of the landlord and tenant is on the basis of the written agreement, which is at page no. 10 of the petition.

The submission of Mr. Bhangde, learned Senior Advocate is that the respondent "Vinkar Bhavan" is neither juridical person nor natural person to maintain the suit. Mr. Bhangde, learned Senior Advocate has submitted that the preliminary objection filed by the petitioner be treated as under Order VII Rule 11(a) of the CPC and as the respondent (Vinkar Bhavan) is neither natural person nor juridical person, no cause of action arises in its favour and it cannot maintain the civil suit and, therefore, the Trial Court was an under an obligation to reject the plaint. The submission on behalf of the petitioner is that the Trial Judge has committed an error in not rejecting the plaint as per the mandate of Order VII Rule 11(a) of the CPC and has erroneously postponed the decision on the issue. Mr. Bhangde, learned Senior Advocate for the petitioner has submitted that the Appellate Court has also committed same mistake by dismissing the appeal.

Mr. Bhangde, learned Senior Advocate, has submitted that "cause of action" means complete cause of action in favour of the plaintiff and for that he relies on the judgment reported in Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others, . He relies on paragraph 16 of the judgment and submission is made that the plaintiff has to incorporate the basic averments in the plaint to show the infraction of the right and the infraction coupled with the right itself.

Mr. Bhangde learned Senior Advocate has relied on the judgment reported in AIR 1954 29 (Nagpur) in which it is laid down that an unregistered or non-proprietary club is not a juridical person and as such cannot sue or be sued. Reliance is also placed by the learned Senior Advocate on the judgment reported in Hyderabad Cricket Association Gymkhana Grounds Vs. Cambridge Cricket Club and Another, to contend that the suit is not maintainable at the behest of the associations of individuals without any existence in the eye of law.

Mr. Bhangde, learned Senior Advocate has also relied on the judgment reported in T.K. Lathika Vs. Seth Karsandas Jamnadas, in support of his submission that the Court cannot enter into merits of the case without deciding preliminary objection. This judgment arises out of the proceedings u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 which specifically provides the ban on the right of the landlord to initiate proceedings.

In my view, judgment given in the case of G.I.P. Railway Senior Institute and another VS. Mohit Kumar Barat (supra) is not relevant at this stage of the matter as in view of the written agreement between the parties showing description of the respondent as landlord, the matter has to be adjudicated on merits. As far as the judgments in the case of Hyderabad Cricket Association vs. Cambridge Cricket Club and others, and Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others (supra) are concerned they deal with the cases where the plaint did not disclose cause of action. In the present case, situation is different as discussed earlier.

Mr. Bhangde, learned Senior Advocate relying on the judgment in the cases of Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others (supra) has submitted that there is distinction between the "material facts" and "particulars" and if the material facts necessary to constitute the cause of action are not complete, the plaint is bad in law and has to be rejected under Order VII Rule 11(a) of the Code of the Civil Procedure. In my view, the submission as made cannot be accepted at this stage. The plaint cannot be rejected under Order VII Rule 11(a) of the Code of Civil Procedure, specifically in view of the fact that the agreement, which is the foundation of the relationship of landlord and tenant between the petitioner and the respondent describes the respondent as "Vinkar Bhavan"

The preliminary objection, as filed by the petitioner does not state the provision under which it is filed. It is settled that non-mentioning of the provision in the application or preliminary objection cannot be a ground to reject the application, if the power to entertain and decide the application exists. In this background, it has to be examined as to whether the provisions of Order VII Rule 11(a) of the CPC can be invoked in the present case.

Order VII Rule 11(a) of the CPC lays that the Court shall reject the plaint where it does not disclose cause of action. It is not the case of the petitioner that the plaint does not disclose cause of action. The case of the petitioner is that the respondent-landlord is not a natural or juridical person and, therefore, no cause of action accrues in favour of the landlord-Respondent. Order VII Rule 11(a) of the CPC casts an obligation on the Trial Court to reject the plaint if the plaint does not disclose the cause of action. It does not require the Court to reject the plaint if the plaintiff fails to substantiate that cause of action has arisen in his favour.

It is settled law that while exercising jurisdiction under Order VII Rule 11(a) of the Code of Civil Procedure, the Court has to look at the plain averments in the plaint and the submissions of the defendant in the written statement or in the application under Order VII Rule 11(a) of the CPC need not be looked into. On examining the averments made in the plaint, the trial Court has to decide whether the plaint has to be rejected under Order VII Rule 11(a) of the CPC or Civil Suit has to be decided on merits. In the judgment reported in State of Orissa Vs. Klockner and Company and Others, the Hon''ble Supreme Court has laid down that while exercising jurisdiction under Order VII Rule 11(a) of the Code of Civil Procedure, the trial Court has to see whether plaint discloses the cause of action or not. The Trial Court is not required to examine whether the plaintiff has cause of action to file the suit or not.

In view of this, the submission as made on behalf of the petitioner that the plaint does not disclose cause of action in favour of the plaintiff and, therefore, it has to be rejected, is unacceptable.

The petitioner has filed application (Ex. 27) before the trial Court praying that the proceedings be rejected/dismissed for non-joinder of the 60 persons, who according to the petitioner, are the owners of the tenanted premises and are necessary parties to the proceedings. As observed earlier, there is an agreement of lease between the parties, which is in writing and as per the agreement "Vinkar Bhavan" is the landlord. Moreover, the learned trial Judge has rightly observed that the Resolution is passed in favour of Shri Dinanath Pathrabe authorising him to file Civil Suit, to give evidence, to produce the documents and to file affidavit of evidence. Furthermore, the learned trial Judge has rightly considered the fact that the petitioner has filed application (Ex. 27) after filing his evidence on affidavit on 1st June 2012 and after completing his examination-in-chief on 31st June, 2012. In my view, the order passed by the learned trial Judge on the application (Ex. 27) is just and proper and in consonance with the facts on the record.

I find no infirmity or illegality in the impugned orders passed by the learned trial Judge and they require no interference in the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. Therefore, Writ Petition is dismissed. In the circumstances, parties to bear their own costs.