Case Note & Summary
The case involves two appeals arising from property disputes over Flat No. 9, Matru Chhaya Building, Marine Drive, Mumbai. The appellant, Ms. Smita P. Doshi, is the daughter of Pravinchandra H. Doshi and Indumati P. Doshi. The suit flat was originally acquired on tenancy basis by Hiralal G. Doshi, father of Pravinchandra. After Hiralal's death, the tenancy rights devolved upon his heirs. The appellant claimed that she had become a tenant and owner of the flat, but the respondents (her parents and legal heirs) contended that she had no right to remain in the flat. In SC Suit No. 6487 of 2000, the City Civil Court decreed eviction against the appellant, declaring that she was not entitled to use the suit flat and directing her to vacate. The appellant filed First Appeal No. 95 of 2009 against that decree. Subsequently, the appellant filed Suit No. 1278 of 2011 seeking declaration of her ownership and tenancy rights. The defendants in that suit (respondents) filed a notice of motion under Order VII Rule 11(d) CPC for rejection of the plaint, which was allowed by the City Civil Court on 7 November 2012. The appellant filed First Appeal No. 820 of 2013 against that order. Both appeals were heard together. The High Court held that the appellant failed to prove any independent right, title or interest in the suit flat. The decree of eviction was based on evidence that the appellant was not a tenant and had no ownership. The subsequent suit was barred by res judicata as the issues were already decided in the earlier suit, and also barred by limitation. The court dismissed both appeals, upholding the eviction decree and the rejection of the plaint.
Headnote
A) Civil Procedure - Appeal against decree - Section 96 CPC - Eviction - Daughter claimed right to reside in suit flat based on alleged tenancy and ownership - Court held that appellant failed to prove any independent right, title or interest in the suit flat - Decree of eviction upheld (Paras 1-10).
B) Civil Procedure - Rejection of plaint - Order VII Rule 11(d) CPC - Subsequent suit for declaration of ownership and tenancy - Plaint rejected as barred by res judicata and limitation - Court held that the issues raised were already decided in earlier suit and suit was time-barred (Paras 11-20).
Issue of Consideration
Whether the appellant (daughter) had any right to remain in the suit flat after the death of her father, and whether the plaint in the subsequent suit was liable to be rejected under Order VII Rule 11(d) CPC.
Final Decision
Both appeals dismissed. Decree of eviction dated 6 December 2008 in SC Suit No. 6487 of 2000 upheld. Order dated 7 November 2012 rejecting plaint in Suit No. 1278 of 2011 upheld.
Law Points
- Section 96 CPC
- Order VII Rule 11(d) CPC
- Section 5(11)(c) Bombay Rents
- Hotel and Lodging House Rates Control Act
- 1947
- Section 15 Bombay Rents
Case Details
2020 LawText (BOM) (07) 13
First Appeal No. 95 of 2009 and First Appeal No. 820 of 2013
Mr. Ashutosh M. Kulkarni, Mr. Akshay Kulkarni, Ms. Akansha Helaskar for Appellant in FA/95/2009; Ms. Sharmila U. Deshmukh, Ms. Jaya Bagwe for Appellant in FA/820/2013; Ms. Smita Vora for Respondent No. 2; Mr. Yahya Ghoghari for Respondent No. 1A in FA/95/2009 and Respondent No.3 in FA/820/2013; Mr. R. N. Bhagattjee for Respondent Nos. 4 and 5 in FA/820/2013
Pravinchandra H. Doshi (since deceased through legal heirs) and Indumati P. Doshi
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Nature of Litigation
Civil appeals against eviction decree and rejection of plaint in property dispute.
Remedy Sought
Appellant sought to set aside eviction decree and to restore her suit for declaration of ownership and tenancy rights.
Filing Reason
Appellant claimed right to reside in suit flat as tenant and owner; respondents sought eviction.
Previous Decisions
City Civil Court decreed eviction in SC Suit No. 6487 of 2000 on 6 December 2008; City Civil Court allowed Notice of Motion No. 2240 of 2012 and rejected plaint in Suit No. 1278 of 2011 on 7 November 2012.
Issues
Whether the appellant had any right to remain in the suit flat after the death of her father?
Whether the plaint in the subsequent suit was liable to be rejected under Order VII Rule 11(d) CPC?
Submissions/Arguments
Appellant argued that she had become a tenant and owner of the suit flat.
Respondents argued that appellant had no independent right and that the subsequent suit was barred by res judicata and limitation.
Ratio Decidendi
The appellant failed to prove any independent right, title or interest in the suit flat. The decree of eviction was based on evidence. The subsequent suit was barred by res judicata and limitation.
Judgment Excerpts
First Appeal No.95 of 2009 is filed under Section 96 of the Code of Civil Procedure, 1908 inter-alia impugning the decree dated 6th December, 2008 passed by the City Civil Court, Bombay thereby decreeing the Suit No. 6487 of 2000 declaring that the appellant (original defendant) is not entitled use the suit flat and directing her to remove herself with all her bags and baggages from the suit flat and for other reliefs.
First Appeal No.820 of 2013 is filed by the appellant (original plaintiff) impugning the order passed by the City Civil Court on 7th November, 2012 thereby allowing the Notice of Motion No. 2240 of 2012 filed by the original defendant nos. 4 and 5 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 and rejecting the plaint filed by the appellant.
Procedural History
SC Suit No. 6487 of 2000 filed by respondents against appellant for eviction; decree passed on 6 December 2008. Appellant filed First Appeal No. 95 of 2009. Subsequently, appellant filed Suit No. 1278 of 2011 for declaration; defendants filed Notice of Motion No. 2240 of 2012 for rejection of plaint; allowed on 7 November 2012. Appellant filed First Appeal No. 820 of 2013. Both appeals heard together and disposed of by common order on 15 July 2020.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96, Order VII Rule 11(d)
- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947: Section 5(11)(c), Section 15
