Case Note & Summary
The case involves a Civil Revision Application filed by Omprakash Durgaprasad Sharma, the tenant of a suit flat, against an order of the Small Causes Court, Bombay, rejecting his application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint in RAE Suit No.1771/5485/1986 filed by Dr. Madhav Vasant Velinkar and others (respondents). The suit was for eviction and recovery of possession of the suit flat. The tenant contended that the suit was not maintainable because the plaintiff co-owner had not joined other co-owners, and that a consent decree in an earlier suit barred the present suit. The trial court rejected the application, holding that the suit was maintainable. The High Court, after hearing arguments, held that the revision was not maintainable under Section 115 CPC as the order was interlocutory, but treated it as a petition under Article 227 of the Constitution. On merits, the court held that a co-owner can maintain an eviction suit without joining other co-owners, and the consent decree did not bar the tenant from raising the issue of maintainability. The court also noted that the notice under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 must be given by all co-owners, but the suit can be filed by one co-owner. The revision was dismissed, and the trial court's order was upheld.
Headnote
A) Civil Procedure Code - Order 7 Rule 11 - Rejection of Plaint - Maintainability of Revision - An order rejecting an application under Order 7 Rule 11 CPC is an interlocutory order and not a 'case decided' under Section 115 CPC, hence revision is not maintainable. However, the court may treat the revision as a petition under Article 227 of the Constitution. (Paras 5-6) B) Rent Control - Maintainability of Suit by Co-owner - Section 15A of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - A co-owner can maintain a suit for eviction against a tenant without joining other co-owners, as each co-owner represents the landlord. The tenant cannot object to the maintainability on the ground that other co-owners are not joined. (Paras 7-8) C) Rent Control - Consent Decree - Res Judicata - Section 12 of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - A consent decree in an earlier suit does not operate as res judicata against the tenant's right to challenge the maintainability of a subsequent eviction suit, especially when the earlier decree was based on a different cause of action. (Paras 9-10) D) Rent Control - Notice under Section 12 - Requirement of Notice to All Co-owners - Section 12 of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - A notice under Section 12 must be given by all co-owners or on behalf of all, but the suit can be filed by one co-owner if the notice is given by all. (Para 11)
Issue of Consideration
Whether the Civil Revision Application is maintainable against an order rejecting an application under Order 7 Rule 11 of CPC? Whether the suit for eviction filed by one co-owner without joining other co-owners is maintainable? Whether the consent decree in earlier suit bars the tenant from raising the issue of maintainability?
Final Decision
The High Court dismissed the Civil Revision Application, holding that the order rejecting the application under Order 7 Rule 11 CPC was interlocutory and not revisable under Section 115 CPC, but treated the petition as one under Article 227 of the Constitution. On merits, the court held that the suit was maintainable as a co-owner can file an eviction suit without joining other co-owners, and the consent decree did not operate as res judicata. The trial court's order was upheld.
Law Points
- Consent decree does not bar tenant from challenging maintainability of eviction suit by co-owners
- Co-owner can maintain eviction suit without joining other co-owners
- Section 15A of Bombay Rents
- Hotel and Lodging House Rates Control Act
- 1947 requires notice to all co-owners
- Section 12 of Bombay Rents
- 1947
