BLAZE FERNANDES Vs. JOAQUIM HERLANDER COELHO PEREIRA

JUDGEMENT

(1.) The applicant seeks a writ to quash and set aside the order passed by the learned Civil Judge Junior Division Panaji dated 08.03.2018 pursuant to which the application moved by the applicant for rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code came to be dismissed. The applicant is the original defendant and the respondents are the plaintiffs before the Trial Court who would be referred to as the applicant and the respondents for brevity's sake hereinafter.

(2.) The case of the respondents briefly was that the father and later his mother was a statutory tenant of the commercial premises of which the applicant continued in possession. The respondents had taken a plea that the applicant was in illegal possession and occupation of the suit shop and sought for a direction to deposit the mesne profits by their application under Order XV-A of the Civil Procedure Code. The applicant had filed an application under Section 18 of the Goa Buildings (Lease, Rent and Eviction) Control Act, 1968 for the deposit of rent as a tenant which was granted by the Trial Court while the application of the respondents under Section XV-A came to be dismissed. Both these orders were not challenged by the respondents and had attained finality. It was the case of the applicant that commercial tenancy was heritable and a mere blanket statement by the respondents that he was a trespasser could not supercede the settled law on that point. The learned Trial Court had erroneously dismissed the application moved by him under Order VII Rule 11 of the Civil Procedure Code on the ground that only if the applicant had produced any documents to establish his claim of tenancy to the suit premises, the suit would have been barred by law. The learned Trial Court had erred in the exercise of its discretion and passed the order which was liable to be interfered with in revision.

(3.) Heard Shri F. E. Noronha, learned Counsel appearing for the applicant who adverted to the pleadings in the plaint and submitted that there was no singular dispute at the instance of the respondents that his father and subsequently his mother were the tenants of the suit premises though disputing the right of the applicant to have inherited the same on their demise. He next adverted to the impugned order and submitted that the learned Trial Court was totally in error to cast a duty on the applicant to produce documents to establish his plea when it was only the averments in the plaint which had to be examined for the purpose of considering the application under Order VII Rule 11 of the Civil Procedure Code. He next adverted to Order VII Rule 11(d) of the Civil Procedure Code which only required the Court to reject the plaint under Rule 11(d) where the suit appears from the statement in the plaint to be barred by any law. A reference was also made to Order VII Rule 1 of the Civil Procedure Code which dealt with the particulars to be contained in the plaint and submitted that the expression "barred by law" contained under Order VII Rule 11(d) of the Civil Procedure Code also included judicial pronouncement and in that context placed reliance in Bharvagi Construction & anr. vs. Kothakapu Muthyam Reddy & Ors., 2018 1 AllMR 459 (S.C.).