Appl 27 of 2020

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 27 OF 2020
IN
NOTICE OF MOTION (L) NO. 2515 OF 2016
IN
SUIT NO. 187 OF 1993
1. Sheela Ram Vidhani
of Bombay Indian Inhabitant
residing at 6th Floor, Vidhani Cottage, 244,
Walkeshwar Road,Malabar Hill,
Bombay – 400 006.
2. Jayant Gopaldas Farsswani of

Bombay Indian Inhabitant residing at Garodia
Place, 90, Feet Road,
Ghatkopar (East), Mumbai – 400 086 …. Appellants
(Orig. Plaintiffs)
Versus
1. M/s S. K. Trading Company
a partnership firm carrying on business at 111,
Embassy Apartments, 46, Nepean Sea Road,
Bombay – 400 036.
2. Mrs. Santosh Prakash Mehra

(since deceased)
2(a) Sunil Kumar Mehra of

Bombay Indian Inhabitant residing at 111-B,
Embassy Apartments, 46,
Napean Sea Road, Mumbai – 400 026
2(b) Sunita Rajesh Bhasin,

20/1, Bhasin Ville, Rafi Ahmed Kidwai Road,
Wadala, Mumbai - 400 031.
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2(c) Madhu Pravin Kapur,

6-3-596/63/8/17, Navin Nagar,
Erra Manzil, Hyderabad – 500 004.
all being the heirs and legal representatives of
Defendant No. 2. since deceased.
3. Kevalkumari Jagdish Mehra

Nos. 2 and 3 both of Bombay Indian
inhabitants both residing at 111 Embassy
Apartments, 46, Nepean Sea Road, Bombay 400
036 (since deceased)
4. M/s. Suniti Prints
a partnership firm carrying on business at Viegas
Wadi, Mehra Compound, Bhagoji Keer Marg,
Pitambar Lane, Bombay – 400 016.
5. Suniti Sunil Mehra
6. Vivek Jagdish Mehra
Both having their address at Viegas

Wadi, Mehra Compound Bhagoji Keer Marg,
Pitambar Lane, Bombay – 400 016. …. Respondents
(Orig. Defendants)
…......
Ms. Sonal alongwith Ms. Spardha Sharma and Ms. Shruti Maniar instructed by
Solomon & Co. for the Appellants.
Ms. Bhairavi Pathak alongwith Ms. Urvi Shah instructed by I. R. Joshi & Co. for
Respondents Nos. 1 to 3.
Mr. S. U. Kamdar, Senior Advocate alongwith Mr. Chirag Kamdar, Ms. Vedangi
Tulzapurkar and Ms. Nanki Grewal instructed by Wadia Ghandy & Co. for
Respondent Nos. 4 to 6.
…......
CORAM : S. J. KATHAWALLA AND
VINAY JOSHI, JJ.
RESERVED ON : 12th MARCH, 2021
PRONOUNCED ON : 19th JUNE, 2021
(Through video-conferencing)
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ORAL JUDGMENT : ( PER S.J. KATHAWALLA & VINAY JOSHI, JJ. )
1. ADMIT. Heard finally with the consent of the Learned Counsels
appearing for the respective parties.
2. The Appellants who are Plaintiffs in the Suit, have challenged the
legality of the Order dated 14.01.2019 passed in Notice of Motion No. 2515/16 filed in
Suit No. 187 of 1993 (“Impugned Order”), whereby the Learned Single Judge
allowed the Notice of Motion, thereby rejecting the plaint against Defendant Nos. 4 to
6 for want of a cause of action under Order VII Rule 11(a) of the Code of Civil
Procedure (“Code”).
For the sake of convenience, the Parties shall hereinafter be referred to as per their
original status in the Suit i.e. the Appellants will be referred to as the Plaintiffs,
Respondent Nos. 1 to 3 will be referred to as Defendant Nos. 1 to 3 and Respondent
Nos. 4 to 6 will be referred to as Defendant Nos. 4 to 6.
3. The facts in brief are :
3.1. Defendant No.1 - M/s S.K. Trading Company, was a Partnership Firm
in which Defendant Nos. 2 and 3 were Partners. Defendant No. 1 owns a property
admeasuring 1714 square yards which is described at Exhibit A annexed to the plaint
(“Suit Property”). Defendant Nos. 1 to 3 agreed to sell the Suit Property to the
Plaintiffs for a consideration of Rs. 43,00,000/-, pursuant to which an Agreement to
Sell was executed on 07.12.1985 (“Agreement to Sell”).
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3.2. Defendant No. 4 - M/s Suniti Prints, was a Partnership Firm of which
Defendant Nos. 5 and 6 were Partners. The Suit Property was occupied by several
tenants. Defendant No. 4 was one of the tenants in occupation of approximately 500
square yards of the Suit Property. Defendant Nos. 5 and 6 were closely related to
Defendant Nos. 2 and 3.
3.3. Under the Agreement to Sell, the mode of payment of consideration was
fixed between the parties thereto. One of the conditions was that the Plaintiffs
(Purchasers) were to initially pay a sum of Rs. 8,00,000/- directly to the tenant of
Defendant No.1 i.e. to Defendant No. 4, for acquiring alternate accommodation.
3.4. It is the Plaintiffs’ case that, the Vendors (Defendant Nos. 1 to 3) had
contracted with their tenant / Defendant No. 4, to vacate the tenanted premises in
exchange for a lump-sum payment of Rs.28,00,000/-. It was agreed at the request of
Defendant Nos. 1 to 3, that this amount of Rs.28,00,000/- shall be paid directly by the
Plaintiffs to Defendant No.4. Out of this amount, Rs.8,00,000/- was to be paid in
advance to Defendant No. 4 and the balance amount was to be paid at the time of
handing over peaceful possession. The remaining consideration was to be paid to the
owners i.e. to Defendant Nos. 1 to 3.
3.5. The Plaintiffs have paid partial consideration of Rs.6,15,000/- to the
Vendors (Defendant Nos. 1 to 3) and at the request of the Vendors, Rs.13,10,000/-
directly to Defendant No. 4 (tenant).
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3.6. It is contended that the Plaintiffs were ready and willing to pay the
balance consideration, however, the Vendors refused to perform their part of the
contract. Particularly, the Vendors refused to state as to when Defendant No.4 (tenant)
would be in a position to vacate part of the Suit Property. Finally, the Plaintiffs issued a
legal notice calling upon the Vendors to perform their obligation by accepting part
consideration, however, to no avail.
3.7. The Plaintiffs therefore filed the above Suit before this Court seeking
specific performance of the Agreement to Sell dated 07.12.1985 and in the alternative,
for refund of the earnest amount and for damages. The reliefs sought in the Suit are
reproduced hereunder :
“(a) That this Hon’ble Court be pleased to declare that the
Agreement dated 7th December, 1985, (Exhibit B to the Plaint) is a
valid, subsisting and binding agreement between the plaintiff and the
1st Defendant including the 4th Defendants;
(b) That the Defendants be ordered and decreed to specifically
perform the Agreement dated 7th December 1985 Exhibit “A” to the
plaint, and that the Defendants be directed to hand over vacant and
peaceful possession to the plaintiff of the said property as the said
agreement;
(c) That in the alternative prayer (b) above, this Hon’ble Court
be pleased to order and decree that the Defendants do pay to the
Plaintiffs a sum of Rs. 1,55,25,000/- as per the particulars set out in
Exhibit “F” to the plaint along with interest at the rate of 21% per
annum compounded quarterly thereon from the date of filing of the
suit until payment and/or realization thereof;
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(d) That this Hon’ble Court declare that the repayment of the
amount of Rs. 19,25,000/- together with interest at the rate of 21% per
annum compounded quarterly from the date of filing of the suit till
payment and/or realization be pleased to order and decree and be duly
secured by a valid and subsisting charge on the said property (described
in Exh.A hereto) with structures standing thereon and that the said
charge be enforced by an under the directions of this Hon’ble Court by
sale of the same and the net sale proceeds thereof be paid over to the
plaintiffs in or towards the satisfaction of their claims against the
Defendants and in the event of there being any deficiency liberty be
reserved and granted to the Plaintiffs to apply for and to obtain a
personal decree against the Defendants to the extent thereof;
(e) That pending the hearing and final disposal of the suit …...
(f) That pending the hearing and final disposal of the suit …...
(g) That pending the hearing and final disposal of the suit …...
3.8. In the Particulars of Claim (Exhibit ‘F’ / ‘G’ to the Plaint - page No. 109
of the Appeal paper-book), an amount of Rs. 1,55,25,000/- is claimed against the
Defendants towards damages (prayer clause ‘c’) and a refund of Rs. 19,25,000/- (i.e.
Rs. 6,15,000/- paid to Defendant Nos. 1 to 3 and Rs. 13,10,000/- paid directly to the
Defendant No. 4 / tenant at the request of Defendant Nos. 1 to 3) is claimed from the
Defendants by the Plaintiff (prayer clause ‘d’).
4. All the Defendants contested the Suit by filing their respective written
statements. Based on rival contentions, the Learned Single Judge has settled the
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issues. Moreover, some additional issues have also been framed. Parties have filed
their Affidavit of Documents and Evidence. Defendant Nos. 4 to 6 thereafter took out
Notice of Motion No.2515/16 for rejection of plaint against them for want of cause of
action in terms of Order VII Rule 11(a) of the Code. The Learned Single Judge by the
Impugned Order allowed the Notice of Motion, with the following findings :
i) Possession of a tenanted premises cannot be sought by an outsider who
has made payment to a tenant of the landlord in the guise of specific performance.
ii) In fact, even if the Plaintiffs succeed in the Suit and get into the shoes
of the landlord, they are required to seek eviction and possession of the premises
occupied by a tenant by pursuing their remedy under the Maharashtra Rent Control
Act, 1999 from the Small Causes Court.
iii) The reference to the equivalent of the old Section 19(c) of the earlier
Specific Relief Act will not hold good after the advent of a special statute governing
landlord / tenant relations, plus now containing a Statutory jurisdictional bar.
iv) The submission that one of several defendants cannot seek a rejection
of the entire plaint against them, but that only all defendants can together seek
rejection of the plaint is without foundation and does not commend itself.
5. Appearing for the Plaintiffs, Ms. Sonal, Learned Counsel submitted that
the plaint cannot be rejected against some of the Defendants. According to her, in case
of rejection, a suit can only be rejected as a whole against all the defendants and not
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against some of the Defendants. She further contended that the Learned Single Judge
failed to appreciate that the captioned Suit clearly discloses a cause of action against
Defendant Nos. 4 to 6. Relying on Section 19(c) of the Specific Relief Act, 1963, the
Learned Counsel Ms. Sonal submitted that Section 19(c) of the Specific Relief Act,
1963, enables the Plaintiffs to implead Defendant Nos. 4 to 6 in the Captioned Suit
since they are claiming title / rights in the property. Lastly, she submitted that the
Learned Single Judge failed to appreciate that the Appellants have also prayed for an
alternate relief of refund of monies which were directly paid by them to Defendant
Nos. 4 to 6 (prayer clause ‘d’), and on this count the Suit to that extent would be
maintainable.
6. To counter the submissions made on behalf of the Plaintiffs, the Learned
Senior Advocate Shri S.U. Kamdar representing the Defendant Nos. 4 to 6 submitted
that there is no legal embargo on rejecting a plaint against some of the defendants for
want of a cause of action. Further, that Defendant Nos. 4 to 6 are strangers to the
Agreement to Sell dated 07.12.1985, based on which the captioned Suit for specific
performance has been filed. It was contended that Defendant Nos. 4 to 6, not being
parties to the Agreement to Sell, are neither necessary, nor proper parties to the Suit.
Furthermore, Defendant Nos. 4 to 6 being tenants of part of the Suit Property, are
entitled to statutory protection under the appropriate rent control legislation.
Moreover, a suit for recovery of possession against the defendants / tenants is not
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maintainable in an ordinary Civil Court, in terms of Section 33 of the Maharashtra
Rent Control Act, 1999. Possession of tenanted property has to be recovered only
through a suit instituted under the appropriate rent laws before the Court of
competent jurisdiction i.e. in the Court of Small Causes, Mumbai.
7. Both sides have made exhaustive submissions and also filed written notes
of arguments. Both Learned Counsels have relied on several decisions. However, we
deem it appropriate to only refer to a few of them which we find relevant and
necessary. On the basis of our assessment of the respective submissions, two principal
contentions emerge for determination:
i. Whether a plaint can be rejected against some of the Defendants; and
ii. Whether the plaint does not disclose cause of action against Defendant Nos. 4
to 6, thereby warranting rejection against them in terms of Order VII Rule 11(a) of
the Code.
8. As regards the contention of the Plaintiffs that the Learned Single Judge
erred in rejecting the Plaint against some of the Defendants, and that a suit can only be
rejected as a whole against all the defendants and not against some of the defendants,
Ms. Sonal Learned Advocate for the Appellants placed reliance on the decision of the
Supreme Court in the case of Madhav Prasad Aggrawal and another vs. Axis Bank
Limited and another1. The facts of the case are, that in a Suit instituted under the
original civil jurisdiction of this Court, one of the Defendants therein viz. Axis Bank
1 (2019) 7 SCC 158
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Ltd. took out a Notice of Motion for rejection of plaint by invoking the provisions of
Order VII Rule 11(d) of the Code, contending that the Suit is barred by the provisions
of law. Initially, the Learned Single Judge of this Court was of the view that the Suit is
not barred under law, and accordingly dismissed the Notice of Motion. In appeal, the
Division Bench of this Court took a contrary view holding that the prayer made against
the defendant, Axis Bank Ltd. was barred under the law, and by allowing the appeal,
dismissed the Suit against Axis Bank Ltd. Being aggrieved, the plaintiffs therein
approached the Supreme Court. It was urged that the plaint cannot be rejected only
against one of the defendants, however, it can be rejected as a whole. The Supreme
Court held that it is not permissible to reject a plaint qua any particular portion of a
plaint including against some of the defendants and continue the same against the
others. The Supreme Court by citing its earlier decision in the case of Sejal Glass Ltd
vs. Navilan Merchants (P) Ltd.2, expressed that the plaint can either be rejected as a
whole, or not at all. It is not permissible to reject a plaint qua some of the defendants
and continue the same against others. Ultimately, the order of rejection of plaint
against one of the defendants Axis Bank, was reversed.
9. Learned Senior Counsel Shri Kamdar for Respondent Nos. 4 to 6 by
placing reliance on the decision in Church of Christ Charitable Trust and Education
Charitable Society vs. Ponniamman Educational Trust 3, submitted that prior to the
2 (2018) 11 SCC 780

3 (2012) 8 SCC 706
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decision in Madhav Aggrawal’s case (supra), the Supreme Court had ruled that a plaint
as a whole can be rejected against some of the defendants in terms of Order VII Rule
11 of the Code. He submitted that the decision in the case of Church of Christ (supra),
delivered by a co-equal bench, being prior to the decision in Madhav Aggrawal’s case
(supra) would govern the field. In support of the aforesaid contention, he relied on the
decision of the Supreme Court in the case of Sundeep Kumar Bafna vs. State of
Maharashtra and another4.
10. We have gone through the decision in the case of Church of Christ (supra)
rendered by the two Hon’ble Judges of the Supreme Court wherein, it is ruled that a
plaint as a whole can be rejected against some of the defendants. The latter decision in
Madhav Aggrawal’s case (supra) was also rendered by two Hon’ble Judges of the
Supreme Court, and therein the earlier decision in the case of Church of Christ (supra)
was not considered. In this context, we have gone through the decision in the case of
Sundeep Kummar Bafna (supra) wherein the Supreme Court has observed that the
decision rendered by a co-equal bench or larger bench, earlier in time, would prevail.
Relevant observations in this regard, are as follows:-
“17. The Constitution Bench in Union of India Vs. Raghubir

Singh, (1989) 2 SCC 754 has come to the conclusion extracted
below :(SC pp 777-78, para 27)
“27……….It is in order to guard against the
possibility of inconsistent decisions on points of law
4 (2014) 16 SCC 623
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by different Division Benches that the rule has been

evolved, in order to promote consistency and
certainty in the development of the law and its
contemporary status, that the statement of the law
by a Division Bench is considered binding on a
Division Bench of the same or lesser number of
Judges. This principle has been followed in India by
several generations of Judges.”
“19. It cannot be over-emphasised that the discipline demanded by a

precedent or the disqualification or diminution of a decision on the
application of the per incuriam rule is of great importance, since
without it, certainty of law, consistency of rulings and comity of
Courts would become a costly casualty. A decision or judgment can be
per incuriam any provision in a statute, rule or regulation, which was
not brought to the notice of the Court. A decision or judgment can also
be per incuriam if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a Co-equal or Larger Bench; or if
the decision of a High Court is not in consonance with the views of this
Court. It must immediately be clarified that the per incuriam rule is
strictly and correctly applicable to the ratio decidendi and not to obiter
dicta. It is often encountered in High Courts that two or more
mutually irreconcilable decisions of the Supreme Court are cited at the
Bar. We think that the inviolable recourse is to apply the earliest view
as the succeeding ones would fall in the category of per incuriam.”
11. In view of the foregoing settled position, we are of the view that the
earlier decision rendered by the Supreme Court in the case of Church of Christ (supra)
needs to be followed which has laid down that the plaint as a whole can be rejected
against some of the defendants. The Learned Single Judge was therefore correct in
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holding that there is no legal embargo on rejecting the plaint as a whole against some
of the defendants, and we also do hold accordingly.
12. Before proceeding with the next point of determination viz. Whether the
plaint does not disclose cause of action against Defendant Nos. 4 to 6 warranting rejection
against them, in terms of Order VII Rule 11(a) of the Code, it would be apposite to note
that the Notice of Motion taken out by Defendant Nos. 4 to 6, resorts only to Order
VII Rule 11(a) of the Code. Though a feeble attempt was made by these Defendants to
contend that there is a jurisdictional bar on entertaining the claim of possession, this
was not canvassed as a ground for rejection of plaint in terms of Order VII Rule 11(d)
of the Code. In that context, we have gone through the reliefs claimed in the Notice of
Motion which are reproduced hereunder :
“(a) that this Hon’ble Court be pleased to reject the Plaint filed by
the Plaintiffs and in the alternative be pleased to dismiss this suit
under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for want
of cause of action against Defendants No. 4 to 6 and mis-joinder of
parties;” (emphasis supplied)
13. Besides that, in the entire Notice of Motion, Defendant Nos. 4 to 6
nowhere seek rejection of the plaint under Order VII Rule 11 (d) of the Code, claiming
that the captioned Suit is barred by any law.
14. After noting the above, we now refer to the decision of the Supreme Court
in the case of Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and
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others5, which has discussed in detail the law governing rejection of plaint in terms of
Order VII Rule 11 of the Code. The relevant portion is extracted below :
“10. In Saleem Bhai v. State of Maharashtra and Ors. (2003 (1)

SCC 557) it was held with reference to Order VII Rule 11 of the Code
that the relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaint. The trial Court
can exercise the power at any stage of the suit - before registering the
plaint or after issuing summons to the defendant at any time before the
conclusion of the trial. For the purposes of deciding an application
under clauses (a) and (d) of Order VII Rule 11 of the Code, the
averments in the plaint are germane; the pleas taken by the defendant
in the written statement would be wholly irrelevant at that stage.
11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors.

(1998 (2) SCC 70) it was held that the basic question to be decided
while dealing with an application filed under Order VII Rule 11 of the
Code is whether a real cause of action has been set out in the plaint or
something purely illusory has been stated with a view to get out of
Order VII Rule 11 of the Code.
12. The trial Court must remember that if on a meaningful and

not formal reading of the plaint it is manifestly vexatious and
meritless in the sense of not disclosing a clear right to sue, it should
exercise the power under Order VII Rule 11 of the Code taking care to
see that the ground mentioned therein is fulfilled. If clever drafting has
5 (2004) 3 SCC 137
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created the illusion of a cause of action, it has to be nipped in the bud

at the first hearing by examining the party searchingly under Order X
of the Code. (See T. Arivandandam v. T.V. Satyapal and Anr. (1977
(4) SCC 467).
13. It is trite law that not any particular plea has to be considered,
and the whole plaint has to be read. As was observed by this Court in
Roop Lal Sathi v. Nachhattar Singh Gill (1982 (3) SCC 487), only a
part of the plaint cannot be rejected and if no cause of action is
disclosed, the plaint as a whole must be rejected.
14. In Raptakos Brett & Co. Ltd. v. Ganesh Property (1998 (7)
SCC 184) it was observed that the averments in the plaint as a whole
have to be seen to find out whether clause (d) of Rule 11 of Order VII
was applicable.”
15. We may now advert to the decision of this Court in the case of Gopal
Shrinivasan Vs. National Spot Exchange Limited6. The Division Bench of this Court has
in paragraph 31 observed as under :
“31. ……..The averments in the plaint are required to be seen in

their entirety to find out the real cause of action. The Court would
consider whether on a meaningful reading of the plaint, the plaint is
manifestly vexatious and merit less so as to not disclose a clear right to
sue, only in such a situation power under Order 7 Rule 11 of the Code
can be exercised by the Court to reject the plaint against the
defendants. It is a settled law that there cannot be a
6 (2016) 4 Bom CR 492
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compartmentalization, dissection, segregation and inversion and

language of the various paragraphs in the plaint nor is it permissible to
cull out a sentence or passage and to consider the same in isolation. It
is the substance and not merely the form which is required to be looked
into. The pleadings are required to be construed as it stands without
additions or subtractions or words or change of its apparent
grammatical sense. The tenor and the sentence of the pleadings is
required to be seen as a whole. (See Sopan vs. Assistant Charity
Commissioner, Air Supreme Court 2004 page 180)”
16. The Learned Senior Counsel for the Defendants invited our attention to
the recent decision of the Supreme Court in the case of Dahiben vs. Arvindbhai
Kalyanji Bhanusali (Gajra) dead through legal representatives and others 7, the relevant
observations are reproduced hereunder :
“23.2 The remedy under Order VII Rule 11 is an

independent and special remedy, wherein the Court is empowered to
summarily dismiss a suit at the threshold, without proceeding to
record evidence, and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be terminated on any
of the grounds contained in this provision.
23.3 The underlying object of Order VII Rule 11 (a) is that if
in a suit, no cause of action is disclosed, or the suit is barred by
limitation under Rule 11 (d), the Court would not permit the plaintiff
to unnecessarily protract the proceedings in the suit. In such a case, it
would be necessary to put an end to the sham litigation, so that further
7 (2020) 7 SCC 366, 2018(5) ALL MR 217
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judicial time is not wasted.

23.4 In Azhar Hussain v. Rajiv Gandhi this Court held that
the whole purpose of conferment of powers under this provision is to
ensure that a litigation which is meaningless, and bound to prove
abortive, should not be permitted to waste judicial time of the court, in
the following words:
“12. …The whole purpose of conferment of such
power is to ensure that a litigation which is
meaningless, and bound to prove abortive should not
be permitted to occupy the time of the Court, and
exercise the mind of the respondent. The sword of
Damocles need not be kept hanging over his head
unnecessarily without point or purpose. Even if an
ordinary civil litigation, the Court readily exercises
the power to reject a plaint, if it does not disclose any
cause of action.”
23.5 The power conferred on the court to terminate a civil

action is, however, a drastic one, and the conditions enumerated in
Order VII Rule 11 are required to be strictly adhered to.
23.6 Under Order VII Rule 11, a duty is cast on the Court
to determine whether the plaint discloses a cause of action by
scrutinizing the averments in the plaint, read in conjunction with the
documents relied upon, or whether the suit is barred by any law.”
17. In light of the aforementioned settled position, we are required to
examine the averments in the plaint in its entirety to find out the real cause of action.
What amounts to ‘cause of action’ is well settled by the Supreme Court in its various
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decisions. In this regard, we refer to the decision of the Supreme Court in the case of
A.B.C. Laminart (P) Ltd. vs. A. P. Agencies8, wherein the meaning of the expression
“cause of action” is explained as under :
“12. A cause of action means every fact, which if traversed, it would

be necessary for the plaintiff to prove in order to support his right to a
judgment of the Court. In other words, it is a bundle of facts which
taken with the law applicable to them gives the plaintiff a right to relief
against the defendant. It must include some act done by the defendant
since in the absence of such an act no cause of action can possibly
accrue. It is not limited to the actual infringement of the right sued on
but includes all the material facts on which it is founded. It does not
comprise evidence necessary to prove such facts, but every fact necessary
for the plaintiff to prove to enable him to obtain a decree. Everything
which if not proved would give the defendant a right to immediate
judgment must be part of the cause of action. But it has no relation
whatever to the defence which may be set up by the defendant nor does
it depend upon the character of the relief prayed for by the plaintiff.”
18. Relying on the decision of the Supreme Court in the case of Kasturi vs.
Iyyaperumal and other9, the Learned Senior Counsel Shri Kamdar, in support of his
contention that the Plaint discloses no cause of action against the Defendant Nos. 4 to
6 argued that in a Suit for specific performance of a contract for sale, a stranger or
third party to the contract cannot be added as a defendant in the suit. To respond to
8 (1989) 2 SCC 163

9 (2005) 6 SCC 733
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this submission, Learned Counsel Ms. Sonal submitted that the said decision has no
application in view of the peculiar facts of this case. She has relied on the decision of
the Supreme Court in the case of Sumtibai and others vs. Paras Finance Co.10, wherein
the Supreme Court has explained the decision rendered in the case of Kasturi (supra).
In its decision in Sumtibai (supra), the Supreme Court has distinguished the decision
rendered in Kasturi’s case (supra) by explaining that the said decision can only be
understood to mean that a third party cannot be impleaded in a suit for specific
performance if he has no semblance of title in the property in dispute. The Supreme
Court held that it is settled that every judgment must be governed and qualified by the
particular facts of the case in which such expressions are to be found and that a slight
difference in facts may make a lot of difference in the precedential value of a decision.
In the case at hand, though Defendant Nos. 4 to 6 were not parties to the contract /
Agreement to Sell, as per the Plaintiffs’ case, partial consideration was directly paid to
them which has been claimed by way of alternate relief. Therefore, in our view this
case being different in facts, the ratio laid down in the case of Kasturi (supra) would be
of no assistance.
19. Ms. Sonal, Learned Counsel for the Appellants, relied on Section 19(c)
of the Specific Relief Act, 1963, and submitted that Section 19(c) enables the Plaintiffs
to implead Defendant Nos. 4 to 6 in the Suit since they are claiming title / rights in the
property. In our considered opinion, the scope of a suit for specific performance of an
10 (2007) 10 SCC 82
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agreement to sell coupled with a prayer of possession, cannot be enlarged and the suit
cannot be turned into an eviction suit against a tenant. The Plaintiffs can, after
perfecting their title by obtaining a decree for specific performance, initiate
appropriate proceedings against the tenants before the appropriate forum. The
expression “under a title which might have been displaced by the defendant”, occurring in
Section 19(c) of the Specific Relief Act, 1963, must be understood as a title of a
stranger defeasible at the instance of the vendor and would not encompass Defendant
Nos. 4 to 6 who enjoy independent statutory protection against eviction. Therefore, in
our opinion, the provisions of Section 19(c) would not aid the Plaintiffs’ case.
20. Learned Senior Counsel Shri Kamdar, has vehemently argued that the
Suit is essentially one for recovery of possession against a tenant, and hence not
maintainable in the ordinary original jurisdiction of this Court. In other words, he
submitted that the Suit being for specific performance of a contract, the tenants are
not necessary parties, and hence there is no cause of action against them. He laid
emphasis on Section 33 of the Maharashtra Rent Control Act, 1999. This section
provides for particular classes of Courts to entertain and try suits or proceedings
between landlords and tenants, relating to the recovery of rent or possession.
According to him, since the Suit Property is situated in Brihanmumbai, the
particular / specified Court is the ‘Court of Small Causes, Mumbai’.
21. As opposed to the aforesaid submissions of Shri Kamdar, Ms. Sonal
SSP

submitted that there can be no dispute about the aforesaid proposition. However,
according to her, the Suit is not a suit by a landlord against a tenant for recovery of
possession. She has captioned the suit as a mere suit for possession, and not a suit by a
landlord against a tenant for recovery of possession. We are not inclined to accept this
submission. Admittedly, Defendant Nos. 4 to 6 are tenants. Essentially, the Plaintiffs
have claimed possession of a tenanted premises. Defendant Nos. 4 to 6 being tenants,
have statutory protection.
22. Notwithstanding the aforesaid, Ms. Sonal argued that though the Suit is
for specific performance against the Vendors, an alternate relief for refund of earnest
money and for damages has been claimed against Defendant Nos. 4 to 6. On this
count, she emphasized that an ordinary Civil Court has jurisdiction to entertain a
prayer for refund of the earnest amount which was directly paid to Defendant Nos. 4
to 6.
23. We shall now examine whether the Plaint contains sufficient pleadings to
establish a cause of action to claim refund of the earnest amount from Defendant Nos.
4 to 6.
24. We have closely examined the Plaint so as to ascertain whether the Plaint
discloses a cause of action against Defendants Nos. 4 to 6. On close scrutiny, we find it
relevant to quote certain pleadings from the Plaint which relate to Defendant Nos. 4 to
6. The relevant portions of the Plaint have been extracted below for ready reference : -
SSP

Paragraph 2 (At page No. 45)

“2. The relevant clauses of the said agreement are as follows:-
“2(a) ……..
(b) …….
(c) Rs. 8,00,000/- (Rupees eight lacs only) at the request of the
Vendors direct to the said tenant Messrs. Suniti Prints in order to
enable them to negotiate and acquire alternative accommodation and
towards part payment of the sum of Rs. 28 lakhs agreed to be paid to
them;
Paragraph 2(5) (At page No. 47)

….. The vendors have already entered into an agreement with the said
tenant i.e. M/s Suniti Prints for obtaining the vacant possession thereof
providing an alternate accommodation in the vicinity of the said
property or to pay a lumpsum amount of Rs. 28,00,000/- to enable the
said tenant M/s Suniti Prints to purchase for themselves an alternate
accommodation of their own choice. It will be the responsibility of the
Vendors to give vacant possession of the said portions occupied by the
said M/s. Suniti Prints.
Paragraph 2 (sub-paragraphs 6 and 7) (At page Nos. 47 and 48)

6. The purchasers shall at the request of the Vendors pay direct to
the said tenant M/s Suniti Prints the said agreed amount of Rs.
28,00,000/- for and on behalf of the Vendors out of the total purchase
price payable by the purchasers to the Vendors in respect of the sale of
the above property out of which Rs. 8 lakhs will be paid in advance as
may be requested by the Vendors and the balance against the said
tenant M/s Suniti Prints handing over the peaceful and vacant
possession of the said portions of the property in their possession and
surrendering the tenancy rights in respect thereof to the Vendors.
7. On the purchasers making a total payment of Rs. 32,05,000/-

to the Vendors either to them directly or on their behalf to the said
tenant M/s Suniti Prints but not exceeding a sum of Rs. 28,00,000/-
to the said Tenant as the Vendors shall put the purchasers in vacant
and peaceful possession of the said vacant portion of the property
SSP

occupied by M/s Suniti Prints and in constructive possession of the

portion occupied by the tenants of the chawls by attorning the said
tenants of three chawls to the purchasers.

Thereafter at the request of the 1 st Defendant the Plaintiffs paid by
cheque to the 4th Defendant the following amount:-
Amount (Rs) Date

5,00,000/- 20.05.1987
4,50,000/- 03.06.1987
3,35,000/- 15.06.1987
25,000/- 25.02.1988
13,10,000/-
and the 4th Defendants have accepted the same pursuant to the said
agreement to enable the 4th Defendant to obtain and/or acquire
alternate accommodation. As can be seen these amounts were far in
excess of the plaintiffs’ obligations under the said agreement and were
made at the 1st defendant’s request and accepted by the 4th Defendant
towards the amount due for alternate accommodation.

………..Significantly no answer was received from the 4 th Defendant
with regard to the letter addressed to it by the plaintiffs Advocate dated
14th August 1991, significantly the 4th defendant never even offered to
return the amounts received by them from the plaintiffs aggregating to
Rs. 13,10,000/- nor did they reply to the plaintiffs’ letter dated
14.09.1991.”
25. Admittedly, Defendant Nos. 4 to 6 were not parties to the contract i.e.
the Agreement to Sell. We have examined the Plaint with a view to find out whether it
contains pleadings in support of the alternate relief of refund of earnest amount. In
paragraph 2(c) of the Plaint, it is specifically pleaded that at the request of the
SSP

Vendors, the Plaintiffs were to pay Rs. 8,00,000/- to Defendant No. 4. Paragraph 2(5)
of the plaint is explanatory, which states the reason as to why the Plaintiffs were
instructed to directly pay M/s. Suniti Prints, which was not a party to the contract.
This paragraph conveys that Defendant No. 1, i.e. M/s. S. K. Trading Company
(Vendor), has already entered into an agreement with Defendant No. 4 (tenant) for
vacating the premises on a lump-sum payment of Rs. 28,00,000/-. Paragraph 2(6) of
the Plaint says that the Plaintiffs (purchasers) have to directly pay an amount of Rs.
28,00,000/- to Defendant No. 4 on behalf of the Vendors as part of the consideration,
in order to enable them to surrender the tenancy.
26. We find the pleadings in paragraph 5 of the plaint to be relevant. It is
pleaded that the Plaintiffs have paid a total sum of Rs. 13,10,000/- to Defendant No. 4,
at the request of Defendant No. 1 (Vendor). Moreover, it is pleaded that Defendant
No. 4 had accepted this amount pursuant to the Agreement to Sell, to enable them to
acquire alternate accommodation. Needless to say, the averments of the Plaint are to
be taken as they stand. It is evident that there is a specific pleading that the Plaintiffs
have directly paid an amount of Rs. 13,10,000/- to Defendant No. 4 in connection with
the Agreement to Sell.
27. The pleading in paragraph 8 of the Plaint suggests that the Plaintiffs had
corresponded with Defendant No. 4 about the transaction, however Defendant No. 4
neither replied, nor returned the amount of Rs. 13,10,000/- which it received. The
SSP

Plaintiffs’ case, that in pursuance of the contract they had paid Rs. 13,10,000/-
directly to Defendant No. 4 who refused to return the same, is clearly borne out from
this pleading. We therefore find sufficient pleadings in support of the Plaintiffs’
alternate claim of refund of the earnest amount paid to Defendant No. 4, the tenant.
28. In view of the aforesaid pleadings, we are of the considered opinion that
the Plaint discloses sufficient cause of action against Defendant Nos. 4 to 6. The
pleadings are not a mere illusion of a cause of action. The Plaintiffs have demonstrated
that they have a right to sue Defendant Nos. 4 to 6.
29. Besides the aforesaid pleadings, the reliefs claimed in the Suit also
assume significance. The same are already reproduced in paragraph 3.7 hereinabove. It
is clear from the reliefs sought by the Appellants (Original Plaintiffs), that the Suit was
principally for specific performance of contract and for possession. As noted above, we
are not concerned with the principal relief, but with the alternate reliefs claimed under
prayers (c) and (d), as reproduced above. Under prayer (c), the Plaintiffs have claimed
damages to the tune of Rs. 1,55,25,000/- as detailed in Exhibit F / G to the Plaint
(Page No. 109 of the Appeal paper book) from all the Defendants. Whether Defendant
Nos. 4 to 6 can be held liable to pay damages will depend on the merits of the case.
However, a bare reading of the Plaint conveys that damages are also claimed from
Defendants Nos. 4 to 6, which is relevant.
30. Prayer clause (d) of the Plaint is also relevant for the purposes of the
SSP

present Appeal. The Plaintiffs have specifically claimed a refund of earnest amount of
Rs. 19,25,000/-, along with interest from the Defendants. It is true that this claim has
not been bifurcated between the two sets of Defendants. However, there are specific
pleadings that the Plaintiffs have paid Rs. 6,15,000/- to the first set of Defendants
(Vendors) i.e. Defendant Nos. 1 to 3 and Rs. 13,10,000/- to the second set of
Defendants, i.e. Defendant Nos. 4 to 6. It cannot be disputed that the Plaint has to be
read as a whole. Even though there is no clear bifurcation of the earnest amount paid
to the Defendants, the pleadings are sufficient to disclose the bifurcation of amount
which were separately paid to both sets of Defendants. Certainly, the Plaintiffs have a
right to claim a refund of the earnest amount, if the principal relief is declined, since
the relief of specific performance is a discretionary one. A specific case has been made
out that at the request of the Vendors (Defendant Nos. 1 to 3) an amount of Rs.
13,10,000/- has been directly paid to the tenants (Defendant Nos. 4 to 6). In that
scenario, the claim for refund from Defendant Nos. 4 to 6 cannot be said to be illusory
or a camouflage. Thus, we do see that the Plaintiffs have pleaded sufficient cause of
action against Defendant Nos. 4 to 6 in context of the alternate claim of refund of the
earnest amount. This would warrant the rejection of an application under Order VII
Rule 11(a).
31. Though an attempt has been made to have the Suit dismissed for
misjoinder, we do not accept such submission. As held by us herein above, the Plaint
SSP

discloses sufficient cause of action against Defendant Nos. 4 to 6. In fact, Order I Rule
9 of the Code provides that there could be no dismissal of a suit on account of
misjoinder, which is converse to the case of non-joinder. Order I Rule 3 of the Code
permits the joining of all persons in a suit as defendants against whom a right to relief
arises out of the same act or transaction, whether jointly or severally, or in the
alternative. A reading of the entire Plaint as a whole discloses that as per the Plaintiffs’
case, they paid some earnest amount directly to Defendant Nos. 4 to 6 out of the same
transaction i.e. the Agreement to Sell. Therefore, the provisions of Order I Rule 3 of
the Code enable the Plaintiffs to join Defendant Nos. 4 to 6 in this Suit. In terms of
Order I Rule 5 of the Code, it shall not be necessary that every defendant shall be
interested as to all the reliefs claimed in the suit against him. This Rule is to be read
with Rule 3 above. In effect, it provides that where a suit is brought against several
defendants, the fact that every defendant is not interested in all the reliefs claimed in
the suit, does not imply a misjoinder of the defendants. On this count therefore,
Defendant Nos. 4 to 6 ‘s arguments in respect of misjoinder cannot be accepted.
32. The matter can be viewed from another angle as well. Under the scheme
of Order II Rule 2 of the Code, it is necessary that parties must claim all the reliefs as
available to them at the time of filing of the suit. Any intentional omission debars a
second suit on the same cause of action. A plaintiff is not required to file a separate
suit for other reliefs, where the other reliefs flow from the same cause of action. The
SSP

relief of specific performance and the alternative claim of refund of earnest amount
emanate from the same cause of action, and therefore a second suit for recovery of
money may be untenable if filed by the Plaintiffs against Defendant Nos. 4 to 6. This
factor has also been taken into account by us.
33. In the Impugned Order, the Learned Single Judge has observed that
payments made by an outsider to a landlord’s tenant, will not give rise to a cause of
action for possession under the guise of specific performance. It is further observed
that the relief is for possession from the tenant, and hence only the Court of Small
Causes has exclusive jurisdiction, and this statutory position cannot be by-passed.
Whilst this may be so, the Learned Single Judge has not at all considered the
Plaintiff’s alternate relief for refund of earnest amount and has therefore erred in
rejecting the Plaint under Order VII Rule 11(a), i.e. for want of cause of action. This is
the fundamental error in the Impugned Order. It was incumbent on the Learned Single
Judge to have considered the Plaint and all the prayers therein as a whole.
34. Owing to the reasons aforesaid, we see no reason to non-suit the Plaintiff
at this stage. There are sufficient averments against Defendant Nos.4 to 6 in the Plaint
disclosing cause of action and the Suit ought to continue against them.
35. In conclusion, we hold that a plaint can be rejected as a whole against
some of the defendants. We further hold that the Plaint in the present Suit discloses
sufficient cause of action against Defendant Nos. 4 to 6 in context of the Plaintiff’s
SSP

alternate claim for refund of earnest amount. The Learned Single Judge ought to have
considered the matter as a whole and ought not to have allowed the Notice of Motion.
We accordingly set aside the Impugned Order dated 14.01.2019 passed in Notice of
Motion No.2515/16 and hereby dismiss the Notice of Motion.
36. Appeal is accordingly allowed and disposed of. No order as to costs.
(VINAY JOSHI, J.) (S. J. KATHAWALLA, J.)
SSP

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1 / 29 APP-27-2020 Final Order.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

2. Jayant Gopaldas Farsswani of

2. Mrs. Santosh Prakash Mehra

2(a) Sunil Kumar Mehra of

2(b) Sunita Rajesh Bhasin,

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2(c) Madhu Pravin Kapur,

3. Kevalkumari Jagdish Mehra

Both having their address at Viegas

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ORAL JUDGMENT : ( PER S.J. KATHAWALLA & VINAY JOSHI, JJ. )

1. ADMIT. Heard finally with the consent of the Learned Counsels

appearing for the respective parties.

Respondent Nos. 1 to 3 will be referred to as Defendant Nos. 1 to 3 and Respondent

Nos. 4 to 6 will be referred to as Defendant Nos. 4 to 6.

3. The facts in brief are :

Plaintiffs for a consideration of Rs. 43,00,000/-, pursuant to which an Agreement to

Sell was executed on 07.12.1985 (“Agreement to Sell”).

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Defendant Nos. 2 and 3.

Defendant No.1 i.e. to Defendant No. 4, for acquiring alternate accommodation.

exchange for a lump-sum payment of Rs.28,00,000/-. It was agreed at the request of

Plaintiffs to Defendant No.4. Out of this amount, Rs.8,00,000/- was to be paid in

owners i.e. to Defendant Nos. 1 to 3.

3.5. The Plaintiffs have paid partial consideration of Rs.6,15,000/- to the

Vendors (Defendant Nos. 1 to 3) and at the request of the Vendors, Rs.13,10,000/-

directly to Defendant No. 4 (tenant).

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consideration, however, to no avail.

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of the Appeal paper-book), an amount of Rs. 1,55,25,000/- is claimed against the

Defendants by the Plaintiff (prayer clause ‘d’).

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i) Possession of a tenanted premises cannot be sought by an outsider who

Act, 1999 from the Small Causes Court.

landlord / tenant relations, plus now containing a Statutory jurisdictional bar.

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6. To counter the submissions made on behalf of the Plaintiffs, the Learned

entitled to statutory protection under the appropriate rent control legislation.

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maintainable in an ordinary Civil Court, in terms of Section 33 of the Maharashtra

competent jurisdiction i.e. in the Court of Small Causes, Mumbai.

of arguments. Both Learned Counsels have relied on several decisions. However, we

contentions emerge for determination:

i. Whether a plaint can be rejected against some of the Defendants; and

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against one of the defendants Axis Bank, was reversed.

9. Learned Senior Counsel Shri Kamdar for Respondent Nos. 4 to 6 by

2 (2018) 11 SCC 780

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Maharashtra and another4.

Relevant observations in this regard, are as follows:-

“17. The Constitution Bench in Union of India Vs. Raghubir

4 (2014) 16 SCC 623

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by different Division Benches that the rule has been

“19. It cannot be over-emphasised that the discipline demanded by a

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of the defendants, and we also do hold accordingly.

Motion which are reproduced hereunder :

13. Besides that, in the entire Notice of Motion, Defendant Nos. 4 to 6

that the captioned Suit is barred by any law.