Jitendra B. Mehta v. Mr. Mansukhlal v. Senghani and Anr

ORDER The application vide Exh.66 is hereby rejected.

¶7Holding as above, the Trial Court rejected the application of the Petitioner to recast the issues.

¶8I have heard Mr.Joshi, learned counsel for the Petitioner and Mr.Ankit Rajput, learned counsel for the Respondents and with their able assistance I have perused the papers and proceedings and considered the 6 of 10 7 23 wp 14414-22-c.doc rival contentions.

¶9The principal prayers a(1), a-2 and a-3 in the said suit are usefully quoted as under:- a(1). This Honourable Court be pleased to declare the Plaintiff is the tenant in respect of the suit premises i.e. flat No.14, flat No.14, comprising of 1 Bedroom Hall Kitchen, situated on the first floor of Mayur Pankh Building, Khokhani Lane, Ghatkopar (East), Mumbai-400 077. (a-2). This Honourable Court be pleased to pass Mandatory orders directing the Defendants to make provision for permanent alternate accommodation of equivalent size in lieu of the suit premises in the proposed building to be constructed and further direction to hand over the same to the Plaintiff forthwith upon its completion. (a-3). The Defendants be restrained by an order and Permanent injunction of this Honourable Court from dealing with disposing off alienating or creating their party rights in respect of the suit building, as mentioned in prayer (a) here above, without complying with the statutory liability of providing alternate accommodation to the Plaintiff.

¶10Mr.Joshi has kindly tendered before this court the table containing the issues framed earlier and the issues proposed. A perusal of the same clearly suggests that it is not necessary to reframe / recast the six issues already framed on 11th February, 2019 and on 6th November, 2020 which cover the three principal prayers quoted above. The other prayers are 7 of 10 8 23 wp 14414-22-c.doc consequential or interim. The main prayer as can be seen from the Plaint is to declare that Petitioner is the tenant in respect of suit premises and the suit is filed in the Small Causes Court for such declaration as R.A.D. Suit. Order XIV Rule 1 of the Code of Civil Procedure 1908 ("CPC") clearly provides that issues have to be framed on the basis of material propositions of fact and law which is affirmed by one party and denied by other. The first proposed issue is already there as issue No.1 framed on 11th February 2019. Proposed issue No.2 is covered by issue No.3 framed on 11th February 2019. Proposed issues No.3 and 12 are covered by issue No.2 framed on 11th February 2019. Proposed issues No.4, 5, 6, 8, 9 and 10 are not germane to the material controversy and do not in my view constitute material propositions affirmed by one party and denied by the other. Even otherwise framing these issues may also change the nature of the suit for which the Small Causes Court may not have jurisdiction. Proposed Issue No.7 is already issue No.4 of the issues framed on 11th February 2019. With respect to the proposed issue of jurisdiction at item 11, paragraph No.5 of the impugned order clearly takes care of the same as the Court has held that the Small Causes Court has jurisdiction to entertain the suit and therefore, even that proposal is not in issue. I am therefore in agreement with the views of the Tribunal that not every fact 8 of 10 9 23 wp 14414-22-c.doc in the plaint that is denied becomes an issue to be framed.

¶11The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined. The real dispute between the parties is determined, the area of conflict is narrowed. The correct decision of civil litigation largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the CPC dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by other. The issues are to be framed and recorded on which the decision of the case shall depend. The Court is to exert itself so as to frame sufficiently expressive issues which in my view the Trial Court has done. The Trial Court has therefore correctly exercised its jurisdiction by rejecting the application for recasting the issues below Exhibit-66.

¶12I therefore do not find any error or illegality or perversity in the order dated 19th August, 2022 passed by the Small Causes Court below Exhibit 66 in the said R.A.D. Suit No.804 of 2010. The order does not call for any interference. 9 of 10 10 23 wp 14414-22-c.doc

¶13The Petition accordingly deserves to be dismissed and it is hereby dismissed. Parties to bear their own costs. Let the Trial of the said suit proceed as per schedule. (ABHAY AHUJA, J.) 10 of 10

1 23 wp 14414-22-c.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.14414 OF 2022 Mr. Jitendra B. Mehta … Petitioner Vs. Mr. Mansukhlal V . Senghani and ors. … Respondents ------- Mr. Bipin J. Joshi with Ms.Sakshi Agarwal, Advocates for the Petitioner. Mr.Ankit Rajput i/by Mr.Rutvij Bhatt, Advocates for the Respondents No.1 to 3. ------- CORAM : ABHAY AHUJA, J. DATE : 21 JULY, 2023. ORAL JUDGMENT. : 1. Heard learned counsel for the parties. 2. This petition filed under Article 227 of the Constitution of India impugns an order dated 19th August, 2022 below Ex.66 in pending R.A.D. Suit No.804 of 2010 (the "said suit") whereby the application filed by the petitioner for recasting of issues has been rejected. 3. The Petitioner had earlier filed the said suit for declaration of tenancy before the Small Causes Court, at Bombay in respect of the suit 1 of 10 2 23 wp 14414-22-c.doc premises being Flat No.14, First floor, Mayur Pankh, Khokhani Lane, Ghatkopar (East), Mumbai 400 077 (the "said/suit premises"). The defendants/landlords, the Respondent had filed written statement thereafter and the issues were framed on 11th February, 2019. Amendments were carried out to the plaint and the defendants had also filed their additional written statement. Thereafter, additional issues were framed on 6th November, 2020. The issues framed on 11th February, 2019 and on 6th November, 2020 are set out as under: "Issues framed on 11.02.2019 1. Whether the plaintiff proves that Defendant No.1 is the owner and Nirmalaben J. Mehta was the tenant in respect of the suit premises ? 2. Whether the Plaintiff proves that defendant No.2 and 3 are the unlawful occupants of the suit premises ? 3. Whether the Plaintiff is entitled for declaration as prayed ? 4. Whether the Plaintiff is entitled for possession of the suit premises as prayed ? 5. What order and decree ? Additional issues framed on 06.11.2020 1. Whether the Plaintiff is entitled for the relief for mandatory injunction as prayed? 2. Whether the Plaintiff is entitled for the relief of 2 of 10 3 23 wp 14414-22-c.doc perpetual injunction as prayed?" 4. In the application below Exhibit 66 the Petitioner sought recasting of the issues as under :- "Issues Proposed 1. Whether the Plaintiff proves that Nirmalaben was the monthly tenant to the Defendant No.1 in respect of the suit premises? 2. Whether the Plaintiff proves that he is entitled to tenancy rights in respect of the suit premises? 3. Whether the Plaintiff proves that the Defendant No.1 has unlawfully put the Defendant Nos.2 and 3 in possession of the suit premises? 4. Whether the Defendant No.1 proves that Mayur Pankh building is declared as dilapidated in accordance with the provisions of Section 354 of the Bombay Municipal Corporation Act, 1888 ? 5. Whether the building was demolished by the Defendant No.1, pursuant to the notice under Section 354 of the Bombay Municipal Corporation Act ? 6. Whether the Defendants prove that the Plaintiff has no right in the suit premises due to demolition of the Mayur Pankh building ? 7. Whether the Plaintiff is entitled to the possession of the suit premises ? 8. Whether the Defendant No.1 is liable to commence the construction of the building within 1 year from the date of demolition of the said dilapidated Mayur Pankh building ? 3 of 10 4 23 wp 14414-22-c.doc 9. Whether the Defendants are liable to complete the construction, within 3 years from the date of demolition of the building ? 10. Whether the Defendant No.1 is liable to handover possession of the newly constructed premises in the new construction to the Plaintiff, and allot area equivalent to the then existing suit premises, in the newly constructed building ? 11. Whether the Defendants prove that this Honourable Court has no jurisdiction to try and entertain the suit ? 12. Whether the defendant No.1 proves that the Defendants No.2 and 3 are lawful tenants ? 13. What order ?" 5. In the Trial Court the applic