Joaquim Herlander Coelho Pereira & Ors vs Blaze Fernandes

Leave granted.

This appeal takes exception to the judgment and order dated 12th October, 2018 passed by the High Court of Bombay at Goa in Civil Revision No.25/2018 whereby, the application filed by respondent for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure (for short, 'C.P.C.') came to be allowed by the High Court, whilst reversing the decision of the Civil Judge, Junior Division, Panaji, Goa dated 8th March, 2018 disallowing the same.

The appellant(s) filed suit against the respondent clearly asserting that the respondent was in occupation of the suit premises as a trespasser and the respondent had no legal right whatsoever. The tenancy in respect of shop No.1 in favour of Late Joao Mariano Fernandes vide lease deed dated 12th June, 1970 was initially for a monthly rent of Rs.50/- and later on increased to Rs.150/-, had come to an end and was not renewed during the life time of Late Joao Mariano Fernandes. He nevertheless continued to occupy the suit premises as a statutory tenant. After his death on 14.12.2011, his widow, Maria Natvidae Divina Francisca De'Souza Fernandes, continued to remain in possession until 21.10.2013. It is clearly asserted in the plaint that there is no express provision in the Goa Building (Lease, Rent Eviction) Control Act, 1968 (hereinafter referred to as 'the Goa Rent Act') envisaging inheritance of the statutory tenancy right, assuming that the possession by the widow of a statutory tenant, Maria Natvidae Divina Francisca De'Souza Fernandes, was protected by the provisions of the Act. The expression 'tenant' in Section 2(p) of the Goa Rent Act will not come to the aid of the respondent who was not in possession or occupation of the shop in his own rights but now claims to have inherited tenancy interest therein after the demise of Maria Natvidae Divina Francisca De'Souza Fernandes.

Having said this, the plaint proceeds to assert that the occupation of the respondent-defendant in the suit shop is nothing but that of a trespasser and for which reason the jurisdiction of the Civil Court had to be invoked by the appellants.

This being the tenor of the plaint and the cause of action based on the assertion that the respondent-defendant is a trespasser, the High Court could not have assumed at this stage that the Civil Court has had no jurisdiction. Whether the respondent would inherit rights in the suit property by virtue of being the heir and legal representative of the original tenant is a matter that can be pursued by the respondent at the appropriate stage, but cannot be the basis to reject the plaint under Order VII Rule 11 C.P.C.

In our opinion, the trial Court was right in rejecting the stated application filed by the respondent. Notably, the High Court was conscious of the fact that the application under Order VII Rule 11 C.P.C. must proceed on the basis of the averments in the plaint but yet proceeded to analyze the matter in the context of the stand taken by the respondent, which stand, as aforesaid, can be considered at the appropriate stage in accordance with law.

Accordingly, this appeal succeeds. The impugned judgment and order is set aside and the application filed by the respondent under Order VII Rule 11 C.P.C. stands rejected and the order of the trial Court passed on the said application is restored.

We make it clear that all contentions available to the respondent are left open to be decided at the appropriate stage, including the question of jurisdiction of the Civil Court.

The appeal is accordingly allowed.

No order as to costs. All pending applications are also disposed of.