Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.378 OF 2018
IN
SUIT NO.2636 OF 2018
Mrs.Mridula Vinay Rathi and others ..Plaintifs
V/s
Mr.Ram Gopal Gupta and others ..Defendants
Plaintif no.3 present
Adv. Ms.Neena Shetty for defendants with adv.Sarkhot
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 01/02/2020
ORAL ORDER
1. This notice of motion is interalia tendered by
the plaintifs for appointment of Court
Receiver in respect of room nos.7 and 3 (part),
building no.35, Ambalal Doshi Marg, Mumbai
400 001 together with all the articles and
things lying and being thereon and directing
the Court Receiver to deliver the possession of
the suit premises to the plaintif as agent of
the Court Receiver and further to restrain the
defendants from dispossessing the plaintifs.
2. The subject matter of the present notice of
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motion is room nos.7 and 3 (part), building
no.35, Ambalal Doshi Marg, Mumbai 400 001
(hereinafter referred to as ‘suit premises’ ).
3. Heard.
4. In short the case of the plaintifs is that the
plaintifs were in lawful possession of the suit
premises. The defendants obtained ex parte
order dated 28/06/2017 in execution
application no.157 of 2017 in Small Causes
Court. They broke open the lock of the suit
premises and without following due process of
law taken possession of the suit premises. On
14/07/2017 all the belongings, records,
papers, documents, fles, furniture, cash box
etc. were either broken or stolen by the
defendants or their hirelings. The plaintifs
claim that the defendants have suppressed
the order of the Hon’ble High Court and their
undertaking in the notice of motion
no.1545/1996. They would submit that the
Hon’ble High Court in writ petition no.6745 of
2005 had given direction that the orders will
be implemented only after seeking liberty
from Hon’ble High Court in suit no.1434 of
1996. The plaintifs therefore claim that they
have been dispossessed otherwise by due
process of law and therefore they have fled
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this suit alongwith accompanying notice of
motion.
5. The defendants combated the claim of the
plaintifs. The defendants contended that suit
itself is not tenable and beyond the scope of
sec.6 of the Specifc Relief Act. The execution
proceedings bearing no.157/2017 was fled by
the defendants before Small Causes Court.
The consent terms dated 23/05/1991 fled
between deceased father of defendant no.2
and plaintif no.3 by virtue of which the
possession of the suit premises was taken
through the Court bailif. The plaintifs have
fled four writ petitions challenging the order
passed by the Small Causes Court and by
order dated 13/04/2018 the Hon’ble High
Court was pleased to dismiss all the four writ
petitions with exemplary costs of Rs.1 lacs
and Rs.4 lacs to be paid by the plaintifs. The
possession is lawfully taken and therefore the
claim of the plaintif for wrongful
dispossession is not maintainable. Hence,
prayed for rejecting the notice of motion.
6. On the rival contentions of the parties,
following points arise for my determination
and fndings to it are recorded for the reasons
stated hereinafter:-
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POINTS
(i) Whether the plaintifs have made out a
prima facie case in their favour?
(ii) Whether the needle of balance of
convenience tilt in favour of plaintifs?
(iii) To whom irreparable loss would be
caused?
(iv) Whether the plaintifs have made out
case for appointment of the Court Receiver?
(v) What order?
FINDINGS
(i) In the negative
(ii) In the negative
(iii) To the defendants
(iv) In the negative
(v) As per fnal order.
REASONS
Point Nos. 1 to 4
7. At the outset it is necessary to point out that
there is chequered history of the litigation
between plaintifs and defendants. At this
juncture, it is not necessary to deal with that
aspect of earlier matters. The bone of
contention of the plaintifs is that the plaintifs
were illegally dispossessed from the suit
premises on account of demolition of suit
premises on 10/07/1995 by the defendants.
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The plaintifs have fled suit u/s. 6 of the
Specifc Relief Act bearing no.1434 of 1996
before the Hon’ble High Court and notice of
motion No.1545/1996 for reconstruction of the
suit premises.
8. Accordingly, in August 1996 the suit premises
was reconstructed and handed over to the
plaintifs by defendants vide possession
receipt dated 09/08/1996. The contention of
the plaintifs is that Hon’ble High Court on
30/09/2005 in suit no.1434 of 1996 disposed
of the notice of motion no.1545 of 1996 and
1399 of 2002. They would further submit that
in the order dated 30/09/2005, it is refected
that the defendants made a statement that
they will not interfere with use, occupation
and possession of the plaintifs over the suit
premises. They further pointed out that the
order of Hon’ble High Court in writ petition
no.6745 of 2005 dated 19/10/2005. The
relevant portion of order is reproduced as
under:-
“However, in view of the order passed by this
Court in Notice of Motion No.1545 of 1996 and
Notice of Motion no.1399 of 2002, in the event
the appeal and revision application are
decided by orders adverse to the petitioners,
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the orders will be implemented only after
seeking liberty from this Court in suit no.1434
of 1996. Petition rejected.”
9. They would submit that orders would have to
be implemented only after seeking the liberty
of the Hon’ble High Court in suit no.1434 of
1996. The plaintifs submitted that this order
was suppressed by the defendants in
execution application no.157 of 2017 fled by
defendants before the Small Causes Court.
The argument of the Ld. Counsel for the
defendants is that the said order of Small
Causes Judge in the execution application
no.157 of 2017 below Ex.22 for possession
warrant and below Ex.34 directing the present
plaintifs to remove his articles, goods
belonging and lying in the premises was
subject matter of the challenge before the
Hon’ble High Court in Writ Petition No.3818,
4105, 4106 and 4107 of 2018. The Hon’ble
High Court was pleased to dismiss all the four
writ petitions with exemplary costs with a sum
of Rs.1 lacs and Rs.4 lacs to be paid by the
plaintifs. She would submit that in view of the
order of the Hon’ble High Court, this Court
cannot give any fndings whether the order in
execution proceedings was obtained by
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suppressing the facts.
10. Admittedly the possession of the suit premises
was taken by the defendants through process
of court. Prima facie this possession cannot
be said to be possession otherwise by due
process of law. The validity and proprietary of
the order in execution proceedings issuing
possession warrant by the Court of Small
Causes cannot be the subject matter of
challenge before this Court and at this interim
stage this court cannot give any fndings on
this order. The order of appointment of Court
Receiver and restoring the possession to the
plaintif would amount to give dent or set
aside the order passed by the Small Causes
Court.
11. The defendants no doubt are in possession.
The plaintifs bang upon the order of the
Hon’ble High Court dated 19/10/2005 in writ
petition No.6745 of 2005. The relevant
portion of that order is reproduced
hereinabove shows that in the event the
appeal and revision application are decided by
orders adverse to the petitioners, the orders
will be implemented only after seeking liberty
from this Court i.e. Hon’ble High Court in suit
no.1434 of 1996. The appeal referred in the
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said order is appeal no.221/2003 and revision
is application no.32 of 1996. If the order is
minutely read, then the liberty is to be sought
for the implementation of the order, in case
above appeal and revision application are to
be decided adverse to the petitioners i.e. to
the plaintifs. Hence, at this juncture the said
argument of the plaintifs that for fling of
execution application, defendants ought to
have obtained permission from the Hon’ble
High Court does not hold good.
12. Even otherwise all these issues were raised
before the Hon’ble High Court and Hon’ble
High Court did not entertain these issues and
maintained the order of the Small Causes
Court. This Court cannot bye pass the order
of Hon’ble High Court and cannot hold that
these orders were obtained by suppressing
the material facts and the possession
delivered through process of court was illegal.
13. In a suit u/s. 6 of the Specifc Relief Act
dispossession should be without due process
of law. When defendants have taken
possession through process of Court, prima
facie it cannot be said that the possession was
taken by the defendants otherwise than due
process of law. The reliefs claimed by the
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plaintifs is of interim mandatory relief. For the
relief of interim mandatory relief of
possession, the plaintifs have to demonstrate
that the dispossession was forcible. There is
no such contingency made out in this case.
Thus, there is no strong prima facie case in
favour of the plaintifs, the needle of balance
of convenience does not tilt in favour of the
plaintifs, and the plaintifs would not sufer
any irreparable loss. On the contrary the
defendants who have received the possession
through process of Court of the suit premises
would sufer immensely and irreparably.
There is nothing to show that the property is
being damaged or waste by the defendants
which warrants for appointment of the court
receiver. No case is made out for restoration
of the possession. Hence, I answer point
nos.1 to 4 in the negative.
Point No.5
14. In view of the above discussion and
fndings to point nos.1 to 4, this notice of
motion needs no consideration. Hence, it is
expedient to pass following order:-
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ORDER
1. N/M No.378/2018 stands rejected.
2. Costs in the cause.
01/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 01/02/2020
transcribed on: 11/02/2020
Signed on: 17/02/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/02/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
01/02/2020
Judgment and order signed by P.O. 17/02/2020
Judgment/order uploaded on 18/02/2020
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