Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 740-19 in L.C.SUIT no.2112-16
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
COMMON ORDER
ON
APPLICATION EXH.10
AND
NOTICE OF MOTION NO. 740 OF 2019
(CNR no. MHCC010018962019)
IN
L.C. SUIT NO. 2112 OF 2016
(CNR no. MHCC010091842016)
Mohammed Latif Janmohammed Khan ]..Plaintiff
Versus
Ismail Jahangir Saudaggar ]... Defendant
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 16th March, 2019.
Mr. D. A. Barot, advocate for plaintiff.
Mr. Charanjeet Chanderpal with Ms. Pradgya Chandra, advocate for
defendant.
ORDER
1. The plaintiff has applied for direction to the Receiver to
hand over the keys of the suit premises to the plaintiff and to appoint
the plaintiff as an agent of the Receiver in furtherance of the order
dated 12.04.2018.
2. On the other hand, the defendant has taken out the motion
seeking stay to the proceedings in the matter unless S.L.P. Diary no.
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2 NM no. 740-19 in L.C.SUIT no.2112-16
4331 of 2019 is disposed off by the Hon'ble Supreme Court along with
Caveat Application no. 11443 of 2018 as both the matters were likely to
be heard by the Hon'ble Supreme Court. The defendant also seeks to
reject the application (Exhibit 10) contending that the specifications of
the suit premises are disputed and it should not be handed over to the
plaintiff.
3. Heard, respective advocates at length. The learned
advocate for the plaintiff submitted that the defendant has not raised
any dispute in written statement so far as, identity or specifications of
the suit premises are concerned. The defendant is only obstructing the
order passed by the Court by making all possible attempts to avoid
handing over possession of the suit premises to the plaintiff. Even, he
has given threats to the plaintiff and the Court Receiver.
4. On the other hand, the learned advocate for the defendant
submitted that the order of appointment of Receiver passed by the City
Civil Court has been merged in the order passed by the Hon'ble High
Court while discharging the Court Receiver, High Court Bombay and
therefore, the Receiver appointed by City Civil Court can not hand over
the possession to the plaintiff etc. She placed reliance on the ratio in the
case of Delhi Development Authority vs. Karmadeep Finance &
Investment (I) Pvt. Ltd. reported in LAWS (S.C.)2019265 to the
effect that the leasehold rights have been merged in the lessor since
when lessor's interest coalesces with lessee's interest, the principle of
merger comes into play. She has further relied on the similar ratio in
the case of V2 Retail Ltd. vs. Regional Provident Fund Commissioner
reported in LAWS (DLH)2019247.
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5. She further relied on the ratio in the case of State of U.P.
vs. Noopur Srivastav reported in LAWS (ALL)2019152 to the effect
that the judgment which has been set aside would not be in existence
and a judgment by which the said judgment is set aside would be
operative decision in the case. According to principle of merger, original
decision merges in appellate decision. The logic underlying the doctrine
of merger is that there can not be more than one decree or order
governing the same subject matter at a given point of time.
6. The plaintiff has instituted the suit for declaration that he is
the owner of the suit premises namely office no. 1 admeasuring 125
sq.ft., plot no. 16, ground floor, Mahim Reti Bander, Mahim, Mumbai16
with a further declaration that the defendant is a trespasser and further
for recovery of possession of the suit premises and mesne profits.
7. The Hon'ble Principal Judge, City Civil Court, by order
dated 12.04.2018 passed on Notice of Motion no. 3604 of 2016
appointed Receiver i.e. the Incharge Registrar of this Court to take
possession of the suit premises from the defendant and to appoint the
plaintiff as his agent until further orders. It contemplates that the
interim possession of the suit premises should be handed over to the
plaintiff as an agent of Receiver though the suit premise would be the
custodia legis. An A.O. no. 308 of 2018 preferred against said order was
dismissed by the Hon'ble High Court by order dated 03.12.2018.
Further Review Petition (St.) no.1029 of 2019 was also dismissed by
the Hon'ble High Court by order dated 15.01.2019 and Speaking to
Minutes dated 23.01.2019. It was specifically directed in the said order
that the Court Receiver, High Court Bombay was discharged with
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direction to hand over the possession of the suit premises to the
Receiver i.e. the Incharge Registrar of City Civil Court, Mumbai. Had it
been the case that the Hon'ble High Court Bombay intended the
discharge of the Receiver, there was no occasion to direct the Court
Receiver High Court Bombay to hand over possession of the suit
premises to the Receiver appointed by the City Civil Court.
8. Consequently, the Court Receiver, High Court Bombay
handed over the possession of the suit premises to the Incharge
Registrar of City Civil Court, Mumbai on 11.02.2019. He prepared
inventory and took the suit premises in his possession. Thereafter, the
application Exh.10 and Notice of Motion no. 740 of 2019 are moved by
the respective parties.
9. The learned advocate for the defendant fairly conceded
that the Hon'ble Supreme Court by order dated 05.03.2019 passed on
the Petition for Special leave to appeal (C)no.5688 of 2019 dismissed
the Special Leave Petition. She tried to submit that the Hon'ble Supreme
Court made some observation orally at the time of passing order dated
05.03.2019. However, on perusal of the copy of that order no such
observations form part of the order and therefore, there is no substance
in the submissions made on behalf of the defendant. Thus, at this stage
the defendant has not placed anything on record to show that the order
dated 12.04.2018 is either stayed or set aside or varied etc.
10. So far as, the submission regarding the doctrine of merger
made by the learned advocate for the defendant is concerned, it is a fact
that as per the interim directions given by the Hon'ble High Court, the
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Court Receiver High Court, Bombay took possession of the suit premises
and further, the Hon'ble High Court by order dated 23.01.2019
discharged the Court Receiver of High Court Bombay with a direction to
hand over possession of the suit premises to the Receiver of the City
Civil Court, Mumbai, and therefore, by no stretch of imagination it can
be said that by order of discharge of the Court Receiver, High Court
Bombay, the Receiver appointed by the City Civil Court was also
discharged or the order dated 12.04.2018 appointing the Receiver by
the City Civil Court merged in the aforesaid order. Importantly, the
Hon'ble High Court or the Hon'ble Supreme Court has never set aside
the order dated 12.04.2018.
11. Therefore, the submissions made at the instructions of the
defendant are misconceived and not at all stand to the touch stone of
Law and therefore, I do not find any substance in the same. The
defendant is required to be saddle with costs. In the circumstances, in
view of dismissal of the Special Leave Petition, the Notice of Motion no.
740 of 2019 has become infructous, and requires to be dismissed with
the costs. Consequently, in furtherance of the order dated 12.04.2018, it
is just and proper to direct the Receiver appointed by the City Civil
Court to comply with the said order and appoint the plaintiff as an
agent of the Receiver in respect of the suit premises. Mere appointment
of the plaintiff as an agent of the Receiver would be meaningless unless
and until the possession and occupation thereof would be given to the
plaintiff. Therefore, it is necessary to handover keys of the suit premises
to the plaintiff as an agent of Receiver on usual terms and conditions
and executing an agency agreement. Therefore, the following order is
passed:
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6 NM no. 740-19 in L.C.SUIT no.2112-16
ORDER
1. The Notice of Motion no. 740 of 2019 is dismissed with costs.
2. Application Exhibit10 is allowed with costs by directing the
Receiver i.e. Incharge Registrar of City Civil Court, Mumbai to
appoint the plaintiff as his agent in respect of the suit premises
until further orders and hand over the keys of the suit premises to
the plaintiff forthwith upon execution of an agency agreement
and submit report accordingly returnable on 25.03.2019.
Sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 16.03.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 16.03.2019
Checked by HHJ on : 18.03.2019
Signed by HHJ on : 18.03.2019
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7 NM no. 740-19 in L.C.SUIT no.2112-16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 18.03.2019 at 3.00 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
16/03/2019
JUDGMENT/ORDER signed by
P.O. on
18/03/2019
JUDGMENT/ORDER uploaded
on
18/03/2019
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