Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 722/2020 in S.C.Suit No. 1795/17. 1 Order.
MHCC010019202020
Presented on : 13-02-2020
Registered on : 13-02-2020
Decided on : 17-01-2023
Duration : 2 years, 11 months, 4 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 722 OF 2020
IN
S. C. SUIT NO. 1795 OF 2017
Mr. Alibhai Essakji Patel and two )...Plaintiffs
Versus
Mr. Chandan J. Vora )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 17th JANUARY, 2023.
Shri A. N. Nasikwala, Advocate for the plaintiffs.
Miss Dipti Nagda, Advocate for the defendant.
ORDER
1. The plaintiffs have filed the notice of motion for
appointment of the Court Receiver with direction to the Court Receiver
to take formal possession of the suit premises from the defendant by
entering into an agreement of agency with the defendants with monthly
compensation of Rs.25,000/ or any amount of compens ation as the
Court thinks fit. They also prayed for temporary injunction restraining
the defendants, their servants or anyone claiming through them from
subletting, transferring, disposing and/ or parting with possession of
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N/m No. 722/2020 in S.C.Suit No. 1795/17. 2 Order.
the suit premises to any third person and/ or creating any third party
interests in the suit premises or any part thereof. Perused notice of
motion and affidavit in reply of the defendant. I have gone through the
suit proceeding. Heard learned counsel Shri A. N. Nasikwala for the
plaintiffs and learned counsel Dipti Nagda for the defendant.
2. Case of the plaintiffs, in brief, is as under :
The plaintiffs are owners and landlords of the building
known as Hassan Manzil [Merwan Building] 10, Uranwala Street, D
ward, Mumbai – 400 007 (for short, 'the suit building'). The plaintiffs
are residing abroad in the United Kingdom and they have been
managing the said property through their duly constituted power of
attorney Mr. Yunus Ahmed Maniyar who is also fully aware and
conversant of the facts and circumstances of this case. The defendant is
a trespasser into the suit premises. The plaintiff's father and uncles
during their lifetime gave power of attorney to father of Yunus Ahmed
Maniyar i.e. late Mr. Ahmed Fakirbhai Maniyar for looking after the
affairs and management of the suit building during their lifetime.
Ahmed Maniyar was a caretaker and rent controller for several other
buildings or public properties and was given power of attorney by
various other building owners. The father and uncle of the plaintiffs
died in the year 1983. Thus, the power of attorney in favour of Ahmed
Maniyar came to an end. Mr. Ahmed Maniyar expired in the year 2009.
After the date of Mr. Ahmed Maniyar, the plaintiffs were managing
their property through their friends and acquaintances. During 2014–
15, son of Ahmed Maniyar and the younger brother of the present
power of attorney holder Yunus Ahmed Maniyar i.e. Moosa Ahmed
Maniyar was intermeddling with the properties which were managed by
their father Mr. Ahmed F. Maniyar.
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N/m No. 722/2020 in S.C.Suit No. 1795/17. 3 Order.
3. By General Power of Attorney attested before the notary on
07/07/2012 appointed, nominated and constituted Yunus Ahmed
Maniyar residing at first floor 47, Masjid Street, Bhendi Bazar, Mumbai
400 003 to do all or any of the acts, deeds and things pertaining to the
suit building as the per schedule attached to the General Power of
Attorney. Constituted Attorney Yunus Ahmed Maniyar issued public
notice in the daily newspaper Free Press Journal dated 27th March 2014
and Marathi daily newspaper dated 26th March 2014 whereby the
occupants and tenants of the suit building were informed that
nomination, constitution and appointment of the attorney of Yunus
Ahmed Maniyar and by further informing that Moosa Ahmed F.
Maniyar has been falsely claiming to be a constituted attorney of the
plaintiffs in respect of the suit building. It was further stated therein
that Moosa Ahmed F. Maniyar was never appointed by the plaintiffs as
their attorney in respect of the suit building. Therefore, Moosa Ahmed
Maniyar was not authorized to manage and/or deal with the suit
building in any manner and if any person dealing with Moosa Ahmed F.
Maniyar in any manner relating to the suit building will do so at his
own risk and any such purported transaction will not be binding upon
the plaintiffs.
4. Constituted Attorney Yunus informed the plaintiffs that the
defendant and third person have come to illegally occupy the premises
Flat No.6 on the Second Floor of the suit building (for short, 'the suit
premises'). Therefore, the plaintiffs asked them to produce relevant
papers in respect of the suit premises. The defendant stated that she has
been authorized to occupy the suit premises by Moosa Ahmed Maniyar
claiming to be caretaker and in management of the suit property. The
defendant could not produce any document. Constituted Attorney
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N/m No. 722/2020 in S.C.Suit No. 1795/17. 4 Order.
Yunus had not been keeping good health and he was unable to pursue
his daytoday activities during 201415. The defendant did not vacate
the suit premises. On the contrary, letter dated 12/04/2016 was sent to
create false record. The plaintiff issued legal notice dated 07/05/2016
through their advocate informing the defendant and occupants in the
building that Yunus is nominated as Power of Attorney. The defendant
sent reply dated 20/05/2016 by contending that rent of the suit
premises is paid to the landlord. As the defendant continued to occupy
the suit premises, the plaintiff filed the suit and also taken out present
notice of motion with above referred prayers.
5. The defendant filed affidavit in reply and she has relied
upon contents in written statement (Exh.6). She has come up with
following case :
No identify proof of the plaintiffs like passport is annexed
with Power of Attorney dated 07/07/2012 and it is a shame and bogus
document. Power of Attorney is not validly executed and notarized as
per a Apostille Notary as per the Apostille Treaty. The plaintiffs are not
entitled to file a suit through their Power of Attorney without execution
of a valid Power of Attorney. No cause of action is set out in the plaint.
Suit is filed beyond the period of limitation.
6. The defendant is a bonafide tenant in respect of the suit
premises since June1996. Haji Hasan Ismail Rawat and Haji
Mohammad Saleh Lambat are owners and landlords of the suit
building. The defendant is having rent receipts issued by the said
landlords in respect of the suit premises for the month of September
1996, June2002, October2008 and April2010. Electricity bills in
respect of the suit premises for the month of April1999 to June1999
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N/m No. 722/2020 in S.C.Suit No. 1795/17. 5 Order.
are annexed with the written statement. The landlords had authorized
and appointed Ahmed Maniyar as the rent collector and the caretaker.
Ahmed Maniyar was in complete charge and management of the suit
building. He was issuing rent receipts in the name of the landlord ever
since June1996. The defendant was in legal occupation of the suit
premises.
7. The defendant has denied that Yunus is duly Constituted
Attorney of the plaintiffs and he is fully aware and conversant with facts
and circumstances of this case. The defendant is not aware of public
notices referred in para 6 of the plaint. She has denied to be in illegal
occupation of the suit premises. The suit premises is only place of
residence of the defendant. She has been paying monthly rent in respect
of the suit premises till 2014 after which the plaintiffs or any one on
their behalf have refused to accept rent intentionally to file this suit.
The plaintiffs have approached the Court with unclean hands. Balance
of convenience is in her favour and no case is made out by the plaintiffs.
8. The suit is not properly valued as per Section 6(v) of the
Maharashtra Court Fees Act as per market value. The cause of action to
file the suit arose in the year 2015 and May2016 when the defendant
denied to comply legal notice dated 07/05/2016. This Court has no
jurisdiction to try the suit under Section 41 of the Presidency Small
Causes Court Act, 1882. Suit is barred by limitation. The plaintiffs have
acquiesced and confirmed acts of Ahmed Maniyar after death of their
father and uncle in 1983. Admittedly, Ahmed Maniyar expired in 2009.
The plaintiffs have not taken any step to revoke or limit or amend the
powers given to Ahmed Maniyar. The plaintiffs have appropriated the
rent amount paid by the defendant. Doctrine of estoppal as per Section
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N/m No. 722/2020 in S.C.Suit No. 1795/17. 6 Order.
237 of the Indian Contract Act is applicable. The plaintiffs have not
produced death certificate of the landlords or any proof of ownership of
the suit building. No Probate or Letter of Administration is obtained by
the plaintiffs. The plaintiffs are not competent to file the present suit.
9. Learned counsel A.N.Nasikwala for the plaintiffs and
learned counsel Smt. Dipti Nagda for the defendant advanced
arguments as per their respective pleadings in the plaint and written
statement.
REASONS
10. On perusal of the record and rival pleadings, it appears that
the defendant has specifically pleaded in para 5 of written statement
that Haji Hasan Ismail Rawat and Haji Mohammad Saleh Lambat are
the owners and the landlords of the suit building. She further relied
upon rent receipts to claim tenancy rights in the suit premises since
June1996. Original rent collector appointed by the landlords died in
the year 2009. Landlords had already died in the year 1983. The
plaintiffs executed Power of Attorney in favour of Yunus for the first
time on 07/07/2012. The plaintiffs have not cleared the picture
regarding management of the suit building during 1983 to 2012. They
have just pleaded that they were managing their properties through
their friends and acquaintances. The defendant has also relied upon
electricity bills in respect of the suit premises issued in July1999. The
defendant has avoided to clarify the aspect of the person who had
inducted her in the suit premises as a tenant. Pleading of the defendant
on crucial aspect of entry in the suit premises is vague. The plaintiffs
have prima facie case to term possession of the defendant over the suit
premises as trespasser. Even then, longstanding possession of the
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defendant should not be disturbed. The plaintiffs have also not claimed
possession of the suit premises at interim stage of the matter.
11. The defendant has come up with the case that the plaintiffs
have appropriated the rent amount paid by the defendant and they are
not accepting the rent in order to file the present suit. She has also
stated about payment of monthly rent till 2014. In short, the defendant
has claimed to be the tenant of the suit premises. The plaintiffs sought
declaration that the defendant is trespasser of the suit premises. As the
plaintiffs are not admitting the defendant as their tenant, the suit is
maintainable before this Court. Principles of prima facie case and
balance of convenience are in favour of the plaintiffs. As possession of
the defendant is not disturbed at this stage, there is nothing to cause
prejudice to the defendant. If the defendant is allowed to occupy the
suit premises without paying rent or compensation amount, greater
hardship will be caused to the plaintiffs. In order to meet ends of
justice, the defendant can be directed to deposit monthly compensation
of Rs.25,000/ in the Court. For this purpose, appointment of the Court
Receiver is not required. The defendant can also be restrained from
creating third party interest in the suit premises. Hence, I pass the
following order :
ORDER
1. Notice of Motion No. 722/2020 is made absolute in terms
of prayer clause (a) to the extent of direction to the
defendant to deposit monthly compensation of Rs.25,000/
in this Court from the date of this order till further
directions and it is made absolute regarding relief of
temporary injunction as prayed in prayer clause (b).
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N/m No. 722/2020 in S.C.Suit No. 1795/17. 8 Order.
2. Proceeding of N/m No. 722/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 17/01/2023. Mumbai.
1. Dictated online on : 17/01/2023.
2. Checked and Signed on : 17/01/2023.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17/01/2023. 5.33 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 17/01/2023.
Judgment/Order signed by P.O. on 17/01/2023.
Judgment/Order uploaded on 17/01/2023.
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