Final Order 4

Order Details: Copy of Judgment
Pdf Text: Com.Suit No.916 of 2021 Mehrunnisa & Ors. vs. M/s. S. Savla & Ors. Judgment 1 of 17
MHCC010035532019 Suit Lodged on : 28.03.2019
Suit Admitted on : 26.07.2019
Suit Decided on : 14.08.2026
Duration : 07 Y : 04 M : 17 D
Exhibit : 54
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 83 – Summary Court
COMMERCIAL SUMMARY SUIT No. 916 OF 2021
1. Mrs. Mehrunnisa Qasim Shaikh,
2. Mr. Aslam Qasim Shaikh,
3. Mr. Mustaqeem Qasim Shaikh,
No.1 to 3, Adult, Muslim, Indian Inhabitant
through their CA No.4 Residing at Flat No.412,
F Wing, J. J. Colony, K. C. Marg, Near MTNL,
Bandra (W), Mumbai – 400050.
4. Ms. Sumaiyya Qasim Shaikh @
Mrs. Sumaiyya Arif Patel,
Adult, Muslim, Indian Inhabitant,
Occ. Housemaker, Plot No.303, C, Wing, Maklai
park, Bazar Road, Bandra (W), Mumbai –
400050.
(Deleted since deceased.)
… Plaintiffs.
Versus
1. M/s. S. Savla Constructions Private Ltd.
Having registered office at C-101, Innova
Marathon Nexgen, Off. G. K. Marg,
Opp. Peninsula Corporate Park, Lower Parel
(W), Mumbai – 400013.
2. Mr. Shailesh Mulchand Savla
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3. Mr. Paresh Mulchand Savla
Age : Not known, Both Directors of No.1,
Having address at C-101, Innova Marathon
Nexgen, Off. G. K. Marg, Opp. Peninsula
Corporate Park, Lower Parel (W),
Mumbai – 400013.
4. M/s. Balaji Corporation Private Limited
Having registered office at Plot No.1, Sewree
Wadala Estate, C. S. No.1/58 of Dadar Naigaon,
Katrak Road, Wadala, Mumbai – 400031.
5. Mr. Pankaj Dhanji Goshar,
Age : not known,
6. Mr. Sukanraj Sagarmal Bohra,
Both No.5 and 6 Director of No.4.
Having office at Plot No.1, Sewree Wadala
Estate, C. S. No.1/58 of Dadar Naigaon, Katrak
Road, Wadala, Mumbai – 400031.
… Defendants.
Appearances :
Plaintiffs : Adv. Pawan Pandey a/w. Adv. Vivek Gupta.
Defendant 1 to 3 : None after no instruction pursis.
Defendant 4 & 5 : None after no instruction pursis.
Defendant 6 : Ex Parte
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.83.
DATE : 14.08.2026.
***************************************************************
ORDER
(Delivered on this 14th day of August, 2026)
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1. Plaintiffs sued defendants and prayed for a declaration that
that agreement dated 18.12.2006 is valid and binding. Plaintiffs are
seeking possession of shop No.90 with relief of perpetual injunction.
Plaintiffs also claimed monetary relief i.e. direction to defendants to pay
Rs.1,52,000/-.
Facts giving rise to the dispute are as under:
2. One Mr. Qasim Usman Shaikh was monthly tenant of Ali Haji
Hussain in respect of Gala No.29 in Central building located at New
Survey No.2158 and Cadastral Survey No.1/583, Dadar, Naigaum,
Division Wadala, Mumbai - 400 031. Mr. Qasim was provided alternate
shop No.90 admeasuring 10 x 10 feet in the Central Building known as
market building when the property as mentioned above was
redeveloped.
3. Mr. Qasim was carrying on business in shop No. 90. One Mr.
Jamshed Ali Syed entered into triparty agreement with landlord and
tenants to redevelop property on new Survey No.2158 and Cadastral
Survey No.1/583. However, Mr. Jamshed was unable to redevelop said
property. So, he assigned development rights to defendant Nos.1 to 3.
Defendant No. 2 and 3 are Directors of defendant No.1.
4. Defendant Nos.1 to 3 redeveloped property and said shop
No.90 was allotted to Mr. Qasim in lieu of his old gala on ownership
basis. Defendant No.1 approached Mr. Qasim with a request that he
should hand over possession of his shop for erecting columns for
residential tower which was to be constructed exactly near his shop
(Mr.Qasim’s shop). Accordingly, agreement dated 18.12.2006 was
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executed between defendant No.1 and Mr. Qasim. Defendants promised
to reconstruct shop admeasuring 10 x 10 feet and they also promised to
pay Rs.5,000/- p.m. as compensation to Mr Qasim.
5. However, piling was not completed within six months as
agreed. But defendant No.1 continued to pay monthly compensation to
Mr. Qasim. Said compensation was enhanced by by 10% every year.
For erecting pillars/columns of adjoining residential tower, shop was
demolished and again it was reconstructed. However, as agreed
possession was not given to Mr. Qasim for a reason that it would be
dangerous to work in a shop when construction work is going on.
6. Thereafter, defendant Nos.4 to 6 have joined defendant Nos.1
to 3. in project. Defendant No.4 started paying rent Rs.8,000/- to Mr.
Qasim. Under garb of handing over possession soon, defendant No.4
stopped making payment of compensation from September, 2017.
Though construction was completed but possession of shop No.90 was
not handed over to Mr. Qasim. From 01.09.2017 monthly compensation
was not paid.
7. On this backdrop, on 06.02.2018, Mr. Qasim passed away. As
per plaintiffs, they are legal heirs of late Mr. Qasim. It is contended that
disputed shop is the only source of their income. So, legal notice was
sent to defendants on 16.07.2018. Defendants assured plaintiffs that
possession of shop will be handed over soon but it was not done.
8. Therefore, plaintiff sued defendants and they have claimed
various reliefs including declaration, perpetual injunction and monetary
relief.
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9. During pendency of suit, plaintiff No.1 Mehrunnisa Qasim
Shaikh passed away on 23.03.2022. So, her name stands deleted from
plaint. Chamber Summons No.151/2021 moved by plaintiffs was
allowed on 20.03.2021 and amendment in the plaint was carried out.
Initially, plaintiff referred date of agreement as 25.09.2006 and it was
corrected as 18.12.2006.
10. Defendant Nos.1 to 3 appeared and filed written statement
vide Exh.09. They contended that a false suit is filed by plaintiff. It is
submitted that defendant No.1 conveyed all rights in respect of
redeveloped property and shop No.90 to defendant No.4. Since then
defendant No.4 is in possession of entire property. As per these
defendants, agreement dated 25.09.2006 is a forged and fabricated
document. Defendants denied that Mr. Qasim was ever a tenant either
of Gala No.29 or owner of shop No.90.
11. Defendant Nos. 1 to 3 submits that though Mr. Qasim was not
a tenant in respect of Gala No.29 but he raised a false claim only with
intent to delay redevelopment work of building. Defendants orally
agreed to pay him some compensation so that he will not unnecessarily
create trouble in redevelopment project. Defendant Nos.1 to 3 are not
related with the property any more. They further contended that suit is
not filed within limitation and it may be dismissed.
12. Defendant Nos. 4 and 5 filed written statement vide Exh.08.
As per these defendants, suit is filed without their being any valid cause
of action, suit is not filed within limitation and plaintiffs have not
approached the Court with clean hands. Defendant Nos. 4 and 5
submits that they are not connected with agreement dated 18.12.2006.
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Defendant No.1 initially informed these defendants that false tenancy
claim is raised by Mr. Qasim. Plaintiffs have not placed on record any
document to show that Mr. Qasim was a legitimate tenant in respect of
Gala No.29. As per so called agreement dated 18.12.2006 possession
was to be given within six months. After long lapse of time, plaintiffs
i.e. so called legal heirs of Mr. Qasim have filed this suit which is not
within limitation.
13. These defendants also contended that plaintiffs have not
placed on record description of suit property as required under O. VII,
R. 3 a/w O.XX, R.9 of the Civil Procedure Code( the Code for short).
Denying entire claim, defendant Nos.4 and 5 submits that suit may be
dismissed.
14. Defendant No.6 was duly served with writ of summons but he
did not appear. So as per order dated 18.02.2020, suit proceeded ex-
parte against him.
15. As per order on Notice of Motion 4918/2009 dated
14.03.2022, an interim order was passed by the then Presiding Officer
directing defendant Nos.4 to 6 to pay interim monthly compensation of
Rs.8,000/- to plaintiffs till further order.
16. That order was challenged before Hon’ble Bombay High Court
in Commercial Appeal From Order No.06/2022. As per order dated
13.08.2025, Hon’ble Bombay High Court directed defendant Nos. 4 to 6
to pay monthly compensation of Rs.8,000/- till disposal of this suit and
directed Presiding Officer of Court Room No.14 to dispose of this suit
within a period of one year i.e. on or before 13.08.2026.
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17. The then Presiding Officer of Court Room No.32 framed as
many as 13 issues vide Exh.17 on 11.09.2023. Matter was thereafter
transferred to Court Room No.14 where additional issue was framed
vide Exh.17A on 18.01.2024 and on same day, order of Case
Management Hearing was passed.
18. Thus, this suit was pending in Court room No.14 i.e.
Commercial Court, Mazgaon. However, that Court was vacant for a long
time. Therefore, this suit was transferred to Court Room No.31 when I
was presiding over that Court. Suit was transferred to Court Room
No.31 vide order of Principal Judge dated 27.04.2026 based on
submission of A.R. of Board Department. As assignments are changed
on 08.06.2026, as per office order of Principal Judge, suit is again
transferred from Court Room No.31 to my new assignment i.e. Court
Room No.83.
19. In order to prove their case plaintiff No.04 Mrs. Sumaiyya
examined herself at Exh.24. Plaintiffs relied on various documents vide
Exh.29 to 45 which primarily include Power of Attorney, rent receipts,
shop and establishment license with renewal, notices about electricity
bill, original bank passbooks, death certificates and copy of notice
Dt.16.07.2018. Plaintiff closed evidence vide pursis Exh.50.
20. Adv for defendant No.04 and 05 filed discharge pursis Exh.27
on 10.06.2026. Advocate for defendant No.01 to 03 filed discharge
pursis Exh.47 on 07.07.2026. This Court issued court motion notices to
defendant No.01 to 05 vide Exh.28, Exh.48 and Exh.49. However,
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defendant No.01 to 05 did not appear and did not engage new
advocates.
21. In view of above right of defendants to offer evidence was
forfeited vide order Dt.23.07.2026 and 30.07.2026. Suit is ex parte
against defendant no.6 as per order Dt.18.2.2022.
22. I have heard Ld Advocate for plaintiff. He submit that
agreement Exh.46 Dt.18.12.2006 and various rent receipts, shop and
establishment license coupled with demand for electricity bill clearly
says that late Mr. Qasim was tenant of Gala No.29 and owner of shop
No.90. It is also argued that original passbook establish fact of payment
of monthly compensation by defendants to plaintiffs. Thus, Ld Advocate
for plaintiff submit that oral and documentary evidence of plaintiff may
be acted upon and suit may be decreed.
23. In view of issues Exh.17 and Exh.17A, I have recorded my
findings for the reasons mentioned herein-under:
Sr. Issues Findings
1. Whether the plaintiff Nos.2 to 4 proved
that they and defendant Nos.1 to 3 had
transaction about the suit shop and
pursuant to that agreement between
them, the defendants were paying
monthly compensation to the plaintiff
for the same?
Does not survive.
2. Whether the plaintiff Nos. 2 to 4
proved that the transaction between
the plaintiffs and the defendant Nos.1
to 3 is legal and binding upon the
defendant Nos. 4 and 5 ?
Does not survive.
3. Whether the plaintiff Nos.2 to 4 proved In the affirmative.
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that they are entitled to decree
declaring the agreement dated
18.12.2006 between Qasim Shaikh and
the defendant No.1 is valid and binding
upon the defendants?
4. Whether the defendants proved that
they are not liable to provide the suit
shop to the plaintiff ?
In the negative.
5. Whether the defendant Nos. 4 and 5
proved that they were not aware about
the transaction between the plaintiff
and the defendant Nos.1 to 3 and the
same is not binding upon them?
In the negative.
6. Whether the plaintiffs are entitled to
decree directing the defendants jointly
and severally to handover the suit shop
to the plaintiff?
In the affirmative to
the extent of
defendant no. 4 to 6
7. Whether the plaintiffs are entitled to
decree of permanent injunction against
the defendants in respect of the suit
shop?
In the affirmative.
8. Whether the plaintiffs are entitled to
decree directing the defendants jointly
and severally to pay the arrears of the
monthly compensation to the plaintiff
in respect of the suit shop?
In the affirmative to
the extent of
defendant no. 4 to 6
9. Whether the plaintiff Nos. 2 to 4
proved that the suit is filed within the
prescribed period of limitation?
In the affirmative.
10. Whether defendant Nos.1 to 3 proved
that the agreement dated 18.12.2006 is
forged and fabricated?
In the negative.
11. Whether the plaintiff Nos. 2 to 4
proved that late Qasim Usman Shaikh
was in possession of the said shop
No.90, at the time of execution of the
agreement dated 18.12.2006 and he
received compensation from defendant
No.1 in terms of the said agreement?
In the affirmative.
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12. Whether the plaintiffs have valued the
suit properly and paid sufficient Court
fees?
In the affirmative.
12-A Whether the plaintiff has given the
description of suit property as per the
provisions of O-VII, Rule -3 of CPC ?
In the affirmative.
13. What order ? As per final Order.
R E A S O N S
Reasons as to Issue No. 3,6,7,8 and 11.
24. These issues are inter connected with each other so they are
discussed together as under for the sake of brevity and to avoid
repetition.
25. Mrs. Sumaiyya PW-01 in her evidence elaborately narrated
about right of late Mr. Qasim in respect of Gala No.29 and Shop No.90.
This witness categorically deposed about agreement Dt.18.12.2006
which is at Exh.46. Tenor of testimony of this witness is that late Mr.
Qasim was tenant of Gala No.29 and after redevelopment he was
provided with shop No.90 admeasuring 10 x 10 ft. As per this witness
for the purpose of piling work, Mr. Qasim was asked to vacate his shop
and defendant No.01 agreed to pay monthly compensation.
26. Testimony of Mrs. Sumaiyya further reflect that subsequently
defendant No.04 to 06 joined defendant No.01 to 03 in the project and
it was defendant No.04 who was paying monthly compensation
Rs.8,000/- to Mr. Qasim. I have gone through documents on record.
Exh.29 is the Power of Attorney in favor of Mrs. Sumaiyya and on the
strength of Exh.29 she stepped into witness box.
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27. So far as right of Mr. Qasim either with respect to Gala No.29
or shop No.90 is concerned, plaintiffs have placed on record various
documents. Exh.30 to Exh.34 are the various rent receipts which clearly
says that late Mr. Qasim was paying rent of Gala No.29. These receipts
are of year 1983 to 1990. Exh.35 (colly) is yet another important
document. Vide Exh.35 (colly) various inspection reports of Municipal
Corporation of Gr. Bombay in respect of Gala/Stall No.29 are placed on
record. These inspection reports were prepared by official of Public
Health Department. These reports says that there was no objection to
issue fresh license.
28. Plaintiffs below Exh.36 (colly) placed on record shop license
of Mr. Qasim along with number of renewal receipts. It is evident that
late Mr. Qasim was running Broadway Cold Storage in Stall/Gala
No.29. Below Exh.37 (colly) plaintiff placed on record various
intimations by Bombay Electric Supply in respect of Broadway Cold
Storage. So these documents are more that sufficient to arrive at a
conclusion that late Mr. Qasim was a tenant in respect of Gala/stall
No.29.
29. Exh.46 i.e agreement Dt.18.12.2006 is a very decisive
document in this case. I have gone through said agreement. Its an
agreement executed between late Mr. Qasim and defendant No.01. As
per said agreement it is specifically mentioned that Mr. Qasim was
owner of shop No.90 located at Wadala Private Market and his shop
was required for piling work. Clause No.3(c) specify that area of shop
No.90 was 10 X 10 ft. Clause No.3(d) clarify that defendant No.01
agreed to pay Rs.5,000/- as monthly compensation till completion of
the construction work.
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30. In written statement defendant No.01 to 03 clearly mentioned
that redevelopment work was later on handed over to defendant No.04.
Though these defendants denied agreement Exh.46 but they have not
cross-examined plaintiff’s witness nor defendant No.01 to 03 stepped
into witness box. So there is no reason to disbelieve oral and
documentary evidence of plaintiff.
31. So far as stand of defendant No.4 and 5 is concerned, they
denied knowledge of agreement Dt.18.12.2006. However, apart from
denial these defendants as well did not challenge oral and documentary
evidence of plaintiff. For the reasons best known to them these
defendants avoided to step into witness box.
32. Plaintiff has placed on record copies of passbooks vide Exh.42
(colly). Entries in these passbooks clearly reflect that amount of
monthly compensation was deposited in the account of late Mr. Qasim,
maintained in Abhyudaya Co. Op. Bank Ltd. There is no rebuttal
evidence brought on record by defendants. So far as monthly
compensation is concerned its an admitted fact that those were
defendant no 4 to 6 who took over project from defendant no.1 to 3
and they were paying monthly compensation to late Mr.Qasim.
33. There is no reason to disbelieve agreement Dt.18.12.2006.
Said agreement is valid and binding. Plaintiffs being legal heirs of late
Mr. Qasim are entitled to get possession of shop no.90 from defendant
no.4 to 6. Likewise defendant no 4 to 6 are also liable to pay arrears of
monthly compensation of Rs.1,52,000/. There is ample evidence on
record that late Mr. Qasim was in possession of shop no.90 when
agreement Dt.18.12.2006 was executed and defendant no.1 paid him
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monthly compensation. Apprehension of plaintiffs that defendants may
alienate shop no.90 is reasonable. Therefore, plaintiffs are entitled to
perpetual injunction.
34. Hence, oral and documentary evidence of plaintiff is
trustworthy. Thus, plaintiff successfully discharged burden of issue
No.3,6,7,8 and 11. Therefore, I answer issue No.3,7 and 11 in
affirmative and issue no 6 and 8 in affirmative to the extent of defendant
no. 4 to 6.
As to Issue No. 1 and 2.
35. It is neither a case of plaintiffs nor of any defendants that
existing plaintiff had any transaction or agreement with defendant
No.02 to 04. Plaint and written statement always speaks about late Mr.
Qasim and his right about Gala No.29 as a tenant and as a owner of
shop No.90. Plaintiffs are claiming rights as legal heirs of late Mr.
Qasim. This Court already answered issue No.3,7,11 in affirmative and
issue no. 6 and 8 in affirmative to the extent of defendant no. 4 to 6.
Rights of plaintiffs flow from right of late Mr. Qasim. Therefore, issue
No.01 and 02 does not survive. Hence, findings of these two issues is
recorded as ‘ does not survive’.
As to Issue No. 4, 5 and 10.
36. So far as these issues are concerned neither defendant No.01
to 03 nor defendant No.04 to 06 entered into witness box and offered
evidence in rebuttal. It is worth to note that these defendants not even
cross-examined plaintiff’s witness. Merely denying contention of
plaintiff in written statement is not sufficient. There is no evidence on
record which could say that agreement Dt.18.12.2006 is a forged and
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fabricated document. Its an admitted fact that defendant No.04 to 06
stepped into shoes of defendant No.01 to 03. So it was duty of
defendant No.01 to 03 to inform defendant No.04 to 06 about
agreement Dt.18.12.2006. In absence of evidence by defendants, I
answer issue No.4, 5 and 10 in negative.
As to Issue No.9 and 12
37. This suit is lodged on 28.03.2019. As per plaintiff defendant
No.04 paid monthly compensation till September-2017 and thereafter,
did not pay monthly compensation. Cause of action is a bundle of facts
when put together entitle someone to sue the other in a Court of Law
seeking necessary legal remedies. In this suit cause of action accrued in
favor of plaintiffs when defendant No.04 stopped paying monthly
compensation to late Mr. Qasim.
38. Copy of death certificate Exh.43 says that Mr. Qasim passed
away on 06.02.2018. Thus, his legal heirs rightly sued defendants
within 3 yeas from September-2017. Thus, suit is filed within limitation.
Defendants did not elaborate how suit is not properly valued and how it
ought to have been valued. Plaintiff is not seeking declaration of
ownership in this suit. Apart from monetary relief, remaining reliefs are
not susceptible of monetary valuation. So far as monetary reliefs are
concerned plaintiff properly valued the claim and paid proper Court
fees. Hence, I answer issue No.9 and 12 in affirmative.
As to Issue No.12(A)
39. As per O.VII R.3 of the Code of Civil Procedure
, where the
subject matter of the suit is immovable property, the plaint shall
contain a description of the property sufficient to identify it, and, in
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case such property can be identified by boundaries or numbers in a
record of settlement or survey, the plaint shall specify such boundaries
or numbers.
40. I have gone through plaint, more particularly para No.01.
Plaintiffs have elaborately narrated shop No.90. They have provided its
exact number, area and survey number as 2158 and Cadastral Survey
No.1/583, located at Dadar, Naigaun Division, Wadala, Mumbai - 400
031. These many details are sufficient to identify the property and it
satisfy requirement of above referred provision. Hence, I answer issue
No.12(A) in affirmative.
41. In view of above discussion and findings plaintiffs are
entitled to relief of declaration in respect of agreement Dt.18.12.2006.
As defendant No.04 to 06 stepped into shoes of defendant No.01 to 03
so defendant No.04 to 06 can be directed to handover vacant possession
of shop No.90 to plaintiffs. At the same time defendant No.04 to 06 are
jointly and severally liable to pay Rs.1,52,000/- to plaintiffs.
Considering reasonable apprehension of plaintiffs relief in respect of
perpetual injunction deserves to be granted. Hence, as answer to issue
No.13 following order is passed.
ORDER
1. Commercial Suit No.916 of 2021 is decreed with costs as
follows.
2. It is declared that agreement Dt.18.12.2006 executed
between defendant No.01 and late Mr. Qasim Shaikh is valid,
subsisting and binding on both the parties.
3. Defendant No.04 to 06 shall handover vacant and peaceful
possession of shop No.90 admeasuring 10 X 10 ft ( as
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described in para No.01 of the plaint) to plaintiffs within
three months from the date of this judgment.
4. Defendant No.04 to 06 shall jointly and severally pay
Rs.1,52,000/-(Rupees One Lakh Fifty Two Thousand only) to
plaintiffs within three months from the date of this judgment.
5. Defendants, their servants, agents are restrained perpetually
from transferring or creating third party interest in respect of
shop No.90 admeasuring 10 X 10 ft ( as described in para
No.01 of the plaint).
6. Decree be drawn up accordingly.
7. Judgment is dictated and pronounced in open Court.
8. After compliance and period of Appeal, Sheristedar and AS to
consign Record of the suit, to Record Room.
Mumbai
Dated : 14.08.2026
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.83 - Summary Court,
Mazgaon, Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER AND
TYPIST
14.08.2026 03.50 p.m. Manisha Srinath
Stenographer - Grade I
Swapnali Jagtap
Clerk-Typist
Name of the Judge Shri. Prasad. P. Kulkarni
(C.R.NO. 83)
Date of Pronouncement of
Judgment/Order.
14.08.2026
Judgment/order signed by P.O on 14.08.2026
Judgment/order uploaded on 14.08.2026
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