Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order on NM915-19&1441-19 SU563-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
COMMON ORDER
ON
NOTICE OF MOTION NO. 915 OF 2019
(CNR no. MHCC010024432019)
AND
NOTICE OF MOTION NO. 1441 OF 2019
(CNR no. MHCC010037652019)
IN
S.C. SUIT NO. 563 OF 2019
(CNR no. MHCC010024352019)
1. Mrs. Sarah Johon Aston & Anr. ]... Plaintiffs
Versus
1. Shri Salim Salim Jamal Khan & Anr. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 18th April, 2019.
Mr. Gauraj Shah, advocate for plaintiffs.
Mr. M. A. Attar, advocate for defendants.
ORDER
1. The plaintiffs have taken out notice of motion no. 915 of
2019 for interim injunction for restraining the defendants from entering
in the suit premises and demolishing the same etc. Earlier, an ad
interim injunction has been granted in favour of the plaintiffs on
20.02.2019.
2. The defendants have taken out notice of motion no. 1441
of 2019 for restraining the plaintiffs from dispossessing them or
removing forcibly from the suit premises; and for vacating the order of
adinterim injunction dated 20.02.2019.
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3. Both the notices of motion pertain to the suit premises
which are located at 138, Dandekar Compound, C.T.S. no. 182 of Kurla
IV, near Kanji Seth Chawl, Opposite Puttu Seth Compound, Match
Factory Lane, H.P. Keluskar Marg, Kurla (West), Mumbai – 70.
4. The learned advocate for the defendants submitted that
none of the plaintiffs reside at the suit premises. According to them, the
plaintiff no. 1 went to Israel in or about 1989 and thereafter, she died
there, and therefore, the deed of power of attorney executed in 1995,
on which the plaintiff no. 2 is relying is not at all valid and can not be
looked into. According to him, the earst while tenant of the suit
premises Mr. Haji Ismail Haji transferred the suit premises in favour of
the defendants in 2003 for consideration. The suit premises were in
dilapidated condition. The defendants sought for permission for repairs
of the suit premises. The defendants are in lawful possession of the suit
premises. They are not encroachers and therefore, he prayed for
vacating adinterim relief granted in favour of the plaintiffs and further
to restrain the plaintiffs from dispossessing the defendants.
5. On the other hand, the learned advocate for the plaintiffs
submitted that the defendants are trying to encroach upon the suit
premises. They are not having any documents to show their right, title
or interests in the suit premises and possession thereof. According to
him, the repair permission and such other documents are procured after
the date of suit. The defendants are claiming through one Haji Ismail
Haji and not through the plaintiffs. According to him, permission to
repair the suit premises was not granted. He also submitted that
inspection of the documents was not given to him. He submitted that
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the defendants have not produced any documents to show that they are
in actual possession of the suit premises. He placed reliance on the ratio
in the case of Maria Margarida. According to him, the plaintiff no. 1 is
living and there are no documents to show that she is dead. Lastly, he
submitted that the writ of summons was served to the defendants at the
address mentioned in the plaint and not at the address of suit premises.
6. In reply, the learned advocate for the defendants submitted
that the defendants are not denying the title of the plaintiff no. 1.
However, the earlier tenant Haji Ismail Haji sold the suit premises to
defendants in 2003. It was in dilapidated condition and therefore, a
notice under Section 354 of the Mumbai Municipal Corporation Act
(M.M.C. Act) was issued, which was challenged by the defendants by
filing a suit. The said suit was withdrawn in Lok Adalat and thereafter,
permission was granted for repairs.
7. In reply, the learned advocate for the plaintiffs submitted
that the alleged transfer of suit premises by Haji Ismail to the
defendants is contrary to the provisions of the Maharashtra Rent
Control Act and therefore, the same can not be considered.
8. On this premise, it is necessary to look into the copies of
documents placed on record by the respective parties. Prima facie the
title of the plaintiff no. 1 to the suit premises derived through her father
Mr. Issac Benjamin Dandekar is not disputed. The copies of 7 X 12
extract and the property register card prima facie show the name of the
plaintiff no. 1 as holder of the suit premises. The copy of deed of power
of attorney dated 12.01.1995 prima facie show that the same was
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executed by the plaintiff no. 1 and others in favour of the plaintiff no. 2
in order to look after the suit premises with a power to appear and
represent them before the Court and file necessary documents in the
Court etc. The said power of attorney appears to have been executed
before the notary public, though it does not bear the notary register
number.
9. The plaintiffs have also filed certain photographs claiming
to be the same of the suit premises snapped prior to and after the date
of suit which prima facie show that the suit premises are not at all in
habitable condition or in actual use, occupation and enjoyment of
anybody.
10. The copy of sale agreement dated 09.10.2003 prima facie
shows that the vendor Haji Gulam Nabi Ismail Shaikh agreed to sell a
property comprising of 4 rooms in dilapidated, depreciated and decayed
stage and condition probably at the address of the suit premises for
Rs.11,00,000/ to the defendants with liberty to develop or reconstruct
the same. The said vendor has not disclosed his status as a tenant in the
said document. The said document appears to have been executed
before a notary public and it does not bear the notary register number.
11. The copy of plaint in L.C. Suit no. 2449 of 2010 prima facie
show that it was a suit instituted against Municipal Corporation of
Greater Mumbai (M.C.G.M.) relating to the suit premises for declaration
of getting deemed permission for repairs. It is undisputed that the said
suit was withdrawn in Maha Lok Adalat on 09.04.2016 unconditionally.
The copy of reply filed by the concerned engineer of M.C.G.M. in that
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suit prima facie show a contention that the plaintiffs (defendants
herein) did not show their title to the suit premises and entitlement to
get it repaired / reconstructed and thus, the permission was not granted
to them. However, it is not sufficient to show prima facie that the
defendants are in actual possession of the suit premises.
12. The copy of letter dated 07.02.2019 issued by the Assistant
Engineer (Building and Factory) 'L' ward of M.C.G.M. in the name of
defendant no. 1 prima facie shows that in furtherance of his application
dated 07.02.2019, he was informed that for the matters mentioned in
clause nos. (i) to (vii) of that letter permission under Section 342 of
M.M.C. Act is not required. It was also mentioned that any work done in
addition will be dealt with according to law.
13. The application by defendant no. 2 dated 20.02.2019 and
24.02.2019 to the concerned police for taking action against some
different persons are so made after the date of suit. The copy of notice
issued under Section 354 of the M.M.C Act dated 14.06.2016 appears to
have been issued to defendant no. 1 in respect of a premises named as
“Salim Khan House” located in the Dandekar Compound. The
defendants have not produced anything on record to show prima facie
that the suit premises and the Salil Khan House are one and the same
premises.
14. Moreover, the copy of letter dated 03.10.2017 issued by the
defendants to the M.C.G.M. relating to the repair of suit premises shows
their different residential addresses. On the other hand, the copy of
reminder letter dated 09.11.2015 issued by the defendants to M.C.G.M.
prima facie shows the address of Dandekar compound. Similarly, the
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notice dated 27.05.2016 issued under Section 353B of the M.M.C. Act
prima facie shows that the same has been issued to the chairman /
secretory / owner / occupier of the Salim Khan House located at
Dandekar compound.
15. The copy of municipal tax assessment bill for the year
200405 of the suit premises appears to have been issued in the name of
the plaintiff no. 1. The defendants have not produced any such bill for
current period showing that they have paid the same.
16. Considering the aforesaid copies of documents and rival
submissions, it appears prima facie that the title of plaintiff no. 1 to the
suit premises is not disputed. However, the status of Haji Ismail Haji
and his rights, title and interests in the suit premises and capacity to
transfer the same to the defendants are required to be considered on
merits. It is also required to be seen as to what rights, title and interest
the defendants acquired on the basis of such notarized agreement in
respect of the suit premises. Though, it is mentioned to sell the suit
premises in favour of the defendants, except that document, there is
nothing placed on record to show that the defendants were / are in
actual, physical possession, use, occupation and enjoyment of the suit
premises at any point of time since 2003 till today. Moreover, the
defendants have not prima facie clarified whether they acquired the suit
premises or the property known as Salim Khan House; and in respect of
which property they were applying to the M.C.G.M. for repairs.
17. Moreover, in notice of motion no. 1441 of 2019 the
defendants are seeking protection of their alleged possession of the suit
premises. So far as, the provisions of Rule 1(a) of Order XXXIX of the
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Code of Civil Procedure (C.P.C.) are concerned they are available to
both the plaintiff and the defendant when any property in dispute in a
suit is in danger of being wasted, damaged or alienated by any party to
the suit, or wrongfully sold in execution of a decree. On the other hand,
the provisions of Rule 1(b & c) of Order XXXIX of the C.P.C. are only
available to the plaintiff against defendant for restraining him when he
threatens or intends to remove or dispose off the property with a view
to defraud the creditors or importantly, when the defendant threatens
to dispossess the plaintiff or otherwise cause injury to the plaintiff in
relation to the property in dispute in a suit. Thus, the defendant is only
entitled to seek a temporary injunction under Order XXXIX Rule 1(a) of
the C.P.C. The defendant is not entitled to seek temporary injunction
under Rule 1(b & c) of Order XXXIX of the C.P.C. Here, the defendants
are seeking protection of their possession and the same can not be
granted in a suit filed by the plaintiffs. Reliance is placed on the ratio
laid down by the Hon'ble High Court of Bombay in the case of
Nanasaheb vs. Dattu reported in A.I.R. 1992 Bombay 24. In view of
the same the notice of motion taken out by the defendants deserves to
be dismissed.
18. That apart, the defendants have not produced any
documents even to show their possession simplicitor to the suit
premises apart the aforesaid documents relating to the building
permission etc. Therefore, merely, on the basis of the alleged agreement
executed by Haji Ismail Haji the alleged possession of the defendants
cannot be protected in this suit. Protection can only be granted or
extended to a person who has valid and subsisting rent, lease or license
agreement in his favour. A care taker or an agents in possession or the
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possession of a watchman servant can not be so protected in view of the
ratio laid down by the Hon'ble Supreme Court in the case of Maria
Margarda Sequeira vs. Erasmo Jack De Sequeira reported in
(2012)5 Supreme Court Cases 370. Therefore, on this ground also the
motion taken out by the defendants is not maintainable.
19. So far as, the motion taken out by the plaintiffs is
concerned, prima facie the plaintiff no. 1 is having the title to the suit
premises and the plaintiff no. 2 being her power of attorney holder, the
plaintiff no. 1 is in possession and having ownership of a suit premises
and that if anybody on the basis of any documents are trying to
encroach or trespass upon the suit premises, are required to be
restrained by an order of temporary injunction. Therefore, the notice of
motion no. 915 of 2019 deserves to be allowed. It is also made clear
that if the plaintiff no. 1 found dead prior to date of suit, appropriate
orders will be passed in the matter. Thus, directing the respective
parties to bear their own costs of the motions the following order is
passed :
ORDER
1. The Notice of Motion no.915 of 2019 is made absolute in terms of
prayer clause (a & b).
2. The Notice of Motion no. 1441 of 2019 is dismissed.
3. Parties to bear their own costs of their respective notice of
motion.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 18.04.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 18.04.2019
Checked by HHJ on : 22.04.2019
Signed by HHJ on : 22.04.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.04.2019 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
18/04/2019
JUDGMENT/ORDER signed by
P.O. on
22/04/2019
JUDGMENT/ORDER uploaded
on
22/04/2019
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