Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1370-20 in SU no.1118/20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON NOTICE OF MOTION NO. 1370 of 2020
(CNR no. MHCC01-004234-2020)
IN
SUIT NO. 1118 OF 2020
(CNR no. MHCC01-003857-2020)
Piedade John Pereira
Age : 62 years, Occ : Unemployed,
c/o Eusteria Pereira
nee Nigrel
residing at Flat No.102, rizvi Heights,
Off Lady Jamshedji Road, Mahim (West),
Mumbai-400016.
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Plaintiff
Versus
1. Guilhermina Jack B. D’souza
Age : 65 years, Occ : Retired Teacher,
temporarily residing at BEST Rajhansa CHS
Ltd., B4/2/Anil Ubale Marg, Link Road,
Ghatkopar (East),
Mumbai-400075. &
Permanently residing at :
Sanket Siddhi CHS Ltd., Near St. Joseph
Church, Vikhroli (West), Mumbai-400083.
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2. Sukrina Mascerenhas
Age : 68 years, Occ : N.A.
Residing at C/6, Central Bank Cottage,
CHS Ltd., Dadabhay Cross Road No.3,
Vile Parle (West), Mumbai-400056.
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3. Eusteria Pereira
nee Nigrel
Age : 72 years, Occ : Housewife,
residing at Flat No.102, Rizvi Heights,
Off Lady Jamshedji Road, Mahim (West),
Mumbai-400016.
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4. Vincent John Pereira
Age : 62 years, Occ : Not Known,
Residing at G/307, Dhruv Residency,
Pashane Road, Vangani (West),
Thane-410101.
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5. Bernadi Dennis Anthony Pereira
Age : Not Known, Occ : Housewife,
w/o of Dennis John Pereira.
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6. Lea Dennis Anthony Pereira
Age : Not Known, Occ : Not Known,
d/o of Dennis John Pereira.
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7. Lenovo Dennis Anthony Pereira
Age : Not Known, Occ : Not Known,
s/o of Dennis John Pereira.
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8. Letisha Dennis Anthony Pereira
Age : Not Known, Occ : Not Known,
d/o of Dennis John Pereira
All Defendants No. 5 to 8 residing at Flat
No.26-A, Neel Varsha CHS Ltd., 85, Sonawala
Agiary Marg, Mahim, Mumbai-400016.
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9. The BEST Rajhans CHSL
Anil Ubale Marg, Link Road,
Ghatkopar (East), Mumbai-400075.
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10. The Secretary The BEST Rajhans CHS Ltd.
Anil Ubale Marg, Link Road,
Ghatkopar (East), Mumbai-400075.
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Defendants
Appearances:-
Ld. Advocate Mr. K. G. Chavan with Advocate Mr. Rahul Kedar for
the Plaintiff.
Ld. Advocate V. E. Pereira for Defendants no.1 and 2.
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CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 16th December, 2020.
O R A L O R D E R
1. In this suit for declaration, partition and possession of
the suit flat, the plaintiff has filed instant application by Notice of
Motion under Order XXXIX Rule 1 of Code of Civil Procedure, 1908
seeking following reliefs :
a. Pending the hearing and final disposal of the present suit,
this Hon’ble Court be pleased to pass a preliminary decree
of partitioning of the suit flat and handover, deliver, quiet,
vacant and peaceful possession of such share in the suit flat
to the plaintiff for her use and occupation.
b. Pending the hearing and final disposal of the present suit,
this Hon’ble Court be pleased to appoint the Court Receiver
of the Hon’ble Bombay High Court and/or any other person
as it deems fit to this Hon’ble Court with full powers under
XL of Code of Civil Procedure including but not limited to
take possession of the suit flat, sell the suit flat and/or take
such steps to partition the suit flat and handover such
share in the suit flat to the plaintiff and/or handover the
possession of such share in the suit flat to the plaintiff for
her use and occupation.
c. Pending the hearing and final disposal of the present suit,
this Hon’ble Court be pleased to direct the Defendant No.1,
2, 9 and 10 to declare on oath and produce such deed/s
and document/s, record/s, writing/s and/or any other
relevant document/s other than the ones mentioned in the
present suit allegedly executed pertaining to the suit flat.
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Prayer clause (c) of the Notice of Motion was already
granted on 01.10.2020 and the defendants no.1, 2, 9 and 10 were
directed to produce all the relevant documents in their possession.
Therefore, the further discussion is restricted to prayer clauses (a)
and (b) only.
2. If prayer clause (a) is seen, the plaintiff is seeking
preliminary decree of partition of suit flat at the interim stage viz.
during pendancy of the suit. The parties have not started with oral
evidence. The documents filed by the parties are not yet proved in
accordance with the provisions of Indian Evidence Act, 1872. The
stage of pronouncing judgment and passing decree comes after the
case has been heard. This stage is at far distance from the current
stage when written statement is not even filed by all defendants. It
is true that there is a provision under Order XII Rule 6 of Code of
Civil Procedure, 1908 to give judgment on admissions. But, in this
matter, the defendants have not made admissions of facts either in
pleading or otherwise and therefore, this provision is also not
applicable to the facts of this case. Therefore, prayer clause (a) is
liable to be rejected at interim stage of the suit.
3. In prayer clause (b), the plaintiff has prayed to appoint
the Court Receiver to take possession of the suit flat and handover
1/6th share in the suit flat of the plaintiff for her use and
occupation. The five principles while exercising equity jurisdiction in
appointing Court Receiver are as follows :
(1) The appointment of a receiver pending a suit is a matter resting
in the discretion of the Court. The discretion is not arbitrary or
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absolute: it is a sound and judicial discretion, taking into
account all the circumstances of the case, exercised-for the
purpose of permitting the ends of justice, and protecting the
rights of all parties interested in the controversy and the
subject-matter and based upon the fact that there is no other
adequate remedy or means of accomplishing the desired objects
of the judicial proceeding.
(2) The Court should not appoint a receiver except upon proof by
the plaintiff that prima facie he has very excellent chance of
succeeding in the suit.
(3) Not only must the plaintiff show a case of adverse and
conflicting claims to property, but, he must show some
emergency or danger or loss demanding immediate action and
of his own right, he must be reasonably clear and free from
doubt. The element of danger is an important consideration. A
Court will not act on possible danger only; the danger must be
great and imminent demanding immediate relief. It has been
truly said that a Court will never appoint a receiver merely on
the ground that it will do no harm.
(4) An order appointing a receiver will not be made where it has
the effect of depriving a defendant of a 'de facto' possession
since that might cause irreparable wrong. If the dispute is as to
title only, the Court very reluctantly disturbs possession by
receiver, but if the property is exposed to danger and loss and
the person in possession has obtained it through, fraud or force
the Court will interpose by receiver for the security of the
property. It would be different where the property is shown to
be 'in medio', that is to say, in the enjoyment of no one, as the
Court can hardly do wrong in taking possession: it will then be
the common interest of all the parties that the Court should
prevent a scramble as no one seems to be in actual lawful
enjoyment of the property and no harm can be done to anyone
by taking it and preserving it for the benefit of the legitimate
who may prove successful. Therefore, even if there is no
allegation of waste and mismanagement the fact that the
property is more or less 'in medio' is sufficient to vest a Court
with jurisdiction to appoint a receiver. Otherwise a receiver
should not be appointed in supersession of a bone fide possessor
of property in controversy and bona fides have to be presumed
until the contrary is established or can be indubitably inferred.
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(5) The Court, on the application of a receiver, looks to the
conduct of the party who makes the application and will usually
refuse to interfere unless his conduct has been free from blame.
He must come to Court with clean hands and should not have
disentitled himself to the equitable relief by laches, delay,
acquiescence etc.
4. In this matter, the plaintiff claims her 1/6th share in the
suit flat being the legal representative of deceased John. The
defendant no.1 has objected the claim by stating that she paid
whole consideration for the suit flat. Ld. Advocate for the defendant
has argued that the instant suit seeking declaration of the
nomination form dated 26.06.1981, another nomination form dated
05.11.1988, affidavit dated 12.08.1986 executed by father along with
other documents to be illegal is filed after about 23 years from the
death of father on 06.09.1997 and therefore, it is hopelessly barred
by limitation. Ld. Advocate for the plaintiff argues that even though,
the father died in 1997, the defendants never objected to the entry
of the plaintiff in the suit flat till 2015, the plaintiff filed
testamentary petition in the Hon’ble Bombay High Court in 2017
soon thereafter and therefore, there was no delay on the part of the
plaintiff in challenging the defendants’ claim. However, the plaintiff
has filed on record her notice to the Secretary, BEST Rajhans CHS
Ltd. dated 15.05.2007. Paragraphs no.9 and 11 of the said notice are
relevant and they read as under :
9. My clients states that Mrs. Gulagrmina D’souza has taken
possession of the said premises forcefully, illegally and she
is not allowing my clients to stay in the said premises and
exercise their living rights in respect of the said premises.
My clients states that Mrs. Gulagrmina D’souza’s above
action is unauthorized, illegal and amounts to trespassing
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into the said premises and illegal possession of the said
residential premises.
11. My clients states that Mrs. Gulagrmina D’souza is
restraining my clients from exercising their legal rights to
live in the said residential house, thus my clients scared
that Mrs. Gulagrmina D’souza may try to sell and transfer
the interest of the said residential premises to the third
party.
5. From these averments in the notice, it is abundantly
clear that the parties have a long standing dispute since prior to
2007. The defendant no.1 is admittedly in occupation of the suit
flat. It is worth noticing that the plaintiff had filed Notice of Motion
no. 38 of 2018 in testamentary Petition no.205 of 2017 seeking relief
to allow her to enter and reside in the suit flat. The single bench of
Hon’ble Bombay High Court has considered the aspect of delay and
factum of actual possession of suit flat and dismissed the said Notice
of Motion on 26.03.2018. The Appeal no. 223 of 2018 also came to
be dismissed on 21.08.2018. In the order dated 26.03.2018, the
protection is granted to present plaintiff by restraining the defendant
no.1 herein from disposing off and parting with possession of suit
flat. The alleged interest of the plaintiff in the suit flat is already
protected by Hon’ble High Court. The arguments on the emotional
aspects that the plaintiff is old lady, she has to be dependent on
other sister for residence doesn’t carry much importance when there
is foundational weakness in plaintiff’s case. The aspects such as
absence of registered document, whether the Benami Transactions
(Prohibition) Act, 1988 are not relevant to decide the issue of
appointment of Court Receiver after looking into the conduct of the
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parties, delay in filing the suit and when rights of the plaintiff in
the suit flat, if any, are already protected by order of Hon’ble
Bombay High Court in Notice of Motion no.38 of 2018.
6. For the discussion above, the judgment relied upon by
the plaintiff on the points of limitation, legal character of nominee,
non-registration of documents are not applicable to the facts of this
case. For these reasons the Notice of Motion is liable to be
dismissed. Hence, following order :
ORDER
1. The Notice of Motion no.1370 of 2020 is dismissed.
2. Costs in cause.
(C. V. Marathe)
Judge,
Date : 16.12.2020. City Civil Court, Gr. Mumbai.
Dictated on : 16.12.2020
Transcribed on : 16.12.2020
Signed by HHJ on : 16.12.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.12.2020 at 11.06 a.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
16/12/2020
JUDGMENT/ORDER signed by
P.O. on
16/12/2020
JUDGMENT/ORDER uploaded
on
17/12/2020
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