Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1337/18(Suit 3009/18)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1337/2018
(CNR No.MHCC01-004253-2018)
IN
S.C. SUIT NO.3009/2018
Mr. Salim Noor Mohammed Shaikh ..Plaintiff.
V/s.
1. Mr. Ismail Noor Mohammed Shaikh,
2. Shahban Babu Noor Mohammed Shaikh
3. Mrs. Khairunissa Solanki,
4. Mrs. Jainabi @ Janabai Kale,
5. Mrs. Meherunissa Ibrahim Shaikh,
6. Mr. Mohd. Ali Noor Mohd. Shaikh. ..Defendants
Appearance:
Adv. Mr. S.R. Patel for plaintiff.
Adv. Mr. Sohel E. Kazi for defendant no.1.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 21.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
seeking various reliefs, including granting of temporary injunction
against the defendant no.1 not to create third party interest / sale or
transfer the suit premises during pendency of the suit; appointment of
court receiver during pendency of the suit for protection and
maintenance of the suit premises and orders and directions for
restoration of possession to the plaintiff etc. The Motion is supported
by an affidavit of the plaintiff Mr. Salim Noor Mohammed Shaikh and
copies of affidavits of Mohd Shaban Shikh and of Rajjak Abbas Sayyed. I
have perused the plaint and documents filed on record along with
plaint.
2. The defendant no.1 has appeared in the suit through
Counsel and resisted the Motion by filing reply affidavit. Defendant no.1
-- 1 of 10 --
2 N/M 1337/18(Suit 3009/18)
has also filed his WS on record vide Exh.6. Seen and considered the
same.
3. I have heard Ld. Counsels for both sides on 16.9.2019 and
18.10.2019. Ld Counsel for the plaintiff had prayed for passing interim
order as defendant no.1 had failed to submit his reply to the Motion,
however I was not inclined to pass any interim order and therefore,
both the parties were heard after reply was filed by defendant no.1 on
17.9.2019.
4. Ld. Counsel for the plaintiff took me through the Motion as
well as plaint and documents filed on record along with the plaint. It is
the case of the plaintiff that, he and defendants are legal heirs and
successors of late Noor Mohammed Shaikh after the demise of their
mother Mrs. Badrunnisa Noor Mohammed Shaikh. Father of the
plaintiff and defendants had constructed a hut long back prior 1970 and
was residing in the same along with his family members. Accordingly to
the plaintiff, the said premises were having two parts, one was
residential and other was of commercial. Details of the suit premises are
described in para 1 of the plaint.
5. It is submitted that, after death of late Noor Mohd. Shiakh
the suit premises came in possession of the mother of the plaintiff and
she was incharge of the same till she expired on 7.9.2014 and
thereafter, the plaintiff and the defendants have become legal heirs and
successors of the suit premises. It is submitted that the mother of the
plaintiff was doing business in the name and style “Khairali Old Papers
Stores and Pan Shop”, having certificate bearing no. L014547 under
Shop and Establishment Act. The said certificate was renewed from
time to time.
-- 2 of 10 --
3 N/M 1337/18(Suit 3009/18)
6. On the above factual background, it is submitted that, the
dispute arose between the plaintiff and defendants regarding use and
possession of the suit premises and that defendant no.1 had lodged a
complaint with the police against the plaintiff and others on 22.12.2014
to bring pressure on him. Again, on 12.1.2015, another complaint was
lodged by the defendant no.1 with Sr. PI of Nehru Nagar police station
against the plaintiff, defendant no.2 and others. The police authorities
had made enquiry in the matter and recorded statements of the
plaintiff, the defendant and others. It is further case of the plaintiff
that, there had been family settlement between legal heirs and
successors of late Noor Mohd. Shaikh and Mrs. Badrunnisa Shaikh and
an agreement of leave and license was executed in favour of licensee,
who were in occupation and possession, since the lifetime of mother
Badrunnisa Shaikh. It is the grievance of the plaintiff that, defendant
no.1 continued to harass and pressurize the plaintiff and used to take
compensation from the licensees and misappropriated the same, and
has not handed over share of other legal heirs and successors.
7. In the meanwhile, on 8.4.2015, the plaintiff had lodged a
complaint against defendant no.2. It was registered as N.C case. It is
submitted that due to the dispute between the plaintiff and the
defendant no.1, the plaintiff had decided to return deposit to the
licensee and take possession of the suit premises. Accordingly, the
plaintiff had returned the deposit to the licensee Smt. Sarojdevi
Premchand Jain on 29.10.2015 and Shridhar Pujari. Defendant no.1 got
annoyed with the plaintiff as he refunded the deposits and again there
was dispute. As the defendant no.1 was threatening him , the plaintiff
lodged NC complaint no. 1164/15 dated 25.5.2015 u/s. 504 and 506 of
IPC. In view of the same, police had initiated proceedings u/s. 145 of
-- 3 of 10 --
4 N/M 1337/18(Suit 3009/18)
Cr.P.C. against the plaintiff at the behest of defendant no.1 before
Metropolitan Magistrate's Court, Kurla, Mumbai and thereafter had
taken forcible possession of the suit premises with the help and
connivance of defendant no.3. Therefore, the plaintiff had filed Suit
No. 1426/2015 in this court for declaration and injunction. But that
suit has been withdrawn and present suit has been filed by the plaintiff
that the defendant no.1, with the help of defendant no.2 and local
goons, had taken forcible possession of the suit premises on 28.8.2015.
It is the case of the plaintiff that, the defendant no.1, with the help of
local police and local goons, taken over forcible possession of the suit
premises and handed over the same to the local goons with a view that
the plaintiff should not recover possession of the suit premises from the
court. Defendant no.1 has executed the agreement of leave and license
with third persons in respect of the suit premises, against whom several
criminal cases are pending.
8. On the above factual background, Ld. Counsel for the
plaintiff submitted that, present Motion is taken out by the plaintiff for
seeking interim relief of temporary injunction and appointment of Court
Receiver, High Court, Bombay, during pendency of suit because
defendant no1 has been managing local police with the help of
politicians and local goons and threatened the plaintiff and that, he is
likely to sale/create third party interest in the suit premises and mis
appropriate entire sale proceeds. Defendant no.1 has taken forcible
possession of the suit premises by dispossessing the plaintiff. Because of
the suit filed by the plaintiff bearing no. S.C. Suit No.1426/2015,
defendant no.1 was not able to sale out the suit premises or create third
party interest but as per documents filed on record, it can be seen that
the suit premises were given on leave and license basis to two licensees
-- 4 of 10 --
5 N/M 1337/18(Suit 3009/18)
who were paying Rs.6000/ and Rs.9500/ per month as compensation.
The defendant no1, has been appropriating the compensation amount
during pendency of the suit. The plaintiff and other legal heirs and
successors of late Noor Mohd. Shaikh are ready to abide by the family
settlement between the parties. Even as per statement of the defendant
no.1, he was ready and willing to act upon the settlement but now he is
denying the rights of the plaintiff and other legal heirs in respect of the
suit premises. Hence, this Motion, which is supported by affidavits of
Mohd. Shaban Shaikh and Rajjak Abbas Sayyed to show that defendant
no.1 is trying to sale out the suit premises and creating third party
interest during pendency of the suit.
9. Ld. Counsel for the defendant no.1 has strongly opposed
the Motion and relied on the reply and contended that, the plaintiff's
claim in the suit is not bonafide and not maintainable in law. However,
he has admitted that, the plaintiff and defendants are legal heirs and
successors of the suit premises left behind by Noor Mohd. Shaikh and
Smt. Badrunnisa Shaikh. All the grievances and contentions made by
the plaintiff are not true and acceptable as the plaintiff has
misrepresented true facts from the court and has tried to mislead the
court. The plaintiff has prima facie failed to prove his case for getting
adinterim relief as prayed in the Motion. It is admitted by the
defendant no.1 that there is dispute between the parties in respect of
the suit premises and it is of criminal nature and proceedings have been
taken out by the police authorities in that regard. Ld. Counsel for the
defendant no.1 submitted that, the plaintiff has failed to make out
prima facie case and balance of convenience for grant of any interim
relief, as prayed in the Motion. Therefore it is liable to be rejected.
-- 5 of 10 --
6 N/M 1337/18(Suit 3009/18)
10. Ld Counsel for the plaintiff has relied upon following
authority of Hon'ble Bombay High Court in support of his submission in
the case of Mulji Umershi Shah V/s. Paradisia Builders Pvt Ltd. And
Ors. (1997(3) Mh. L.J. 532), wherein Hon'ble Bombay High Court has
held that, even if application for injunction is filed by the party before
the court under Order 39 Rule 1 and 2 of CPC is rejected, the court is
empowered to appoint a court receiver under Order 40 Rule 1 of CPC
suomoto i.e. on its own. The Court is not powerless to pass appropriate
order for appointment of the court receiver. Appointment of court
receiver can be made on any application of the parties to the suit, while
rejecting the application for temporary injunction. A party may not have
any right to the property and still comes in possession of the property
unlawfully and illegally which may be of recent origin and on that basis
may seek to protect his possession by filing suit for injunction and by
making an application for temporary injunction. The Court may find
that such person has no right, title or interest in the property and is not
in lawful possession and, therefore, is not entitled to grant of any
temporary injunction. Nevertheless, the court can appoint a court
receiver for preservation and protection of the suit property during
pendency of the suit.
11. I have gone through the Motion and reply to the Motion
filed on behalf of the defeated no.1. I have also gone through the
pleadings of the parties in the plaint as well as in WS and documents
filed on record. I have also taken into consideration oral submissions
made by Ld. Counsels for the plaintiff and defendant no.1.
12. It can be seen from the prima facie material on record that,
the plaintiff and defendants are legal heirs and successors of late Noor
Mohd. Shaikh in respect of the suit premises. Admittedly, at the time of
-- 6 of 10 --
7 N/M 1337/18(Suit 3009/18)
hearing of the Motion, defendant no.1 is in possession of the suit
premises, but has partly given it on rent. It is the grievance and
contention of the plaintiff that the defendant has forcibly and illegally
taken over possession of the suit premises and is likely to create third
party interest during pendency of the suit. The plaintiff has relied upon
family settlement and agreement between the parties regarding
ownership right and management of the suit premises but defendant
no.1 has denied the same. It has come on record that, due to family
dispute between the plaintiff and the defendants several criminal
complaints and reports have been submitted to the police and police
have made necessary enquiry in the matter and taken preventive steps.
13. It can also be seen from the record that, there are counter
allegations of the facts by the parties against each other. The plaintiff's
allegations are supported by affidavits of Mohd. Shaban Shikh and of
Rajjak Abbas Sayyed. The plaintiff has prayed for relief of temporary
injunction against defendant no.1 during pendency of suit. He has also
prayed directions against defendant no.1 that he should not sale,
transfer or dispose of the suit premises or create third party right in
respect of the suit premises during pendency of the suit. The plaintiff
has also prayed for appointment of court receiver as per Order 40 of
CPC. The plaintiff has also prayed for restoration of possession of the
suit premises to him on the ground that the defendant no.1 has illegally
and forcibly taken over possession of the suit premises from the
plaintiff.
14. Ld. Counsel for the plaintiff has relied upon the authority of
Hon'ble Bombay High Court reported in the case of Mulji Umershi
Shah V/s. Paradisia Builders Pvt Ltd. And Ors. (supra) in support of
-- 7 of 10 --
8 N/M 1337/18(Suit 3009/18)
his submission. However, I find that the ratio of this authority would
not be applicable to the facts of the present case. In the said authority, it
is held that, even if the court has rejected the application for temporary
injunction the court can pass an order of appointment of court receiver
suo moto, in the interest of justice. It is held that, the criteria for grant
of temporary injunction and appointment of court receiver is different.
15. In the present case, admittedly, the plaintiff is not in
possession of the suit premises but it is defendant no.1 who is in
possession of the same. Admittedly, the plaintiff and the defendant are
legal heirs and successors of late Noor Mohd. Shaikh in respect of the
suit premises. Therefore, the order of temporary injunction cannot be
passed against the defendant no.1 during pendency of the suit.
However, it is necessary to pass some interim orders in favour of the
plaintiff to protect him irrespective of the disputed facts between the
parties in the case. Hence, I am of the view that, if present Motion is
partly allowed and directions are given to the defendant no.1 not to
alienate, sale, transfer or create third party right in the suit premises
during pendency of the suit that will be in the interest of justice and
serve the purpose. The relief of restoration of the possession cannot be
granted during pendency of suit, as it will amount to granting final
relief in the suit when there are disputed facts to be adjudicated by the
court.
16. At this stage, it may be observed that, admittedly, the
dispute between the parties in the suit is a family dispute and all the
plaintiff and the defendants are relatives and legal heirs and successors
of late Noor Mohd. Shaikh. Therefore, it is better and in the interest of
both the parties, to sit down together and settle the dispute amicably by
-- 8 of 10 --
9 N/M 1337/18(Suit 3009/18)
taking recourse to Mediation or Lokadalat. Therefore, both the parties
are advised to seriously consider the option of amicable settlement and
compromise between the parties with the help of their respective
Counsels. If the parties are unable to settle the dispute inspite of efforts,
this court may consider the possibility of appointment of court receiver,
during pendency of the suit, as prayed by the plaintiff. With these
observations,I proceed to pass following order :
ORDER
1. Notice of Motion no. 1337 of 2018 is hereby partly allowed.
2. Defendant no. 1 and his agents, servants, representatives or
any one representing on his behalf are hereby directed not to
sell, transfer or disposed of or create any third party interest in
respect of suit premises Shop no. ALH 316, near Chandrakala
book depot (Rishabh ply and Decor), Nehru Nagar, S.G.Barve
Marg, Kurla (E), Mumbai400024, during pendancy of the
suit.
3. Rest of the prayers made in this motion are rejected at this
stage.
4. Hearing of the Suit is expedited.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 21.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 21.11.2019
Typed on : 22.11.2019
Draft given on : 22.11.2019
Signed by HHJ on : 22.11.2019
-- 9 of 10 --
10 N/M 1337/18(Suit 3009/18)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 23.11.19
TIME: 5.20 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 21.11.19
Judgment/ order signed by P.O on 22.11.19
Judgment/ order uploaded on 23.11.19
-- 10 of 10 --