Order 1

Order Details: Other
Pdf Text: 1 ad-int.-N/M 1461/20(Suit 1163/20)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
ORDER ON AD-INTERIM RELIEF
IN
NOTICE OF MOTION NO. 1461/2020
IN
S.C. SUIT NO. 1163/2020
Satnam Palace Co-operative Housing Society
Limited. ..Plaintiff
V/s.
Roshani Co-operative Housing Society Ltd. ..Defendant
Appearance:-
Ld. Adv. Mr.P.D Gandhy for plaintiff.
Ld. Adv. Mr. S.S. Kudalkar for defendant.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 06.11.2020.
ORAL ORDER
1. Plaintiff is a Co-operative Housing Society and has
approached this court by filing a Suit for declaration and perpetual
injunction against defendant Society, in which the relief of temporary
injunction is also sought as per provisions of Specific Relief Act and
Code of Civil Procedure. On 7.10.2020, Ld. Counsel for the plaintiff had
prayed for passing ad-interim order regarding interim relief in favour of
the plaintiff on the ground that the easementary right which was
claimed by the plaintiff Society is based on the grant dated 14.10.1926
and continued thereafter on 28.9.1961 till date. He had also placed
reliance on the authorities of Hon’ble Apex Court and Hon’ble Gujarat
High Court reported in the cases of (1) Hero Vinoth V/s. Seshammal
(AIR 2006 SC 2234) and (2) Gopalbhai Jikabhai Suvagiya V/s. Vinubhai
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Nathabhai Hirani (R/Second Appeal No. 208/2015 with Civil
Application No.1 of 2017) decided on 26.9.2018). After hearing Ld.
Counsel for the plaintiff, I had considered it necessary and appropriate
to hear the defendant before passing any order on ad-interim relief
sought by the plaintiff. The Ld. Counsel for the plaintiff also fairly
submitted that he is not pressing for ad-interim relief exparte
defendant. Accordingly, the defendant is called upon to show cause as
to why the ad-interim relief should not be granted to the plaintiff.
2. On appearance before this court, Ld Counsel Mr. Kudalkar
on behalf of the defendant Society submitted a short reply to the Notice
of Motion restricted to the aspect of ad-interim relief and placed
reliance on certain documents filed with the reply on 26.10.2020. I had
heard Ld. Counsels for both sides regarding passing of orders in respect
of ad-interim relief claimed by the plaintiff in the suit. Hearing on ad-
interim relief continued on 27.10.2020 and on 4.11.2020, Ld Counsel
for the defendant has filed documents as per list.
3. Briefly stated case of the plaintiff before this court is that,
the plaintiff is a Co-operative Housing Society, registered under
Maharashtra Co-operative Societies Act, 1960 known as ‘Satnam Palace’
and defendant is also a Co-operative Society, which is situated adjacent
to the plaintiff Society. Mr. Gandhy, Ld. Counsel for the plaintiff,
submitted that, as per lease agreement dated 27.10.1926 entered into
between P.R. Edwin James, the Lord Bishop of Bombay being Lessor and
Rev William Hazen and Lestor Hayn Beals, being Lessees and the then
Trustees of American Marathi Mission, leasehold rights were created on
the basis of which the plaintiff is claiming its rights of easement on the
basis of grant/ Indenture of Lease dated 27.10.1926, vide Annexure
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“B”, filed with the plaint.
4. It is further submitted that vide agreement dated
28.9.1961, Mr. Dara Jehangir Cama and Mehboob Valimoahmed
Sonawala agreed to sale a portion of said land admeasuring 845 sq.
yards or 706.53 sq. mts. subject to the Indenture of Lease dated
27.10.1926 to M/s. H.G.Construction Company, a partnership firm
which was later dissolved, and a new partnership firm by name M/s.
Hind Rajasthan Construction Company came into existence. The said
agreement dated 28.9.1961 is annexed with the plaint vide Annexure
“C”. In 1960-61, ‘Satnam Palace Apartment’ was constructed as a part
of said land mentioned above, by Hind Rajasthan Construction
Company and the building of defendant Society was constructed
sometime in 1958-59 adjacent to the plaintiff Society on the part of said
land.
5. Thus, it is contended in paras 6 to 9 of the plaint that,
easementary rights which are created by virtue of lease agreement
dated 27.10.1926 have been assigned and transferred and continued
by virtue of lease agreement dated 27.10.1926 in favour of the plaintiff
Society and therefore, the plaintiff Society has acquired access to the
internal road towards main road i.e. Clare Road (Mirza Galib Road)
through defendant Society in consonance with the Lease Agreement
dated 27.10.1926 and further continued vide agreement of 1961. It is
contended on behalf of the plaintiff that, for more than 55 years, the
plaintiff and its members are peacefully using and enjoying the common
internal road without any interruption including ingress, egress of
persons by foot, two wheeler vehicles, four wheeler vehicles and other
means.
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6. Ld. Counsel for the plaintiff specifically argued that the
plaintiff is not claiming easementary rights of internal road on the basis
of prescriptive right but on the basis of grant and therefore, this is fit
case for grant of ad-interim relief in favour of the plaintiff and there is
no question of considering defence of the defendant that, whether the
members of plaintiff Society has got any other alternate way by way of
internal access road.
7. Regarding cause of action, on the basis of factual
background, Ld Counsel for the plaintiff submitted that, in June, 2020,
the plaintiff to its surprise and shock, found that the members of the
defendant Society interrupted peaceful ingress and egress of the
members of the plaintiff Society from common internal road heading
from plaintiff Society through defendant Society towards the main road
i.e. Clare Road and has obstructed the same by parking vehicles. The
said common internal road is shown and marked with read ink in the
map annexed with the plaint vide Exh “D”. It is submitted that, when
the plaintiff Society had taken objection to the obstruction created by
the defendant Society during a meeting held between the office bearers
of the plaintiff Society and defendant Society, the Chairman of the
defendant Society Mr. Aftab Khan had abused the members of plaintiff
Society and threatened with dire consequences and this had compelled
the plaintiff to report the above incident to the Nagpada police station.
Thereafter, the police had intervened and till 22.7.2020 there was no
obstruction from the members of defendant Society. However, on
22.7.2020, again, the members of the defendant Society started parking
their vehicles on the said common internal road and interrupted the
access of the plaintiff Society. Hence, it is utmost necessary to pass ad-
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interim order in favour of the plaintiff during pendency of the Motion
and the Suit, in the interest of justice.
8. Ld. Counsel for the plaintiff has placed heavy reliance on
the decision of Hon’ble Apex Court reported in the case of Hero Vinoth
V/s. Seshammal (AIR 2006 SC 2234) and also decision of Hon’ble
Gujarati High Court in the case of Gopalbhai Jikabhai Suvagiya V/s.
Vinubhai Nathabhai Hirani (R/Second Appeal No. 208/2015 with Civil
Application No. 1 of 2017) decided on 26.9.2018).
9. I have gone through the above authorities and find that, in
the authority of Gopalbhai Jikabhai Suvagiya V/s. Vinubhai Nathabhai
Hirani (
supra), Hon’ble Gujarat High Court has made some observations
in para 18 of the judgment and discussed essentials of easement,
conditions for acquisition of easementary rights and characteristics of
easement etc. While discussing the provisions for easementary rights
by grant vide Section 8 of Indian Easement Act, it is observed that,
grant of easement may be made orally or in writing. It may be
expressed or implied from the circumstances and conduct of the parties.
It may also presumed from the long user or may be inferred from some
usage prevailing in the locality. Easementary rights by grant is
distinguished from the easement rights by prescription and in paras 31
to 39, Hon’ble Gujarat High Court has considered the case law
developed on the subject and in para 32 has particularly referred to
subsequent decision of Hon’ble Apex Court in the case of Hero Vinoth
V/s. Seshammal (
supra) and observed that, Hon’ble Apex Court has
held that, easement by grant does not get extinguished even though
there is another passage available to the dominant owner. It is held that,
the acquisition of easementary rights is relevant and more important in
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any case of grant and it is a matter of contract between the parties.
10.
Per contra, Ld. Adv. Mr Kudalkar, on behalf of defendant
Society, has strongly opposed the submissions made on behalf of the
plaintiff Society regarding grant of ad-interim relief and placed heavy
reliance on the short reply affidavit supported by documents and map
as well as additional documents filed as per list of documents dated
27.10.2020. He submitted that, the plaintiff’s claim in the suit is itself
false, frivolous and vexatious and is not maintainable in law. The
plaintiff has approached this court by filing the suit with ulterior motive
and malafide intention and is not entitled for any interim relief as
prayed. It is submitted that, no cause of action for filing the suit has
taken place as claimed by the plaintiff.
11. He further submitted that, the defendant Society is the
owner of plot of land admeasuring 469.90 sq. mtrs. on Cadastral Survey
C.S. No.1497 of Byculla Division under a deed of conveyance dated
20.12.1968, copy of which is annexed with the reply affidavit vide Exh.
“A”. It is submitted that, Mr. Mohamed Ahmed Moloobhai and one
Sharif Ahmed are original owners of the aforesaid land who were
carrying on business of petrol pump as dealers. Legal heirs of the
original owners were predecessors in title of the defendant Society. It is
submitted that, C.S No. 1497 is behind the said petrol pump and for the
purpose of giving access to the members of the defendant Society an
access way of 12 ½ ft. width from Clare Road to defendant’s Society
was carved out by original owners. Sometime in the year 2007, a
dispute had taken place regarding access way of the defendant Society
and therefore, S.C Suit No.1038 of 2007 was filed by the defendant
Society against legal heirs of the original owners Mohamed Moloobhai
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or Sharif Ahmed and said Suit was decreed in favour of the defendant
Society. This access way or road way of the defendant Society has been
confirmed and approved by the court of law.
12. Ld. Counsel for the defendant has placed reliance on the
Architectural plan annexed with the reply vide Exh.“C” along with
registered conveyance dated 20.12.1968 and submitted that, as per said
plan, to approach towards Mirza Road (now Clare road) for the use of
members of plaintiff’s Society, defendant’s Society as well as Piccadilly
Society having a space of 12 ½ feet has been kept open by their
respective predecessors for their use and free access. On the above
background, it is contended that the plaintiff has suppressed this
material facts from the court and has not come before the court with
clean hands and the plan annexed with the plaint by the plaintiff vide
Exh.“D” is not depicting correct factual aspects and the plaintiff has
made illegal changes in the said map Exh.“D”, which is relied upon by
the plaintiff Society. Ld Counsel for the defendant has heavily relied
upon various photographs filed on record vide Exh.“E” filed with the
reply and submitted that, 12.5 ft internal access road has been provided
to all buildings– Satnam Building, Roshni Building and Piccadilly
Building etc. heading towards main road i.e. Clare Road and therefore,
there is no question of any obstruction by the defendant to the access
road claimed by the plaintiff as alleged in the plaint on 23.6.2020. It
was also submitted that, no parking has been provided to any of the
these buildings and vehicles can not come up to the buildings and as
such, may be, vehicles are parked by the side of approach road.
13. So far as letters dated 10.10.1996 and 29.11.1996, copies
of which are filed on record, as per list separately relied upon by Ld.
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Counsel for the defendant, are concerned, it was submitted that, the
ratios of the authorities cited and relied upon by Ld. Counsel for the
plaintiff is not applicable to the facts of present case so far as grant of
ad-interim relief in favour of the plaintiff is concerned and said
decisions are distinguishable on facts.
14. I have carefully gone through the pleadings of the parties
and documents filed on record including various photographs and maps
regarding easementary rights claimed by the plaintiff in the suit. I have
also carefully considered the oral submissions made by Ld. Counsels for
both sides and also considered the ratio of the authorities of the Hon’ble
Apex Court and Hon’ble Gujarat High Court, cited and relied upon by
Ld. Counsel for the plaintiff.
15.
Prima faice, I find that, no doubt, as per lease agreement
dated 27.10.1926, easementary rights regarding internal access road
was created. The said easementary right is in the form of grant and is
attached to the land in question, which is subject matter of the present
Suit. The said easementary right was further continued in favour of the
plaintiff and its predecessor vide agreement dated 28.9.1961.
Therefore, it cannot be said that the plaintiff’s claim in the Suit is
frivolous or vexatious and that it filed the Suit with ulterior motive.
Further, at this stage, when the defendant has not filed its detailed reply
to the Notice of Motion, I do not find it proper and convenient to pass
any order as to the ad-interim relief claimed by the plaintiff in this
Motion because passing of such orders would ultimately amount to
grant of final relief in the Motion itself.
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16. Careful perusal of the various photographs filed on record
and maps submitted and relied upon by Ld. Counsels for both sides,
shows that, apart from disputed internal access road, there is alternate
access road available to the plaintiff Society. However, that cannot be a
ground for denial of the relief to the plaintiff in the present Motion, as
per settled legal position. But, that is a circumstance, to show that this
is not a case for grant of urgent ad-interim relief. Considering the
aspect that as per view that can be gathered from the photographs
which are filed on record, vehicles appear to have been parked on the
disputed internal access road as claimed by the plaintiff. Therefore,
there is definitely a need to decide the Motion as early as possible by
giving an opportunity to the defendant Society to file its detailed reply.
17. Considering the above facts and circumstances of the
present case, if the ratio of the Hon’ble Apex Court as well as of Hon’ble
Gujarat High Court is applied to the facts of the present case at the
stage of deciding whether the plaintiff is entitle for grant of ad-interim
relief before giving opportunity to the defendant to file its detailed
reply, I am of the considered view that, the decision of the Hon’ble Apex
Court is on merit and the effect of the said decision regarding
adjudication of the right and entitlement of the plaintiff in the present
Suit can be decided when the Motion will be taken up for hearing on
merit. Therefore, I am afraid that the above said rulings are of no
assistance to the plaintiff for getting the order of ad-interim relief, as
prayed.
Under the above discussed circumstances, I am not inclined
to pass any ad-interim relief in favour of the plaintiff at this stage.
Hence, I proceed to pass following order :-
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ORDER
1. Ad-interim, as prayed, is refused.
2. The defendant is directed to file a detailed reply to the
Motion within two weeks from today.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 6.11.2020 Gr. Bombay (C.R. 03)
Dictated on : 6.11.2020
Transcribed on : 6.11.2020
Draft given to HHJ on 6.11.2020
Signed by HHJ on : 7.11.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON : 9.11.2020
TIME: 1.25 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 6.11.2020
Judgment/ order signed by P.O on 7.11.2020
Judgment/ order uploaded on 9.11.2020
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