Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2637/22 in S.C.Suit No. 2607/19. 1 Order.
MHCC010078792022
Presented on : 27-07-2022
Registered on : 27-07-2022
Decided on : 06-01-2025
Duration : 2 years, 5 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2637 OF 2022
IN
S. C. SUIT NO. 2607 OF 2019
Smt. Priti Pradeep Shirsolkar and others )...Plaintiffs
Versus
Sujata Ramesh Gaikwad alias )
Sujata Pradeep Shirsolkar )
and another )...Defendants
Smt. Bhagyashri Bambardekar, Advocate for the plaintiffs.
Shri R.P.Wagh, Advocate for the defendant no.1.
Smt. Smita Hartalkar, Advocate for the defendant no.2.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 6th JANUARY, 2025.
ORDER
This notice of motion is moved by defendant no.2 to
dispense it from filing written statement or dismiss the suit as barred
under Section 9 of the Code of Civil Procedure [In short, ‘the Code’].
2. The applicant/defendant no.2 has come with case that it is
-- 1 of 7 --
N/m No. 2637/22 in S.C.Suit No. 2607/19. 2 Order.
statutory authority established under the provisions of Enemy Property
Act, 1968 [In short, ‘an Act’] functioning under Ministry of Home
Affairs, Government of India. The suit property is admittedly an enemy
property and regulated under provisions of an Act. Plaintiff no.1 claims
to be legally wedded wife of Late Pradeep Shirsolkar and original
tenancy was granted in his favour. Defendant no.1 entered into suit
premises alleging that she is wife of deceased Pradeep Shirsolkar. Hence
plaintiffs have instituted the suit to recover the possession of suit
premises from defendant no.1 and other relief.
3. It is further case of the applicant that it is empowered to
preserve, manage and control the enemy properties under Section 8 of
Act. The personal law and other customary rights are not applicable to
the suit property. An Act is amended by the Enemy Property
(Amendment and Validation) Act, 2017 and thereby expressly bar the
institution of the suit in civil court or authority in respect of enemy
property. Therefore this Court has no jurisdiction to entertain the suit. It
also press to dispense it from filing written statement. Hence this notice
of motion.
4. In reply, plaintiffs contend that the notice of motion is not
maintainable in the eyes of law. The purpose for which notice of motion
is filed is not just and proper. There is dispute in between the plaintiffs
and defendant no.1 in respect of heridatary rights over the property left
by Late Pradeep Shirsolkar. Therefore this Court has jurisdiction to
entertain the suit. Hence prayed to reject the notice of motion.
5. Defendant no.1 also filed reply to the notice of motion and
stated that she is tenant of the suit property. She has paid rent against
-- 2 of 7 --
N/m No. 2637/22 in S.C.Suit No. 2607/19. 3 Order.
the use of suit property and same is received by the defendant no.2.
Defendant no.2 has illegally received rent from the plaintiffs. Therefore
she made complaint on 13/11/2019. She is protected by Amendment
Bill March 2014 published on 16/03/2017 in Times of India. Hence
prayed to reject the notice of motion.
6. At the outset, it is apt to note that there is no dispute that
the suit property being Flat No.2/A admeasuring 250 sq.ft. building
named as Family Building, Dr. Batliwala Road, Parel, Mumbai is enemy
property and same is regulated by defendant no.2. Plaintiffs have come
with case that plaintiff no.1 is legally wedded wife of Late Pradeep
Shirsolkar whereas plaintiff no.2 and 4 are daughters of Pradeep
Shirsolkar and plaintiff no.3 is son. Defendant no.1 has no concern with
Pradeep Shirsolkar. Defendant no.1 had filed police complaint against
Pradeep Shirsolkar and the matter was reached upto Honourable High
Court. Deceased Pradeep Shirsolkar succumbed to pressure of
defendant no.1 and agreed to fulfill unlawful demand of defendant
no.1. However, defendant no.1 has no legal right over properties left by
Pradeep Shirsolkar.
7. It is further case of plaintiffs that defendant no.2 is
Custodian of suit property. Plaintiffs are legal heirs of Pradeep
Shirsolkar. Hence they entitle to enjoy the suit property. Hence the suit.
8. It is specific submission of learned advocate for defendant
no.2 that in view of provisions under Act, this Court has no jurisdiction.
He also relies upon decision of Honourable Apex Court in
T.Arivandandam V/s. T.V.Satyapal (1977 AIR(SC) 2421). In
T.Arivandandam (supra) the Honourable Apex Court observed that if on
-- 3 of 7 --
N/m No. 2637/22 in S.C.Suit No. 2607/19. 4 Order.
meaningful reading of the plaint it is manifestly vexatious and meritless,
the courts should exercise its power under Order 7 Rule 11 of the Code.
In view of observation of Honourable Apex Court, provisions under the
Act and in given facts of the case, it has to see whether there is
substance in submission of the applicant that this Court has no
jurisdiction to entertain the suit.
9. Section 8 of the Act empowers the Custodian i.e. the
applicant herein to take or authorise the taking of such measures as it
considers necessary or expedient for the purpose of preserving such
property till it is disposed of in accordance with the provisions of the
Act. It also empowers the Custodian to fix and collect rent, standard
rent, lease rent, licence fee in respect of enemy property. It also
empowers Custodian to secure vacant possession of the enemy property
by evicting an unauthorised or illegal occupant or trespasser and
remove such person or remove unauthorised construction, if any.
Similarly, Section 5B of the Act provides that Law of Succession or any
custom or usage not to apply to enemy property. It specifically provides
that no person shall have any right and shall be deemed not to have any
right in relation to such enemy property. It covers not only legal heirs
and successor of owner of the enemy property but also covers any
person. Section 19 of the Act immune the Custodian from legal
proceeding in any court for action taken by him under the Act.
10. At the cost of repetition, it is worthy to note that there is no
dispute that the suit property is enemy property and the
applicant/defendant no.2 is its Custodian. The plaintiffs have also filed
copy of rent receipt paid by Late Pradeep Shirsolkar. The copy is
attached to the plaint at Exh.G. It is issued by defendant no.2. Thus, it is
-- 4 of 7 --
N/m No. 2637/22 in S.C.Suit No. 2607/19. 5 Order.
admitted fact that the suit property is enemy property and it is
regulated and controlled by defendant no.2. Plaintiffs have instituted
suit to recover the possession of the suit property from defendant no.1
and to restrain defendant no.2 from transferring the suit property in
the name of defendant no.1 or any other person. These are the
substantial reliefs sought by the plaintiffs. In such case, the prime
question arises, whether this Court can restrain defendant no.2 from
transferring or creating third party interest over the suit property.
11. Admittedly, defendant no.2 is appointed under the
provisions of the Act. Thus, it is the statutory authority. Sub-section 3 of
Section 11 of the Act bestow the power of civil court under the Code
upon the Custodian to exercise its duty and power under the Act. Thus,
it is crystal clear that the applicant/defendant no.2 is statutory authority
and empowered to deal with the suit property. In such case, direction or
order regulating the work of defendant no.2 amount to interference in
its powers and jurisdiction. Such powers are not vested with this Court.
Obviously, it is not the case of the plaintiffs that defendant no.2 is
discharging its duty against the provisions of the Act. If it had such case,
even though this Court would have no jurisdiction to pass any directory
order to defendant no.2.
12. It is further necessary to note that clause (c) of Section 22A
of Act bars the suit. It provides that no suit or proceeding shall be
maintained or continued in any court for the enforcement of any decree
or order of such court or authority, directing divestment of enemy
property from Custodian with whom such property is vested under
Section 5 of the Act. Thus, the case of the plaintiffs that they are
successor of Late Pradeep Shirsolkar is not tenable against defendant
-- 5 of 7 --
N/m No. 2637/22 in S.C.Suit No. 2607/19. 6 Order.
no.2 in respect of the suit property. It is for defendant no.2 to take care
of the suit property if defendant no.1 has made encroachment. Such
case is not put forth by defendant no.2. In such case, there is no
propriety in entertaining the suit as the ultimate relief sought by the
plaintiffs cannot be granted by this Court.
13. It is brought on record that the Court of Small Causes at
Mumbai has passed order below Exh.35 in R.A.D. No. 605/2018
whereby the similar application moved by the applicant was rejected.
The Small Causes Court has rejected application of the applicant may
not be ground to reject this notice of motion. In such circumstances, it
would be just and proper to direct the both parties to bear their own
cost. In the result, following order is passed :
- ORDER -
1. Notice of Motion No. 2637/2022 is allowed.
2. Thus, the plaint stands rejected.
3. Accordingly the suit disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 06/01/2025. Mumbai.
1. Dictated on : 06/01/2025.
2. Transcribed on : 16/01/2025.
3. Placed for correction on : 16/01/2025.
4. Checked on : 16/01/2025.
5. Correction carried on : 16/01/2025.
6. Signed on : 16/01/2025.
7. Delivered to Certified :
Copy Section on
-- 6 of 7 --
N/m No. 2637/22 in S.C.Suit No. 2607/19. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15/02/2025. 1.29 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 06/01/2025.
Judgment/Order signed by P.O. on 16/01/2025.
Judgment/Order uploaded on 15/02/2025.
-- 7 of 7 --