Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1647/19(Suit 998/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1647/2019
IN
S.C. SUIT NO. 998/2019
Smt. Tajma Khatoon Anis Ahmed Choudhary ..Plaintiff
V/s.
Abdul Gani Nizamuddin Shaikh ..Defendant
Appearance:
Adv. Mr. B.P. Shukla @ Adv.Mr. Yadav for plaintiff.
Adv. Mr. Sanjeev Kumar Rapolu for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 15.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
seeking adinterim directions against defendant restraining him from
creating third party right in respect of the suit premises i.e. a structure
admeasuring 16 X 50 ft. made of B.M. Wall and A.C. Sheet roof,
situated at CTS No.1(part), near Riyaz Compound, new Gautam Nagar,
Part No.4, Ghatkopar Mankhurd Link Road, Mumbai 400 043. The
plaintiff has also prayed for appointment of a Court Receiver under
Order 40 of CPC during pendency of the suit for taking possession of
the suit premises and for its maintenance till the Court decides rights of
the parties. The Motion is supported by an affidavit of plaintiff Smt.
Tajma Khatoon Anis Ahmed Choudhary. The defendant has appeared in
the proceeding through Counsel and resisted the Motion by filing
affidavit in reply. I have perused the same.
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2. I have heard Ld. Counsel for the plaintiff and Ld. Counsel
for the defendant at length on the Motion.
3. It is submitted on behalf of the plaintiff that, he has
approached the Court by filing present suit u/s. 6 of Specific Relief Act
for recovery of possession of the suit premises. It is submitted that the
plaintiff was dispossessed from the suit premises on 20.3.2019. Prior to
that the plaintiff was in lawful possession of the suit premises i.e.
structure 16' X 50', as mentioned above. Copy of location plan is
submitted on record along with the suit vide Ex.A.
4. It is alleged on behalf of the plaintiff that, the defendant is
a trespasser in the suit premises and had taken forceful possession of
the same from the plaintiff without following due process of law. The
suit premises is old and existing since prior to year 2000 situated in
hutment area. The occupants of the property were censused by the
competent authority during census carried out in the year 2000 and
photo pass and census receipt bearing no.0709636 dated 27.7.2000 was
also issued along with census receipt no.709634 dated 27.7.2000 in
favour of the plaintiff, copies of which are filed on record with the suit
vide Exh.B.
5. It is submitted on behalf of the plaintiff that she was
residing in rear portion of the suit premises and in the front portion the
she was carrying on her business of selling building material in the
name and style 'SABA TRADERS'. Necessary certificate was obtained
from the BMC i.e. shop and establishment certificate by the plaintiff,
copy of which is filed on record with the plaint vide Exh.'C'. The
plaintiff has also filed birth certificate of her daughter Umme Kulum
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who born in the year 2014, copy of which is annexed with the plaint
vide Ex.'D'. The plaintiff has also filed on record several documents
along with Exh.'E' to 'I', which consists of electricity bill, tax certificate
of enrollment, copy of FIR dated 28.4.2018, copies of proceeding u/s.
144 and 145 of Cr.P.C bearing Misc. Appln. No.1146/M of 2018 and
police complaint at Deonar police station dated 8.4.2019 etc. for
showing her previous possession.
6. On the above factual background, it is submitted on behalf
of the plaintiff that, the defendant was having good relations with the
local gundas and politicians and with their help, he had taken forcible
possession of the suit premises from the husband of the plaintiff and her
brother in law illegally on 10.8.2018. Therefore, the husband of the
plaintiff and her brother in law Shafi Ahmed had filed a Suits bearing
no. 2803 and 2804/18 in respect of their business premises against the
defendant and took out Notice of Motion seeking interim relief, but
Hon'ble Court declined to appoint court receiver.
7. On this background, it is urged on behalf of the plaintiff
that, till court adjudicates upon the rights of the parties in the present
suit, it is most necessary to appoint a Court Receiver under Order 40 of
CPC for taking possession of the suit premises for its maintenance and
for protection, and the defendant be restrained by temporary injunction
from selling or creating third party interest in respect of the suit
premises during pendency of suit. If interim relief is not granted to the
plaintiff then the plaintiff will suffer irreparable loss, which cannot be
compensated in terms of money. On the other hand, no prejudice will
be caused to the defendant because he is a trespasser and has forcibly
taken possession of the suit premises from the plaintiff, as alleged in the
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plaint.
8. Per contra, Ld. Counsel for the defendant has relied on the
affidavit in reply and submitted that, defendant Abdul Gani Nizamuddin
Shaikh has made a statement on affidavit before this court while
opposing the Motion. It is submitted that, present Notice of Motion
taken out by the plaintiff is without any merit and substance. It has
been filed only to bring pressure on the defendant and to harass him. It
is liable to be dismissed with exemplary costs. It is further submitted
that, present claim of the plaintiff in the suit is malafide, illegal and not
tenable in law. The plaintiff has no right, title or interest in respect of
the suit premises and she has failed to make out prima facie case and
balance of convenience is her favour for grant of the relief claimed.
9. Ld. Counsel for the defendant elaborated his submissions
by referring to the facts and circumstances of the case appearing from
the documents on record and argued that, the plaintiff has produced
false and bogus documents only to mislead the court. The defendant
has denied all the allegations in the plaint and opposed the Motion by
filing an affidavit. He pointed out that the plaintiff had been arrested
under various FIRs registered against her at different police stations for
commission of offence of keeping and fabrication of government
documents on record. Therefore, those documents cannot be taken into
consideration as true and reliable evidence before the court. It is
subject matter of trial and adjudication by the court.
10. Ld. Counsel for the defendant also placed reliance on the
written statement filed on record and opposed the Motion. He
submitted that, if any adinterim relief is granted to the plaintiff it will
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cause serious prejudice to the defendant and it will cause irreparable
loss to him and cannot be compensated in terms of money. Hence,
Notice of Motion is liable to be rejected.
11. In his reply submission, Ld. Counsel for the plaintiff has
referred to documents filed on record along with the plaint, more
particularly the FIR dated 28.4.2018 lodged by the defendant against
the plaintiff and her relatives and statement of defendant recorded by
the police on 28.4.2018. Copy of FIR dated 10.8.2018 and statement of
the complainant in said FIR Vinod Kedare dated 10.8.2018, wherein the
complainant has deposed that while he, along with brother of the Abdul
Gani Shaikh, had been to the suit premises in the afternoon, somebody
had made a phone call to the police control room and informed that
one unknown person along with person had come came to the suit
premises and started quarreling with him. He tried to explain that he
had taken premises on rent. But, the unknown person alongwith his
accomplices had abused and assaulted them and immediately police van
reached the spot and they were taken to police station for lodging
complaint.
12. Considering the above facts and circumstances, Ld Counsel
for the plaintiff has submitted that, the apprehension of the plaintiff is
substantiated by facts and material on record and interim order giving
protection to the plaintiff has become necessary.
13. I have gone through the prima facie material on record and
taken into consideration oral submissions made by Ld. Counsels for
both sides. I have also gone through the various authorities of Hon'ble
Bombay High Court, submitted and relied upon by Ld. Counsel for the
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plaintiff in support of his submission. They are as follows:
1. Meghji Jetha Shah V/s. Kalyanji Nanji Shah
(1987 AIR (Bombay) 273)
2. Anwar Faramosh Khan V/s. Mahendrakumar
Jugalkishore Gupta (2004 (3) Mh.L.J.) 315
3. Deepak Eknath Dhavan V/s. Anwar Faramosh
Khan and another (2004 3 ALL MR 31)
4. Cian De Souza V/s. Arun Gunjal (2006 MhLJ
687)
5. Khushnuma Ibrahim Khan & another V/s.
Asadullah Khan alias Sameer Khan and others
(2013 2 BomCR 461)
14. I have gone through the above authorities and find that, in
the authority at Sr. No.1 i.e. Meghji Jetha Shah V/s. Kalyanji Nanji
Shah (supra), in para 8, Hon'ble Bombay High Court has observed that,
in a suit for recovery of possession u/s. 6 of Specific Relief Act if
plaintiff brings on record evidence of his wrongful dispossession it
would be just and proper to appoint a court receiver to take over the
possession of the premises to protect interest of the plaintiff.
In the second authority i.e. Anwar Faramosh Khan V/s.
Mahendrakumar Jugalkishore Gupta (supra), Hon'ble Bombay High
Court has considered similar case u/s. 6 of Specific Relief Act and
passed an order, under Order 40 Rule 1 of CPC, for appointment of
Court receiver. It is held that, when evidence and record shows that the
plaintiff was dispossessed without following due process of law and that
he was in possession of the suit property immediately before filing of
the suit, the plaintiff is entitled for appointment of court receiver.
In the third authority i.e. Deepak Eknath Dhavan V/s.
Anwar Faramosh Khan and another (supra), the plaintiff had
established long standing possession and unlawful dispossession in a
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case before the Ld. Single Judge of Hon'ble Higih Court and he had
rightly held the Notice of Motion for appointment of Court Receiver
absolute. It was held in appeal that order was legal and proper and
appeal was dismissed. However, the preliminary objection about
maintainability of the appeal was not decided.
In the fourth authority i.e. Cian De Souza V/s. Arun
Gunjal (supra), Hon'ble High Court has confirmed above view
regarding appointment of court receiver in a case of dispossession and
suit for restoration of the possession u/s. 6 of Specific Relief Act. The
order of appointment of court receiver was confirmed.
In the last and fifth authority i.e. Khushnuma Ibrahim
Khan & another V/s. Asadullah Khan alias Sameer Khan and others
(supra), Hon'ble Bombay High Court, in para 55 has observed that, the
order of appointment of court receiver in the said case was legal and
proper. However, during pendency of the appeal, Ld. Single Judge of
the Hon'ble High Court had passed an order rejecting prayer of
appointment of court receiver but passed order of injunction restraining
respondent from creating third party right in the suit flat, during
pendency of the appeal. After hearing both sides, Hon'ble High Court
had come to the conclusion that appeal deserves to be allowed and
order dated 3.4.2012 passed by Ld. Single Judge in Motion was set
aside and the order of appointment of court receiver was confirmed.
15. After considering rival contentions of both sides, if the ratio
of the above authorities is applied to the facts of the present case, it is
clear that, law is very clear on the point that even in the case where the
plaintiff approaches this court for recovery of possession u/s.6 of
Specific Relief Act and brings on record prima facie material to show his
lawful and settled possession before filing of the suit i.e. before his
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dispossession, without following due process of law, then in such
circumstances the plaintiff is entitled for seeking appointment of court
receiver during pendency of suit.
16. However, I am of the considered opinion that the facts of
present case are somewhat different and the present case involves
disputed facts, which cannot be appreciated and nothing can be
concluded about prima facie case at this stage without sufficient
material and evidence on record. The defendant has contested the suit
in WS and also opposed the Motion by submitting affidavit in reply. Ld.
Counsel for the defendant has relied upon the copy of FIR bearing no.
222/18. and 223/18 and respective pleadings in that regard in paras 10
and 11 of WS. Similarly, it is clear from the pleadings of the parties and
rival contentions that, the fact of previous possession of the plaintiff
over the suit premises is itself seriously disputed in the suit by the
defendant. Therefore, I am of the view that, the ratio of the above cited
and relied upon authorities by Ld. Counsel for the plaintiff are not
applicable to the facts of the present case.
17. In view of above discussion, I hold that the plaintiff has
failed to make out a prima facie case and balance of convenience for
getting order of appointment of 'court receiver' or order of temporary
injunction restraining the defendant from selling or creating third party
interest in the suit premises, during pendency of suit, as prayed in the
Motion. If any interim order, as prayed by the plaintiff, is passed at this
stage it will cause serious prejudice to the rights of the defendant and
such injuries cannot be compensated in terms of money. Hence, I hold
that, this is not a fit case for allowing the Motion, as prayed before the
Court. Hence, I proceed to pass following order:
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ORDER
1 Notice of Motion No.1647/2019 is hereby dismissed with
costs and disposed of accordingly.
2. Since present Suit is filed u/s. 6 of Specific Relief Act, it
is of summary in nature involving necessary enquiry,
therefore hearing of the Suit is expedited.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 15.11.2019 Gr. Bombay (C.R. 03)
Dictated on :15.11.2019
Typed on : 16.11.2019
Draft given to HHJ on 16.11.2019
Signed by HHJ on : 16.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 18.11.2019
TIME: 12.15 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 15.11.19
Judgment/ order signed by P.O on 16.11.19
Judgment/ order uploaded on 18.11.19
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