Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2481/21 in S.C.Suit No. 555/21. 1 Order.
MHCC010081322021
Presented on : 14-10-2021
Registered on : 14-10-2021
Decided on : 07-01-2023
Duration : 1 years, 2 months, 24 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2481 OF 2021
IN
S. C. SUIT NO. 555 OF 2021
Ruchika Sawant nee Lynette Gonsalves )
and others )...Plaintiffs
Versus
Russi Ardeshir Jeejeebhoy and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 7th JANUARY, 2023.
Shri Manek Kalyaniwalla, Advocate for the defendants.
Shri N.A.Qureshi, Advocate for the plaintiffs.
ORDER
1. The defendants have taken out the notice of motion for
rejection of the plaint under Order VII Rule 11 of the CPC and for
staying Notice of Motion No. 1111/2021. Perused notice of motion,
affidavit in reply, affidavit in rejoinder and written submission filed by
learned counsel Shri Manek Kalyaniwalla the defendants. I have gone
through the suit proceeding and citations relied by both sides. Heard
learned counsel Shri Manek Kalyaniwalla for the defendants and
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N/m No. 2481/21 in S.C.Suit No. 555/21. 2 Order.
learned counsel Shri N.A.Qureshi for the plaintiffs.
2. On perusal of the record, it appears that the plaintiffs have
filed the suit by claiming themselves to be subtenants of the suit
premises consisting of at 211, Pilot Bunder Road, Near Afghan Church,
Colaba, Mumbai400005 (Henceforth referred to as 'the suit premises').
Defendants no.1 to 5 are Trustees of said Seth Jeejeebhoy Dadabhoy
Charity Fund (for short, 'the Trust'). Defendant no.6 is
agent/servant/manager of the Trust. It is case of the plaintiffs that the
defendants had created subtenancy in favour of their grandfather They
have further pleaded that their forefathers have been in occupation of
the premises for over a hundred years and the Modi’s had given them
the premises to live along with their families. Jackie Gonsalves prior to
1960. The plaintiffs are in process of filing suit for declaration of their
rights before the competent court. The plaintiffs have stated in para 6 of
the plaint that they have Adhaar Cards, ration cards and photographs in
order to show their possession over the suit premises. The plaintiffs
have elaborated the circumstances in which they are dispossessed. The
plaintiffs have filed the suit under Section 6 of the Specific Relief Act for
limited purpose of recovery of possession of the suit premises for their
alleged dispossession by the defendants.
3. The defendants have contended in affidavit in support that
the plaintiffs have no documents supporting the allegations about
allegedly creating a subtenancy by the tenant of the defendants. The
suit is without cause of action and it is manifestly vexatious and without
any merit. The plaintiffs have created an illusion of the cause of action.
The plaint does not disclose a complete cause of action of privity
between the plaintiffs and the defendants. The plaintiffs have
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N/m No. 2481/21 in S.C.Suit No. 555/21. 3 Order.
suppressed the fact that plaintiff no.1 was the principal servant of one
Dr S.S.Gothoskar.
4. The plaintiffs have contended in affidavit in reply that the
present suit has been filed under section 6 of the Specific Relief Act for
limited purpose of recovery of possession of the suit premises from
which they are unlawfully dispossessed by the defendants. Cause of
action is the defendants' unlawfully dispossessing the plaintiffs from the
suit property. The plaintiffs denied that they are principal servant of Dr.
S.S.Gothoskar. Assuming without admitting that the said allegation is
true, it would not render the suit liable for rejection. The defendants
want to create third party interest in the suit premises. Notice of motion
filed by the plaintiffs ought to be heard prior to the present Notice of
Motion.
5. The defendants filed affidavit in rejoinder with contention
that the plaintiffs were never in possession of the premises at all. In
order to bring the present suit within the jurisdiction of this Court, the
plaintiffs have purportedly claimed reliefs under the Specific Relief Act.
The plaintiffs have not specifically averred the nature of proceeding
purportedly undertaken by them before a competent court. The suit is
expressly barred under section 33 of the Maharashtra Rent Control Act,
1999. True substance of the plaint is relating to recovery of possession
and or protect their purported claim of subtenancy. The defendants
filed copy of Consent Terms filed in the Small Causes Court bearing
R.A.E.Suit No. 202/317 of 2013 which is decreed on 20/02/2013. It is
contention of the defendants that the plaintiffs are aware of these
consent terms. It is settled law that servants cannot claim possession of
the suit premises.
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N/m No. 2481/21 in S.C.Suit No. 555/21. 4 Order.
6. Learned counsel Shri Manek Kalyaniwalla referred Section
6 of the Specific Relief Act. According to him, present suit is without
cause of action and it is devoid of merit. He submitted that plaintiff no.1
was principal servant of one doctor S.S.Gothoskar and the suit is not
maintainable.
7. Learned counsel Shri N.A.Qureshi has given stress upon
whatsapp conversation in which reference of payment of electricity
charges has come in order to demonstrate rights of the plaintiffs in the
suit premises. It is case of the plaintiffs that lock over the lock is fixed
by the defendants. He also relied upon Adhaar Cards and Ration Cards
to support the plaintiffs' case of possession over the suit premises.
REASONS
8. If forefathers of the plaintiffs were in possession of the suit
premises as per contents in the plaint, the plaintiffs should have brought
on record any document to show their tenancy rights either in the form
of the tenancy agreement or rent receipt. The plaintiffs have claimed to
be subtenant of the suit premises, but they have not clarified from
whom they have received subtenancy of the suit premises. It has been
mentioned in para 4a that Modi's have given them the premises to live
alongwith their families. Full name of Modi's is not mentioned in the
plaint. If the plaintiffs are claiming to have been residing in the suit
premises with permission of Modi's, Consent Terms executed between
Sorab K. Modi and Dr. Sharad Shripad Gothoskar and the defendants
are relevant. Consent Terms filed in the Small Causes Court bearing
R.A.E.Suit No. 202/317 of 2013 reveal that upon demise of the
defendants i.e. Sorab K. Modi and Dr. Sharad Shripad Gothoskar, the
plaintiffs (present defendants) shall have the absolute right and shall
enter upon the suit premises. Description of the suit premises
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N/m No. 2481/21 in S.C.Suit No. 555/21. 5 Order.
mentioned in the present plaint and in the Consent Terms is similar. It
shows that the said Consent Terms are in respect of the suit premises.
9. The plaintiffs can be said to be in permissive possession of
the suit premises as per contents in para 4a of the plaint. It is not case
of the plaintiffs that they are trespassers of the suit premises. If all
these aspects are considered together, the plaintiffs have suppressed
material facts directly touching to the core aspects of possession over
the suit premises. The plaintiffs have placed on record Adhaar Cards
and rations cards to show possession over the suit premises. With this
regard, learned counsel Shri Manek Kalyaniwalla for the defendants has
relied upon order of ministry of consumer affairs, food and public
distribution dt. 20.03.2015 as per which ration card shall not be used as
a document of identity or proof of residence. Subtenancy of the
plaintiffs over the suit premises is not made out from any of the
documents placed on record. In such circumstances, the defendants
cannot be said to have acted without following due process of law for
taking possession of the suit premises in consonance with the Consent
Terms filed with the rejoinder.
10. Learned counsel Shri Manek Kalyaniwalla has relied upon
observations of Hon'ble Supreme Court in the case of Maria Margarida
Sequeira Fernandes And Others V/s. Erasmo Jack De Sequeira
(Dead) Through LRs (2012) 5 Supreme Court Cases 370 in which
aspect of possession to be pleaded is elaborated in para 69 and 70. The
plaintiffs in the case in hand have not furnished details regarding
possession as per requirements in para 70 in this case. Para 94 and 97
in Maria’s case state that possession of a servant or agent is that of his
master or principal as the case may be for all purposes and the former
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N/m No. 2481/21 in S.C.Suit No. 555/21. 6 Order.
cannot maintain a suit against the latter on the basis of such possession.
He also relied upon observations in para 23.8, 23.2, 23.6, 23.9 in the
case of Dahiben V/s. Arvindbhai Kalyanji Bhanusali (Gajra) Dead
Through Legal Representatives And Others (2020) 7 Supreme Court
Cases 366 to state that cause of action is not made out from contents in
the plaint and the plaint is liable to be rejected. In para 23.11 in
Dahiben's case, Hon'ble Supreme Court has held that the test for
exercising the power under Order 7 Rule 11 is that if the averments
made in the plaint are taken in entirety in conjunction with the
documents relied upon, would the same result in a decree being passed.
He also relied upon para 18 in the case of Madanuri Sri Rama
Chandra Murthy V/s. Syed Jalal (2017) 13 Supreme Court Cases
174 and submitted that the property in the said matter was Wakf
property and suit was filed in the Civil Court. As separate law was
applicable, the plaint was rejected by the Hon'ble Supreme Court by
setting aside the orders of the Tribunal and the Hon'ble High Court. He
also relied upon paras 14 to 16, 18, 22 and 23 in citation of United
India Insurance Co. Ltd. V/s. Vulcan Association and others
2012(1) Mh.L.J. 687 to state that suit by tenants to claim perpetual
injection has to be filed in the Court of Small Causes.
11. Learned counsel Shri N.A.Qureshi relied upon observations
of Hon'ble Bombay High Court in the case of Shiavax C. Cambata And
Another V/s. Sunderdas Ebji ILR 1951 (Bombay Series) 145 in
which Section 9 of the Old Specific Relief Act corresponding to present
Section 6 of the Specific Relief Act is considered in respect of
jurisdiction of the Court. Suit under Section 6 of the Specific Relief Act
is said to have been maintainable before this Court. It is observed that
the object of Section 9 is to protect possession without regard to the
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N/m No. 2481/21 in S.C.Suit No. 555/21. 7 Order.
title or the origin of possession. In the light of discussion in above paras,
the plaintiffs could not explain nature of their possession and they are
in permissive possession. Therefore, ratio in this citation is not
applicable to facts of the case in hand.
12. In short, the plaintiffs have asserted subtenancy rights in
the suit premises without explaining particulars of creation of such sub
tenancy i.e. name of the defendant, date of creation of subtenancy,
documents pertaining to lawful tenant of the suit premises etc.. In
addition to it, they have proceeded to state that the suit premises is
given to them for residence alongwith their families. This statement in
para 4a of the plaint shows that the plaintiffs were in permissive
possession of the suit premises. In short, no legal right was accrued in
respect of the suit premises in favour of the plaintiffs. Contents in the
plaint are sufficient to show that they have no legal right to continue
their possession over the suit premises. In such circumstances, the
plaintiffs do not have cause of action against the defendants. With this
regard, observations of Hon'ble Supreme Court in the case of Behram
Tejani And Others V/s. Azeem Jagani (2017) 2 Supreme Court
Cases 759 are relevant which reads as under :
“11. Having gone through the record, the
submission of the appellants that the grandmother
of the respondent though did not have any right
qua the premises was permitted to occupy purely
out of love and affection is not without merit. The
status of the grandmother is thus of a gratuitous
licensee and that of the respondent is purely of a
relative staying with such gratuitous licensee.
12. Rame Gowda was a case in which two
adjoining owners were claiming independent right
of ownership in respect of a strip of land in
between their holdings. That piece of land was in
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N/m No. 2481/21 in S.C.Suit No. 555/21. 8 Order.
possession of the plaintiff and as such while
dealing with the controversy, this Court held that
a person in peaceful possession is entitled to retain
his possession. However, while dealing with the
concept of “settled possession” it was observed in
para 9 as under: (SCC p. 776)
“9. … The “settled possession” must
be (i) effective, (ii) undisturbed, and
(iii) to the knowledge of the owner or
without any attempt at concealment by
the trespasser. The phrase “settled
possession” does not carry any special
charm or magic in it; nor is it a
ritualistic formula which can be
confined in a straitjacket. An
occupation of the property by a person
as an agent or a servant acting at the
instance of the owner will not amount
to actual physical possession.”
13. The matter was further elaborated in
subsequent decision of this Court in Maria
Margarida as under: (SCC pp. 39697, para 97)
“97. Principles of law which emerge
in this case are crystallised as under:
(1) No one acquires title to the
property if he or she was allowed to
stay in the premises gratuitously. Even
by long possession of years or decades
such person would not acquire any
right or interest in the said property.
(2) Caretaker, watchman or
servant can never acquire interest in
the property irrespective of his long
possession. The caretaker or servant
has to give possession forthwith on
demand.
(3) The courts are not justified in
protecting the possession of a
caretaker, servant or any person who
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N/m No. 2481/21 in S.C.Suit No. 555/21. 9 Order.
was allowed to live in the premises for
some time either as a friend, relative,
caretaker or as a servant.
(4) The protection of the court
can only be granted or extended to the
person who has valid, subsisting rent
agreement, lease agreement or licence
agreement in his favour.
(5) The caretaker or agent holds
property of the principal only on behalf
of the principal. He acquires no right or
interest whatsoever for himself in such
property irrespective of his long stay or
possession.”
14. Thus, a person holding the premises
gratuitously or in the capacity as a caretaker or a
servant would not acquire any right or interest in
the property and even long possession in that
capacity would be of no legal consequences. In the
circumstances, the City Civil Court was right and
justified in rejecting the prayer for interim
injunction and that decision ought not to have
been set aside by the High Court. We, therefore,
allow the appeal, set aside the judgment under
appeal and restore the order dated 2942013
passed by the Bombay City Civil Court in Notice of
Motion No. 344 of 2013 in Suit No. 408 of 2013.”
13. In the light of above discussion, the suit is liable to be
rejected for want of cause of action. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 2481/2021 is made absolute in terms
of prayer clause (a).
2. Suit no. 555/21 is rejected under Order 7 Rule 11 (a) of
the C.P.C.
3. Notice of Motion No. 1111/21 is disposed of having
become infructuous due to rejection of the plaint.
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N/m No. 2481/21 in S.C.Suit No. 555/21. 10 Order.
4. Proceeding of Suit no. 555/21, NM No. 1111/21 and NM
No. 2481/21 are closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 07/01/2023. Mumbai.
1. Dictated on : 07/01/2023.
2. Transcribed on : 09/01/2023.
3. Corrected at : 10/01/2023.
4. Signed on : 11/01/2023.
5. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11/01/2023. 1.29 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 07/01/2023.
Judgment/Order signed by P.O. on 11/01/2023.
Judgment/Order uploaded on 11/01/2023.
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