Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1150/2019 ..1.. Suit No.9484/1989
CNR No.MHCC0164182019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1150 OF 2019
IN
SUIT NO.9484 OF 1989
Killick Nixon Limited .. Plaintiffs
Versus
Ramaben Laljibhai Kapadia (since deceased)
1(a) Jagdish Laljibhai Kapadia and others .. Defendants
And
Forbes & Company Limited & Others .. Applicants
Mr. Kevin A. Chettiar, advocate for plaintiffs
Ms. Jyoti R. Thakkar, advocate for applicants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 12th July, 2019
ORAL ORDER
Chamber summons is taken out by applicants for grant of leave
to them to join Court Receiver (defendant No.2) as formal party as
defendant No.3 in pending suit bearing No. TE & R No.23/23 of 2003
before Small Causes Court.
2. It is the contention of applicants that they are coowners /
landlords of Lyndewode House, Bomanji Petit Road, Mumbai26.
Plaintiff was a monthly tenant in respect of flat No.5 (In short, 'suit
flat') situated on 2nd floor and a Garage on the ground floor of said
Lyndewode House. By Advocate's notice dated 14.06.2001, applicants
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have terminated monthly tenancy of plaintiff. However, plaintiff failed
to hand over possession of suit flat to applicants. Therefore, applicants
filed suit No. TE & R No.23/23 of 2003 before Small Causes Court
against plaintiff and defendant No.1 (both herein). In said suit, written
statement was filed by defendant No.2 contending that he was
occupying the suit flat since the year 1971 as protected licensee, lawful
subtenant of defendant No.1 (plaintiff herein) and defendants in said
suit have also contended that Court Receiver High Court, Bombay was
appointed as a Receiver in respect of the suit flat. It is further contended
that in present suit defendant No.1 has taken out Notice of Motion
No.109 of 2002 with a prayer that applicants be impleaded as party to
present suit. But said prayer has not been granted by this Court.
3. It is further contended that applicants have joined defendant
No.1 in the suit before Small Causes Court as she was in possession of
suit flat. Applicants have no privity of contract either with original
defendant No.1 or with defendant Nos.1(a) to 1(d). Applicants' claim in
the suit before Small Causes Court is to evict plaintiff and defendant
Nos.1(a) to 1(d) and to pay mesne profit. Since the Court Receiver High
Court Bombay is appointed in present suit and to realise possession of
suit flat, applicants are advised to join Receiver as a party to the suit
before Small Causes Court.
4. It is further contended that defendant No.1 has filed Criminal
Application No.151 of 1980 before the Hon'ble High Court. Parties to
the said application entered into compromise by filing consent term. By
consent of the parties, Court Receiver High Court Bombay was
appointed as Receiver of the suit flat. Defendant No.1 was appointed as
agent of the Receiver with regard to occupation, use and enjoyment of
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C/S No.1150/2019 ..3.. Suit No.9484/1989
said premises with all fixtures, furnitures, refrigerators, air conditioner,
cooking range etc. Plaintiff receives compensation, rent, outgoings,
charges from defendant No.1 till their dispute is over and for
management, protection and preservation of the property by consent of
the parties. Court Receiver was appointed by the Hon'ble High Court.
5. It is further contended that applicants are having right, title and
interest in suit flat being coowners of the property. Dispute between
applicants and plaintiffs and defendants (both herein) is pending before
the Small Causes Court. Court Receiver was appointed with a view to
preserve the properties by exercising control and supervision through
officer of the Court till the rights of plaintiff and defendants herein are
finally adjudicated. Applicants are nowhere concerned with the dispute
between the parties in present suit. They are concerned only to the
extent of realising vacant possession of the suit flat and mesne profit
from 01.08.2001 till vacant and peaceful possession of suit flat is
obtained by following due process of law. In these circumstances they
are advised to join Court Receiver in the suit before the Small Causes
Court. Hence, applicants urged in above terms.
6. Plaintiff filed reply and objected to the chamber summons. It is
contended that applicants are well aware that court Receiver is
appointed by Hon'ble High Court Bombay in Special Criminal Petition
No.151 of 1980 wherein the possession of suit premises vests in learned
Court Receiver and original defendant No.1 was in possession of suit
premises in the capacity of agent of the learned Court Receiver Bombay.
Therefore, it is contended that this Court cannot grant relief sought in
chamber summons. Accordingly, they prayed for dismissal of chamber
summons.
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7. Perused chamber summons, affidavit in support of it, reply,
plaint and documents annexed to it. Heard learned counsel for parties.
They advanced their arguments as per respective contentions of parties.
8. Learned advocate for plaintiff placed reliance upon the authority
in the case of Everest Coal Company Pvt. Ltd. Vs. State of Bihar and
Others, AIR 1977 Supreme Court 2304 wherein it is held that, “The
Jurisdiction to grant leave is undoubted and inherent, but not based on black
letter law in the sense of enacted law. Any litigative disturbance of the Court's
possession without its permission amounts to contempt of its authority and the
wages of contempt of Court in this jurisdiction may well be voidability of the
whole proceeding. Equally clearly, prior permission of the Court appointing the
Receiver is not a condition precedent to the enforcement of the cause of action.
Nor is it so grave a vice that later leave sought and got before the decree has been
passed will not purge it. If, before the suit terminates, the relevant court is
moved and permission to sue or to prosecute further is granted, the requirement
of law is fulfilled. Of course, failure to secure such leave till the end of the lis
may prove fatal.”
9. There is no dispute about the ratio laid down in the said
authority. It is clear from the said authority that leave is to be sought
from the Court which has appointed Receiver in relation to the
property. In present case from the certified copy of consent term in
Special Criminal Petition No.151 of 1980 filed before Hon'ble High
Court, it is clear that parties to said petition have consented for
appointment of Court Receiver. Even plaintiff in plaint para 1 has
contended about appointment of Court Receiver by Hon'ble High Court
on 12th November, 1980 pursuant to consent terms filed in Special
Criminal Petition No.151 of 1980. Even applicants in their affidavit in
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support of chamber summons in para 12 have mentioned said fact. It
seems that after filing of suit, plaintiff has obtained leave after
impleadment of Court Receiver in present suit. This fact itself indicate
that Court Receiver in relation to the suit flat has not been appointed by
this Court. Even nothing is placed on record by the applicants to point
out that Court Receiver in relation to suit flat has been appointed in
present proceeding by this Court. It is admitted fact that the
appointment of Court Receiver was made in Criminal Petition No.151 of
1980. In the facts of matter relying on authority in the case of Everest
Coal Company (cited supra) it is incumbent upon applicants to seek
leave from concerned Court which has appointed Receiver. As this
Court has not appointed Court Receiver in present proceedings in
relation to suit flat so question of grant of leave by this court to implead
Court Receiver as party in Suit No.TE & R No.23/23 of 2003 before
Small Causes Court does not arise. Hence, pass following order:
ORDER
Chamber Summons No.1150 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 12.07.2019 Gr. Bombay
Typed on : 12.07.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16.07.2019, 4.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
12.07.2019
JUDGMENT/ORDER signed by P.O.
on
15.07.2019
JUDGMENT/ORDER uploaded on 16.07.2019
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