Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2388 OF 2018
CNRMHCCO10085862018
IN
S.C.SUIT NO. 2794 OF 2018
CNR MHCC01007700 2018
1.Kurla Education and Welfare Trust and Others. )....Plaintiffs.
V/s.
1. Abdul Matin Khan & Anr. )...Defendants.
Adv. B.M.Shaikh for the plaintiffs.
Adv. Rakesh Kumar with Adv. Vijendra Jabra for the defendants
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.02)
DATE : 16/11/2018.
ORAL ORDER
This notice of motion is taken out by the plaintiffs with the
following prayers:
a) Pending the hearing and disposal of the above suit, this
Hon'ble Court be pleased to pass an order and injunction against the
defendants and direct the defendants to hand over to the plaintiffs, all
the keys to all the locks placed by the defendants on the gates and
entrances of the School in the suit premises;
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b) Pending the hearing and disposal of the above suit, this
Hon'ble Court be pleased to appoint the Court Receiver, High Court
Bombay or any other fit and proper person as Receiver of the suit
premises with all powers under Order 40 Rule 1 of the Code of Civil
Procedure, 1908 and further direct the Court Receiver to break open the
locks placed by the defendants on the School premises and put the
plaintiff no.1 into possession of the suit premises for running the said
School;
(c) Pending the hearing and final disposal of the above suit,
this Hon'ble Court be pleased to pass an order and injunction
temporarily restraining the defendants, their servants, agents or any
persons acting on their behalf or claiming under them from entering
into or upon the suit premises and the School and / or interfering with
the plaintiff no.1's settled and peaceful use, occupation and possession
over the suit premises for the purpose of running the School;
2. This notice of motion is supported by an affidavit being
executed by Mohammed Tahir Khan who's occupation is shown as
business and residing at building no.42/12, LIC Colony, V B. Nagar,
Kurla (W), Mumbai 400 070. The defendants on record has strongly
opposed the notice of motion by filing reply on affidavit. The parties to
the suit have from time to time filed various affidavits and documents
on record. Admittedly, in the present case Caveat was been filed. Till
this date the Caveator was not added as party defendant to the suit.
Moreso, till this date, the plaintiff has not taken any steps for the
registration of the main suit.
3. I have carefully gone through the pleadings and the
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submissions of the Caveator.
Brief facts:
4. The subject matter of the suit is the school by name
“Alfalah English School” which is being run on the premises opposite
building no.11, L.I.G. Colony, Vinoba Bhave Nagar Police Station, Near
Vinoba Bhave Nagar, Kurla (W), Mumbai 400 070 (for the purpose of
brevity hereinafter referred to as 'Suit Premises'). It is the case of the
plaintiff that it is public trust created in the year 2005 with charitable
and pious objects and plaintiffs no. 2 to 6 are the trustees of plaintiff
no.1. In the said school , of about 1600 students are studying and 50
teachers and 20 non teaching staffs are serving. From the suit
premises, preprimary , primary and secondary school are run with
school office, store room and one staff room. Initially the suit premises
was in possession of DairatulFalah Education Society who used to, run
and manage this school from suit premises. It is also contended that
defendants are also trustees of Dairatul Falah Education Society and
were authorised to carryon this school. As per the plaintiff, all the
necessary permissions for running the school has been granted from
several Government and Semi Government authorities and the plaintiffs
since the year 2006 are in possession of the suit premises.
5. It is the case of the plaintiff that, when on 21st June, 2018
when the watchman of the said school was about to open the locks on
the gate of the said school, the defendants snatched the locks and keys
from the watchman and placed their own locks on the gate of the said
school. It is also submitted that the defendants prevented the entry of
the teachers, students and other employees of the school. Regarding
the said incident, the matter was reported to the police authorities.
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According to the plaintiffs, they are entitled for possession of the suit
premises. The main suit is for mandatory injunction directing the
defendants to remove their locks from the gate of the suit premises and
restraining them from disturbing the possession of the plaintiffs without
following the due process of law. It is also submitted that , 1600
students are studying at the risk of losing an entire academic year due
to the wrongful acts of the defendants. This notice of motion is
therefore preferred for grant of temporary mandatory injunction with
relief of removing lock and putting back the plaintiffs into possession
of the plaintiffs.
6. The defendants have filed the reply thereby strongly
opposing the plaintiffs case. It is submitted that there is no proper
description of the suit property so as to identify the same. It is also
submitted that, no copy of resolution is placed on record authorising to
file this suit. It is further submitted that the suit itself is hit by the
provisions of section 50 and 51 of the Bombay Public Trust Act as no
consent of Charity Commissioner is obtained prior to filing of the suit.
7. It is also submitted that , in the year 1988 father of the
defendant no.1 Mr. Rashid Khan other trustees formed Dairatul Falah
Education Society. The structure was situated on property bearing
survey no. 262/Hissa No.1 and C.T.S. No. 923(Part) and given
assessment no. L2615(6). It is further submitted that defendants are
not at all concerned with Alfalah English School. It is further submitted
that the suit premises is in occupation and possession of Mr. Abdul
Rashid Khan and his family members who are not party to the suit. It is
also contended that family members of Abdul Rashid Khan are taking
care of the suit premises. It is specifically denied that Alfalah English
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School is being run from the suit premises . It is contended on behalf of
the defendant that the plaintiffs have deliberately with malafide
intention suppressed the material facts and documents and have made a
false statement on oath to mislead the Court. Lastly, it is submitted that
the documents which are placed on record by the plaintiff are with
regard to the school which is in run at another place i.e., at land bearing
C.T.S.No.938 (Part) ,admeasuring about 1168.85 sq.mts. and it is been
run by Kurla Education and Wellfare Trusts i.e. plaintiff no.1. All the
adverse allegations has been denied in toto. It is submitted that lock on
the main gate of suit premises was always put up by Mr. Abdul Rashid
Khan and his family members. It is specifically denied that defendants
seek to extort money from the plaintiff. Lastly,it is submitted that since
there was no school as alleged being run in the suit premises and as the
suit premises belongs to Mr. Abdul Rashid Khan, who is in control and
possession, no question of defendants attempting to dispossessed the
plaintiff arises.
8. In the present case, the Caveat is being filed Mr. Abdul
Rashid Khan who claims to be in the control and possession of the suit
premises. It is submitted that the defendants are not at all concerned
with Alfalah English School. It is also submitted that the suit structure
bears assessment no. L2615(6) lying ,being and situated on property
bearing survey no. 262 Hissa No.1, C.T.S. No. 923(Part) of village Kurla
opposite LIC ,building no.11 Vinoba Bhave Nagar, Pipe Road, Kurla
and is in actual occupation and physical possession of the Caveator. It
is also submitted that the Caveator is taking care of the suit premises
and is in possession and control of the same. It is also submitted that
locks and keys were always remained in control and possession of
Abdul Rashid Khan (Caveator).
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9. I have heard learned advocate Shri B.M.Shaikh for the
plaintiff and learned advocate Shri Rakesh Kumar for the defendants
with Advocate Jabra for the Caveator, at length. I have carefully
perused all the documents on record.
10. Upon rival pleadings of the parties and Caveator following
points arise for my determination and I have recorded my findings
against it for the reasons stated below:
Points for determination Findings
1. Whether the plaintiff has made
out prima facie case for grant of
temporary injunction ?
In the negative
2 In whose favour balance of
convenience lies ?
In favour of the
Caveator.
3. Who will suffer irreparable loss, if
injunction is refused?
No one
4. What order ? Notice of motion stands
dismissed as per final
order.
REASONS
11. The plaintiffs, defendants as well as Caveator has filed
several affidavits and documents , I have carefully gone through all the
affidavits, additional affidavits, list of documents and additional list of
documents. Having regard to the submissions advanced at the bar ,I am
now answering the aforesaid points:
As to Point no.1:
12. It is the trite law that, while granting temporary
injunction, the Court should not deal with the suit on merits. The
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proceedings pertaining to grant temporary injunction are supplemental
proceedings and Court should refrain from giving a findings on merits
of the case. A person who seeks a temporary injunction, must satisfy
the Court's to insistence of the following conditions:
i) That there is serious question to be tried in the suit and
that on the facts before the Court there is probability of
his being entitled to the relief asked for by him.
ii) The Court's is interference is necessary to protect him
from the species of injury which the Court calls irreparable
before his legal right can be established on trial and the
iii) The comparative mischief or inconvenience which is
likely to be caused by withholding the injunction will be
greater than that which is likely to arise from granting it.
13. So far as prima facie case is concerned, it means that
Court should be satisfied that there is a serious question to be tried at
the hearing and there is a probability of the plaintiff obtaining relief at
the conclusion of the trial on the basis of material placed on record.
14. In the case in hand, the plaintiff has not given the proper
description of the suit premises so as to identify it in which particular
property the school is situated. Most of the documents which are filed
by the plaintiffs shows the name and address of the school as Alfalah
Urdu School, L.I.G colony, on the identity cards of the students, the
address of the Dairatul Falah Education Society is Vinoba Bhave Nagar,
opposite L.I.G building no. 11, pipe road , Kurla Bombay. The water bill
shows, the address of Vinoba Bhave Nagar, Kurla (West), the copy of
electricity shows the address Vinoba Bhave Nagar , Pipe road, Kurla. As
such, if most of the documents which are filed by the plaintiffs shows
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the address of different premises then that of the suit premises. In
additional affidavit , the plaintiff has submitted that there are two
premises of school and the plaintiff has come up with the absolutely
new case that the suit premises is the branch of main school which is
situated at Kurla. These material facts initially has been suppressed by
the plaintiff. Admittedly, the plaintiff is the trust and before filing the
suit, till this date , no permission has been obtained by the Charity
Commissioner. In my opinion, at initial stage when the material facts
and documents were suppressed, that by itself is sufficient ground for
rejecting this notice of motion.
15. The documents filed by the Caveator shows that Dairatul
Falah Education Society/ trust having regard registration no. B1197
71 was formed for the purpose of education and were in possession of
the suit premises. The documents prima facie reveals that the Mothersa
in the name to Karimul Kuran was started in the year 1971. The
documents further reveals that in the year 1980, the District Deputy
Collector issued notice to Caveator Abdul Rashid Khan in respect of suit
property. Thus, all the communications by the Government authorities
were with Dairatul Falah Education Society/trust is very clear from the
documents on record . Prima facie, it shows that the suit property was
assessed and number given was L2615(6). Thus, on perusal of, if
documents filed by the Caveator it shows that Alfalah English School is
not being run from the suit premises but from another address. Even
otherwise, considering the fact that suit premises is approximately 1130
sq,ft. It is very difficult to believe and accept the case of the plaintiff
that in this small suit premises around 1600 students are being
accommodated with 50 teachers and 20 staff members. This shows that
the plaintiff has deliberately suppressed the material facts from the
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Court and also suppressed that the main school is being run at different
premises. The said fact has been brought on record by the Caveator.
The another fact which is suppressed by the plaintiff is that the
MHADA has addressed the letter dated 17/12/2009 to Mumbai and
Parisar Leva Mandal in which they have requested to transfer the land
bearing C.T.S. No.938(Part), admeasuring by 1166.85 sq.ft. for the
parties for nursery school to Kurla Education and Welfare trust. At this
stage, the contents of the plaint appears to be different from that of the
written arguments filed by the plaintiff. Most of the documents were
not filed alongwith the plaint itself. No documents are placed on record
to show that for the suit premises the Education department, Municipal
Corporation or Fire Brigade department has granted permission to run
the school. All the documents are of different premises. School entries
forms, leaving certificate, does not prima facie appears to be of suit
premises. The plaintiff has not placed on record to show that plaintiff
no.2 to 6 are trustees of Dairatul Falah Education Society. Per contra, it
is submitted by the Caveator that plaintiffs no.2 to 6 have resigned from
Dairatul Falah Education Society.
16. Moreso, the another important aspects which is not
pleaded by the plaintiff is that , one Vinoba Bhave Nagar , Sunrise
Co.operative Housing Society had filed Writ Petition no. 2273/14
before the Hon’ble Bombay High Court where in on 8/7/2016 it was
ordered that the plaintiff no.1 is running its school from property
bearing C.T.S.No. 938 and not from the property bearing C.T.S. NO.
923(Part). These material facts that the Alfalah English School is being
run from property bearing C.T.S. No. 938 , allotted by MHADA is
suppressed by the plaintiff. Under these circumstances when the
plaintiff has suppressed material facts from the Court, no prima facie
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case is made out by the plaintiff for grant of injunction.
17. The plaintiffs has placed reliance on the case Suresh D.
Naik & Anr. Vs. Manguesh R.Wagle & Anr. reported in 2000(4) Mh.
L.J. wherein it is held that “Once forcible dispossession of the
respondents from the suit premises was established, it necessarily
followed that the respondents plaintiffs have to be put back in
possession”.
In the case in hand, from the affidavit and documents filed
the Caveator is very clear and reveals that the Caveator and his family
members were in possession of the suit premises and therefore there
cannot be question of forcible dispossession . Thus said ruling is not
applicable to present case.
The plaintiff has also placed reliance on the case Baban
Narayan Landge Applicant Vs. Mahadu Bhikaji Tonchzar & Ors.
reported in AIR 1989 Bombay 247; wherein it is held that “Civil Court
can issue at an interlocutory stage a mandatory injunction so as to
restore the status quo anterior to the date of institution of the Suit”.
The said ruling is not applicable as the plaintiff has
suppressed the material facts and documents from the Court . Moreso,
there is nothing to indicate that Alfalah English School is being run
from the suit premises only.
The plaintiffs has also placed reliance on the case Rama
Gawda Vs. M. Varadappa Naidu reported in (2004) 1 Supreme
Court Cases 769 wherein , it was held that “ Occupant in settled
position cannot be disposed without recourse to law Settled possession
gives right to possession such that even the rightful owner may recover
it by taking recourse to law”.
In the case in hand , plaintiff has prima facie failed to
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show the settle possession over the suit premises. Per contra, from the
documents on record shows it is Dairatual Phalah Trust who was in use
and occupation of the suit premises and the control of if was with
Caveator Abdul Rashid Khan and his family member. As settled
possession is not shown, this rulings is not helpful to the plaintiff.
The plaintiff was also placed on record on the case
Namgonda Jingonda Patil Vs. Appasaheb Bapurao Walwekar &
Ors.; reported in MANU/MH/1371/2000; wherein it was held that “
When there is no prayer against Trust, and when the totality of the
controversy is examined, it cannot be said that it is one within the scope
of Section 50 and 51 of the Act to require notice or permission of the
Charity Commissioner”.
At this interim stage this ruling cannot be considered and
it will be considered only at the stage of final hearing.
The plaintiff has also placed reliance on the case Anwar
Faramosh Khan Vs Mahendrakuma R Jugalkishore Gupta & Ors.;
reported in AIR 2004, Bom. 232. wherein it was held that “Section 6
of Specific Relief Act provides for providing speedy justice in cases of
unlawful dispossession without due process of law. Relief by
appointment of Court Receiver”. Prima facie in the case in hand, the
previous possession and unlawful dispossession is not made out by the
plaintiff and therefore, even considering the prayer in the main suit, it
cannot be said that this suit under section 6 of Specific Relief Act as in
one count, plaintiff has pleaded they were dispossessed and on
another count, the plaintiffs are submitting that only locks were put on
the main gate. As contrary pleadings and prayer are there, therefore
said ruling is not applicable to present case.
The plaintiff has also placed reliance on the case
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T.Krishanaswamy Chetty Vs. C Thangavelu Chetty and Ors.;reported
in AIR 1955 Mad 430 wherein it was held that “Five principles for
appointing a Court Receiver under Order 40 Rule 1.”
Considering the fact that the Charitable trust is involved .
At this stage, I do not find any reasons to appoint Court Receiver and
the aforesaid principles under given circumstances are not applicable
to the present case.
The plaintiff further placed reliance on the case
Khushnuma Ibrahim Khan Vs. Asadullah Khan reported in
MANU/MH/1641/2012 ; wherein it was held that, “ Orders in the
nature of mandatory injunction can be passed even at the interiocutory
stage”.
Said ruling is not applicable to present case as previous
continuous possession of the school over the suit premises is not prima
facie made out by the plaintiff.
The plaintiffs has also placed reliance on the case Deepak
Eknath Dhavan Vs. Faramosh Khan and Anr.; reported in
MANU/MH/0545/2004; wherein it was held that, “ Order upheld by
High Court passed under section 6 of Specific Relief Act, 1963
appointing Court Receiver with direction to handover premises.” As the
main suit does not appears to be under section 6 of the Specific Relief
Act , hence, the said ruling is not applicable and cannot be considered
at this stage.
18. In view of the above discussion, I hold that the plaintiff has
not made out any prima facie case for grant of temporary mandatory
injunction. I, therefore answer point no. 1 in the negative.
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As to point no.2:
19. The balance of convenience means the comparative
mischief or inconvenience of the parties. From several affidavits , it is
an admitted fact that the plaintiff is running the main school on
different premises. The documents placed on record by the Caveator
shows that Dairatual trust is in use and occupation of the suit premises
and it was Abdul Rashid Khan and his family member who were
maintaining the lock and keys of the suit premises. No prima facie case
is made out by the plaintiff for grant of temporary mandatory injunction
and as the prima facie possession is with the Caveator, the balance of
convenience lies in favour of the Caveator and not in favour of the
plaintiff. I, therefore answer point no.2 accordingly.
As to point no.3:
20. ‘Irreparable injury ‘means that the injury must be material
one i.e. which cannot be adequately compensated by damages. In the
present case, as per the plaintiff the locks and keys are with the
defendants and as per the Caveator keys is in his possession. Hence,
when the plaintiff has prima facie failed to show the possession of the
school over the suit premises, it cannot be said that if injunction is
refused, the plaintiff will suffer the irreparable injury which cannot be
compensated in terms of money. On the contrary if injunction is
granted, under these circumstances Dairatual Phalah Trust through the
Caveator who is in possession will suffer the injury, I answer point no.3
accordingly.
As to point no.4:
21. In view of my above discussions, the plaintiffs have not
made out strong prima facie case for grant of temporary mandatory
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injunction. The balance of convenience lies in favour of the Caveator
and it would be the Caveator who will suffer irreparable loss if the
interim injunction is granted . Hence I am not inclined to grant any
reliefs to the plaintiffs. I, therefore pass the following order.
ORDER
1. Notice of motion no. 2388/18 stands dismissed.
2. Costs in cause.
(Kishore M. Jaiswal )
Judge, City Civil & Sessions Court,
Greater Mumbai.
Date:16/11/2018.
Dictated on : 16/11/2018.
Transcribed on : 17/11/2018.
Signed on :
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“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date 26/11/2018
Time at 12.50 noon
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.02)
Date of Pronouncement of
JUDGMENT / ORDER
16/11/2018
JUDGMENT / ORDER signed by
P.O.on
17/11/2018
JUDGMENT / ORDER uploaded on 26/11/2018
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