Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3041/19 in St. No. 8604/19. 1 Common Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3041 OF 2019
(CNR NO. MHCC010083022019)
IN
STAMP NO. 8604 OF 2019
Mr. Victor Sebastian D'souza ...Plaintiff
Versus
Williams Marshall D'mello & Others ...Defendants
AND
NOTICE OF MOTION NO. 3042 OF 2019
(CNR NO. MHCC010083032019)
IN
STAMP NO. 8605 OF 2019
Mr. Vinod Dhanji Ravat ...Plaintiff
Versus
Williams Marshall D'mello & Others ...Defendants
AND
NOTICE OF MOTION NO. 3043 OF 2019
(CNR NO. MHCC010083052019)
IN
STAMP NO. 8606 OF 2019
Mr. Suresh Maruti Kamble ...Plaintiff
-- 1 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 2 Common Order.
Versus
Williams Marshall D'mello & Others ...Defendants
AND
NOTICE OF MOTION NO. 3044 OF 2019
(CNR NO. MHCC010083072019)
IN
STAMP NO. 8607 OF 2019
Mr. Vinod Dhanji Ravat ...Plaintiff
Versus
Williams Marshall D'mello & Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 16th NOVEMBER, 2019.
Mr. Nilesh Pandey, Advocate for Plaintiff.
Mr. Parera, Advocate for Defendant No.1.
Mr. Giri, Advocate for Defendant No.3 / MCGM.
ORDER
This is a motion taken out by plaintiff to stay execution of
decree in view of judgment of this Court in L.C.Suit No.4705/1998
dated 27/09/2013. It is requested for interim injunction to protect the
possession of plaintiff over suit premises.
2. Perused reply of defendant no.1, who has strongly resisted.
-- 2 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 3 Common Order.
Defendant no.2 Manohar Raut has supported the motion. Defendant
no.3 MCGM has averred that any order of the Court will be
scrupulously followed.
3. Ld. advocate Nilesh Pandey for plaintiff submits that suit
property has been purchased by the plaintiff from defendant no.2 Mr.
Manohar Raut by agreement of sale dated 27/03/1999. According to
plaintiff, Mr. Raut has obtained all development rights from Mrs.
Isfaras, wife of original owner Marshall D'mello. It was confirmed by
L.R.s of Isfaras on 08/05/1998. The judgment in L.C.Suit No.
4705/1998 is exparte as plaintiff is not made party in said suit, nor
Manohar Raut was party. Thereafter, one application by obstructionist
under Order 21 Rule 97 of CPC vide Notice of Motion No. 1200/2019
was preferred and one Civil Suit No. 1643/2019 was filed by plaintiff.
However, it was contended that due to no appropriate guidance to
plaintiff by then lawyer, plaintiff was failed to mention all details and to
obtain appropriate stand.
4. Ld. advocate Nilesh Pandey continued that there is no
finding of MCGM in respect of possession of plaintiff is unauthorized
and plaintiff is illegally possessed. He added that there is no authority
vested with defendant no.3 MCGM under Section 488 to demolish any
construction. It is claimed for temporary injunction against defendants.
It is requested to protect the possession of plaintiff over suit property.
5. Ld. advocate M.R.Yadav for defendant no.2 Manohar Raut
has supported the case of plaintiff.
6. Ld. advocate Giri for MCGM submitted that under Order 21
-- 3 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 4 Common Order.
Rule 24 of CPC, there is every power vested with the civil court. In
view of scope under Section 488 of MCGM Act, the structure is made
inhabitable. There is specific order of the Court to demolish the
structure, therefore MCGM has been empowered by the Court. It is
added that any further order of this Court will be followed by defendant
no.3.
7. Ld. advocate Pareira for defendant no.1 Williams D'mello
submits that all reliefs in plaint are claimed by the plaintiff in present
notice of motion. How there can be a fraud after 6 years from the date
of judgment in Suit No. 4705/1998 ? On the contrary, defendant no.4
Joycee D'mello was joined in said suit in 1999. There is a conclusion
drawn by the Court in said judgment that Manohar Raut is not a proper
party. On the other hand, Mr. Manohar Raut was appointed as a
contractor.
8. Ld. advocate Pareira requested to peruse that defendant
nos.2 and 3 have submitted the evidence and thereafter the Court has
delivered the judgment on the merit. Therefore, it cannot comment
that it was the exparte judgment nor obtained by fraud. It is added to
note that defendant no.4 Joycee D'mello has not preferred any appeal.
According to defendant no.1 the agreementcumsale bear a thumb
impression of his mother, nor it is registered, there is difference in
signature of Joycee D'mello. Therefore, he concludes that the impugned
agreement appear to be fabricated document. In view of various
proceeding after the judgment in Suit No. 4705/1998, it is requested to
note that plaintiff has misled the Court and abusing process of law by
filing fresh suit merely by changing the lawyer. It is requested to reject
the motion alongwith suit with compensatory cost.
-- 4 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 5 Common Order.
REASONS FOR ORDER
9. This is a common order in view of common argument in all
four unregistered suits and on four notice of motions. In view of a
chart submitted by ld. advocate for plaintiff, following description is
narrated in respect of suit property and other details as follows :
Stamp
No.
Parties Agreement of
Sale
Power of
Attorney
Affidavit Documents
of
possession
8604/19 Victor
D'souza
27/03/1999
Room No.1
H. 84
area 200
sq.ft.
14/07/19
99
14/07/19
99
Shop &
Establishme
nt
Certificate,
Electricity
bill,
Assessment
bill.
8605/19 Vinod
Dhanji
Ravat
12/07/1999
05/07/2007
31/07/2015
Room No.4
H. 84
area 200
sq.ft.
12/07/19
99
05/07/20
07
31/07/20
15
12/07/19
99
05/07/20
07
31/07/20
15
Electricity
bill, Old
Ration
Card,
Assessment
bill.
8606/19 Suresh
Maruti
Kamble
19/07/1999
Room No.2
H. 84
area 180
sq.ft.
19/08/19
99
19/08/19
99
Electricity
bill,
Aadharcard,
Assessment
bill.
8607/19 Sunil
Balkrishna
Badekar
09/03/1999
Room No.3
H. 84
area 210
sq.ft.
09/03/19
99
Ration Card
Aadharcard,
Election
Card,
Assessment
bill,
Electricity
bill
-- 5 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 6 Common Order.
10. According to ld. advocate for plaintiff, he materially raised
following points :
A) All plaintiffs were never party in L.C.Suit No. 4705/1998.
B) There is no notice of demolition issued by MCGM, nor there
is any conclusion about illegal occupation or unauthorized
construction.
C) The decree dated 27/09/2013 is obtained by fraud.
D) Plaintiffs are whistleblower upon receipt of notice issued
by BMC dated 05/03/2019.
11. It is surprising to note that defendant no.2 Manohar Raut
has supported the case of plaintiff. In view of various alleged
agreement to sale, the consideration in lakhs of rupees has been paid by
the plaintiff to Mr. Manohar Raut. There is no explanation given by Mr.
Manohar Raut that when he paid the said amount to the original owner.
The alleged payment is in cash and no cheque was given by the plaintiff
either to Manohar Raut or to original owner Mr. Marshall D'mello or
Mrs. Isfaras.
12. It is to note that Mr. Marshall died on 29/11/1967 and
Isfaras died on 12/03/1998. Ld. advocate for plaintiff admitted that
none agreement is registered nor any effect was given to the agreement
to sale to transfer the property in the name of plaintiffs.
13. It is to note that this is the 6th round of litigation after
judgment of this Court in L.C.Suit No. 4705/1998 dated 27/09/2013.
the chart is given as follows :
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N/m No. 3041/19 in St. No. 8604/19. 7 Common Order.
Proceeding Order Date
Suit No. 4705/1998 Order dated 27/09/2013.
Notice of Motion No. 1200/2019 Order dated 12/04/2019.
Appeal From Order No.
12716/2019
Order dated 21/06/2019
( J. Karnik).
Fresh Suit No. 1643/2019 Withdrawn on 02/08/2019.
Civil Application No. 8739/2019 Order dated 15/06/2019
(J. Tated).
Draft Notice of Motion Order dated 05/07/2019.
14. Ld. advocate Giri for MCGM submits that in view of order
in Execution Petition 359/2015, MCGM has obtained appropriate steps.
Therefore a notice came to be issued to the plaintiff. It is added that
further order of the Court will be followed by the MCGM. Ld. advocate
Pareira for defendant no.1 submits that defendant no.4 Joycee D'mello
has not filed any appeal. There are no grounds mentioned by the
plaintiff to conclude that decree in Suit No. 4705/1998 was obtained by
plaintiff by commission of fraud over the court. It is requested to reject
the motion with cost.
15. As discussed above, this is a 6th round of litigation, it is
necessary to peruse findings of different Court after plaintiff has
initiated legal proceeding upon decree in Suit No. 4705/1998 in view of
judgment dated 27/09/2013. Plaintiff has preferred Notice of Motion
No. 1200/2019 in Execution Petition No. 359/2015, para 6 from said
order is reproduced as follows :
"6. I have gone through the applicants notice of
motion and in support of affidavit, they nowhere
stated that in what capacity and since when they
-- 7 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 8 Common Order.
are staying or occupying suit property. If they are
not claiming their any rights or title independently
then how it can be decided under Order 21 Rule 99
of the Code of Civil Procedure. The applicants is to
specifically mentioned what are their rights and
when they derived their rights so, unless prima
facie their rights established in the property, decree
cannot be stayed. Hence, I find that applicants are
not entitled to get interim relief in prayer clause (b)
hence, prayer clause (b) in Notice of Motion
no.1200 of 2019 is rejected."
16. It is to note that plaintiff has challenged the said order in
Appeal From Order No. 12716/2019. The findings of the Hon'ble Court
(Hon'ble Justice Karnik) in para 5 and 6 are reproduced as follows :
"5. In my opinion the Trial Court was right in
observing that the appellants have failed to
specify in what capacity and since when they are
staying or occupying the suit property and as they
are not claiming any rights or title independently
then the same cannot be decided under Order 21
Rule 99."
"6. The photographs indicate that the suit
structure of which protection is sought is a
constructed structure having first floor. Further
the address is mentioned as Chawl House No.184.
The structure of which the appellants claim to be
in possession does not have any authorisation or
-- 8 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 9 Common Order.
permission and is not the same structure shown in
the assessment. Learned counsel for the
Corporation submits that the first floor has
already been demolished. It is thus apparent that
there is nothing on record to indicate that the
action on the part of the Corporation in execution
of the decree is unwarranted."
17. Thereafter plaintiff has preferred Suit No. 1643/2019. The
findings of this Court in draft notice of motion dated 05/07/2019 in
para 8 and 11 are reproduced as follows :
"8. Perusal of the plaint and annexures reveals
that plaintiffs No.1 to 4 have allegedly purchased
the room from one Manohar Barkya Raut. There
is nothing on record to indicate that how Mr. Raut
is concerned with the premises purchased by the
plaintiffs. The Judgment in Suit No.4705 of 1998
reveals that the Court had concluded therein that
the construction, ordered to be demolished, is a
reconstructed building and not the old house
which is assessed prior to the datum line."
"11. The plaintiffs have also suppressed the
material facts from this Court regarding action of
demolition already taken by the defendant
Corporation on 12.6.2019 and 19.6.2019. The
photographs produced by defendant corporation
reveal that the ground floor premises are also
partly demolished by it."
-- 9 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 10 Common Order.
18. In view of aforesaid discussion, following points are
material to note i.e.
A) There is no declaration claimed by plaintiff that he became
owner of the suit property and powers of ownership are
transferred to him.
B) On perusal of impugned development agreement dated
06/02/1998, Mr. Manohar Raut was appointed as a
contractor/developer and no authority was vested with him
to sale the suit property.
C) There is no triparty agreement nor plaintiff has given any
consideration to the original owner.
D) It is admitted by plaintiff that there is no assessment in his
name nor he applied for transfer.
19. Since from application Order 21 Rule 97 preferred by
plaintiff, he is agitating in respect of title passed to him. However no
documents came to be filed by plaintiff in said suit. Therefore, the
application to condone the delay came to be rejected by the Hon'ble
High Court vide order dated 15/06/2019. On perusal of entire record
preferred by plaintiff, it appear that no authority was vested with Mr.
Manohar Raut to transfer the title. On the contrary, it has been
observed by the Court that suit property was demolished and thereafter
plaintiff has again constructed it, which appear to be unauthorized
construction. In short, there is no prima facie case in favour of plaintiff.
20. In view of the chart given above, this is 6th round of
litigation. There is substance in submission of ld. advocate for
defendant no.1 that plaintiff has abused the process of law by filing
multiple litigation and choosing the forums. Obviously it will cause
-- 10 of 11 --
N/m No. 3041/19 in St. No. 8604/19. 11 Common Order.
irreparable loss to the defendant no.1, if motion stands allowed.
Therefore, balance of convenience lies in favour of defendant no.1.
Hence the order :
ORDER
1. Notice of Motion No. 3041/2019 in Stamp No. 8604/2019,
Notice of Motion No. 3042/2019 in Stamp No. 8605/2019,
Notice of Motion No. 3043/2019 in Stamp No. 8606/2019
and Notice of Motion No. 3044/2019 in Stamp No.
8607/2019 stands rejected.
2. Notice of Motion No. 3041/2019, Notice of Motion No.
3042/2019, Notice of Motion No. 3043/2019 and Notice of
Motion No. 3044/2019 are disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 16/11/2019. Mumbai.
1. Dictated on : 16/11/2019.
2. Transcribed on : 16/11/2019.
3. Signed on : 16/11/2019.
4. 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
16/11/2019. 5.43 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 16/11/2019.
Judgment/Order signed by P.O. on 16/11/2019.
Judgment/Order uploaded on 16/11/2019.
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