Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
NOTICE OF MOTION NO.4096 OF 2019
MHCC010112452019
NOTICE OF MOTION NO. 3692 OF 2019
MHCC010100502019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4096 OF 2019
&
NOTICE OF MOTION NO. 3692 OF 2019
IN
S.C. SUIT NO.8711 OF 1994
(HIGH COURT SUIT NO.2941 OF 1994)
Shree Padmanabh Builders. … Plaintiff
Versus.
Studiarch, a Firm and others. … Defendants.
And
Kanhaiyalal M. Thakkar. ...Respondent.
Appearance
Adv. K.D. Shah for plaintiff.
Adv. Nancy for defendant no.2 and 4.
Adv. Shroff for defendant no.5.
Adv. Vishvakarma for defendant no.6 and 7.
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ORDER ..2..
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 22nd August, 2022.
COMMON ORDER
Notice of Motion no. 3692 of 2019 is taken out by defendant
no.6 and 7 seeking declaration that they are not bound to act upon
power of attorney dated 01.10.1989, 08.06.1990 and 20.10.1992. The
defendant no.6 and 7 are also seeking order of injunction in respect of
above referred power of attorney.
2. Notice of motion no.4096 of 2019 is taken out by defendant
no.5 for rejection of plaint under Order 7 Rule 11 of the Code of Civil
Procedure.
3. It is the case of defendant no.6 and 7 that the plaintiff the power
of attorney came to be cancelled after utilization of FSI granted in the
development agreement dated 01.10.1989. It is further contended that
nothing is left to be done by the power of attorney holder. Defendants
are in possession of suit property under registered agreement.
4. It is contended by defendant no.5 that vide order dated
20.08.2015 the Competent Authority granted deemed conveyance in
favour of society. The document of conveyance came to be executed in
terms of order of Competent Authority. The defendant society has
become owner of entire land and building. Plaintiff is not having any
right to demand decree of eviction. It is further contended that
agreement executed in favour of defendant no.2 to 4 was within the
knowledge of plaintiff. The relief sought by the plaintiff in respect of
agreements executed in favour of defendant no.2 to 4 has become time
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ORDER ..3..
barred. Plaintiff did not seek declaration in respect of agreement
executed in favour of defendant no.2 to 4, therefore suit for eviction is
not maintainable. It is further contended that the prayer clause in the
suit is vague. It is further contended that Hon’ble High Court has
dismissed the claim of Kanhaiyalal Thakkar based on said power of
attorney. Defendant requested to reject the plaint under Order 7 Rule 11
of the C.P.C.
5. Perused pleadings and heard advocate for the parties.
6. The learned advocate appearing for defendants would submit
that suit of plaint is not maintainable for want of relief of declaration.
He further submits that the prayer made by plaintiff for eviction is
vague. He would further submits that the plaintiff’s suit for eviction
without prayer of declaration of title is barred under section 34 of the
Specific Relief Act.
7. The learned advocate relied on the case of
Anathula Sudhakar
V/s. P. Buchi Reddy(Dead) By LRs & Ors. reported in 2008 AIR(SC)
2033 and case of Venkataraja and others v/s. Vidyane
Doureradjaperumal (D) through Lrs. and others. reported in 2014 AIR
(SC) (Supp) 904. In the case laws cited supra reported in 2008 AIR(SC)
2033, it is observed in para 11 and 12 as under :-
11. The general principles as to when a mere suit for permanent
injunction will lie, and when it is necessary to file a suit for declaration
and/or possession with injunction as a consequential relief, are well
settled. We may refer to them briefly.
(11.1) Where a plaintiff is in lawful or peaceful possession of a property
and such possession is interfered or threatened by the defendant, a suit
for an injunction simpliciter will lie. A person has a right to protect his
possession against any person who does not prove a better title by
seeking a prohibitory injunction. But a person in wrongful possession is
not entitled to an injunction against the rightful owner.
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ORDER ..4..
(11.2) Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in addition,
if necessary, in injunction. A person out of possession, cannot seek the
relief of injunction simpliciter, without claiming the relief of possession.
(11.3) Where the plaintiff is in possession, but his title to the property is
in dispute, or under a cloud, or where the defendant asserts title thereto
and there is also a threat of dispossession from defendant, the plaintiff
will have to sue for declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a cloud or in dispute and
he is not in possession or not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge to
plaintiffs title raises a cloud on the title of plaintiff to the property. A
cloud is said to raise over a persons title, when some apparent defect in
his title to a property, or when some prima facie right of a third party
over it, is made out or shown. An action for declaration, is the remedy to
remove the cloud on the title to the property. On the other hand, where
the plaintiff has clear title supported by documents, if a trespasser
without any claim to tile or an interloper without any apparent title,
merely denies the plaintiffs title, it does not amount to raising a cloud
over the title of the plaintiff and it will not be necessary for the plaintiff
to sue for declaration and a suit for injunction may be sufficient. Where
the plaintiff, believing that defendant is only a trespasser or a wrongful
claimant without title, files a mere suit for injunction, and in such a suit,
the defendant discloses in his defence the details of the right or title
claimed by him, which raises a serious dispute or cloud over plaintiffs
title, then there is a need for the plaintiff, to amend the plaint and
convert the suit into one for declaration. Alternatively, he may withdraw
the suit for bare injunction, with permission of the court to file a
comprehensive suit for declaration and injunction. He may file the suit
for declaration with consequential relief, even after the suit for injunction
is dismissed, where the suit raised only the issue of possession and not
any issue of title.
8. In the case laws cited supra
2014 AIR (SC) (Supp) 904, wherein
it is observed in para 17 as under:-
17. A mere declaratory decree remains non-executable in most cases
generally. However, there is no prohibition upon a party from seeking an
amendment in the plaint to include the unsought relief, provided that it is
saved by limitation. However, it is obligatory on the part of the
defendants to raise the issue at the earliest. (Vide: Parkash Chand
Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of
M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal. v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR
1996 SC 642, this Court dealt with declaratory decree, and observed that
mere declaration without consequential relief does not provide the
needed relief in the suit; it would be for the plaintiff to seek both reliefs.
The omission thereof mandates the court to refuse the grant of
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ORDER ..5..
declaratory relief.
In Shakuntla Devi. v. Kamla & Ors., (2005) 5 SCC 390, this Court while
dealing with the issue held :
a declaratory decree simpliciter does not attain finality if it has to
be used for obtaining any future decree like possession. In such cases, if
suit for possession based on an earlier declaratory decree is filed, it is
open to the defendant to establish that the declaratory decree on which
the suit is based is not a lawful decree.
9. On the other hand, the learned advocate appearing for the
plaintiff would submit that the plaintiff is having title to suit property
therefore, mere denial of title by the defendants is not sufficient and the
suit of plaintiff in the present nature cannot be dismissed under Order 7
Rule 11 of the C.P.C. The learned advocate relied on the case of
Laxman
Bisan Uke & Ors. v/s. Ashok Ishwar Shinde & anr. reported in 2018(4)
Bom. C.R. 105, wherein it is observed that in para 16 as under :-
16. Thus it becomes clear that when the plaintiff has a clear title
supported by documents and a defendant without any claim on the title
merely denies the title of the plaintiff, it would not amount to raising of
cloud over the title of the plaintiff and it would not be necessary for the
plaintiff to sue for declaration and suit for injunction would be sufficient. In
the instant case, the evidence and material on record shows that the
defendants have no claim of title on the suit plot. In such a situation, the suit
filed by the plaintiffs in the present case is certainly maintainable and it was
correctly decreed by the courts below.
10. The learned advocate also relied on the case of Corporation of
the City of Bangalore v/s. M. Papaiah and another, reported in AIR 1989
SC 1809 wherein it is observed in para 4 as under :-
4. So far the scope of the suit is concerned, a perusal of the plaint
clearly indicates that the foundation of the claim of the plaintiffs is the title
which they have pleaded in express terms in paragraph 2 of the plaint. It has
been stated that after cancelling the acquisition of the suit property for a
burial ground the land was transferred to Guttahalli Hanumaiah under G.O.
No.3540 dated 10-6-1929 on payment of upset price. In paragraphs 3 and 5
the plaintiffs have reiterated that the first plaintiff was the owner-in-
possession. It is well established that for deciding the nature of a suit the
entire plaint has to be read and not merely the relief portion, and the plaint
in the present case does not leave any manner of doubt that the suit has
been filed for establishing the title of the plaintiffs and on that basis getting
an injunction against the appellant Corporation. The court fee payable on
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ORDER ..6..
the plaint has also to be assessed accordingly. It follows that the appellant’s
objection that the suit is not maintainable has to be rejected. The Additional
Civil Judge, who heard the appeal from the judgment of the trial court,
examined the question of plaintiffs title and rejected their case. The question
of possession was also separately taken up, and it was found that the
plaintiffs had failed to prove their possession until 24-8-1973 when they
allege that the appellant Corporation trespassed. Accordingly, the appeal was
allowed and the suit was dismissed.
11. The plaintiff’s suit is for decree of eviction and for recovery of
arrears with decree of injunction. It is the case of plaintiff that
Kanhaiyalal M. Thakkar is the constituted attorney of the plaintiff and
has acquired right to develop the property and utilized balance FSI of
the said property. Kanhaiyalal Thakkar is making payments of property
Tax, Municipal Assessment Bill on behalf of plaintiff. Defendant no.1
and other occupants of the society are bound to reimburse amount paid
by the plaintiff. It is alleged that defendants have committed breach of
agreement and refused to pay the property Tax and Assessment Bills in
terms of agreement. It is further stated that plaintiff has reserved all
rights upon the open space, lobbies, terrace and stair case, parking
space, garden etc., under clause 10 of the agreement. It is alleged that
defendant no.1 has sold suit premises alongwith parking space in favour
of defendant no.2 to 4 in contravention of clause 10 of the agreement.
The transfer of parking space is absolutely illegal. From the plain
reading of the plaint, it is seen that the plaintiff’s suit is for eviction
against defendant no.1 to 4 based on title. Omission in the prayer
clause to hand over possession in favour of plaintiff is not sufficient to
dismiss the suit. The pleading and prayer clause if read together than it
is clear that the plaintiff is seeking in possession for himself.
12. It has come on record that in notice of motion no.3320 of 2015
my learned predecessor has recorded a findings that Padmanabh
Builder has executed irrevocable Power of Attorney in favour of plaintiff
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ORDER ..7..
i.e., Kanaiyalal Thakkar and same cannot be revoked. It is further
observed that the defendant no.2 to 4 cannot challenge the validity of
power of attorney which would be otherwise is matter in issue and can
only be decided when both the parties will lead evidence to that effect.
The finding recorded in notice of motion no.3320 of 2015 are not
challenged by any party to the suit.
13. Plaintiff’s claim is based on documentary evidence. Mere denial
of title of plaintiff in the pleading is not sufficient to reject the plaint
under Order 7 Rule 11 of the C.P.C. The facts in the case cited supra
relied on behalf of defendants are not identical with the present case.
Defendants have failed to make out ground for rejection of plaint under
Order 7 Rule 11 of the C.P.C. Hence following order.
ORDER
Notice of Motion No.3692 of 22019 and Notice of Motion No.
4096 of 2019 stand rejected with no order as to costs.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 22.08.2022
Typed on : 22.08.2022
HHJ signed on : 22.08.2022
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ORDER ..8..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 22.08.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
22.08.2022
JUDGMENT/ORDER signed by P.O.
on
22.08.2022
JUDGMENT/ORDER uploaded on 22.08.2022
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