Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/s 2237/2019 in S.C. Suit 7041 of 1997
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 2237 OF 2019
IN
S.C. SUIT NO. 7041 OF 1997
(H.C. SUIT NO. 1327 OF 1997)
CNR NO. : MHCC010129482019
Mr. Narendra Ramesh Sharma … Plaintiff
Vs.
Mrs. Ruksana Sulaiman Chamadia … Defendant
And
Ms. Armaity Sapur Desai … Applicant/
Intervenor/ Proposed
Defendant
Appearance:
Mr. Zubin Dalal, advocate for the applicant.
Mr. Rajesh Sharma, advocate for the plaintiff.
Ms. Reshmi Nair i/b. M/s. Apex Law Partners for defendant.
CORAM :SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 14/01/2020
ORAL ORDER
1. The chamber summons is filed by Ms. Armaity Sapur Desai
seeking following reliefs:
a) that this Hon'ble Court be pleased to allow the
Applicant to be impleaded as a defendant in the
pending Suit and thereafter this Hon'ble Court be
pleased to direct the plaintiff to carry out
consequential amendments as and where necessary;
b) that the delay in taking out this Chamber Summons,
if any, be condoned;
c) that pending the hearing and final disposal of the
Chamber Summons, this Hon'ble Court be pleased to
issue a temporary injunction restraining the parties
to the suit through the Court Receiver, from, in any
manner, either directly or indirectly through their
agents, associates, affiliates, representatives or
employees, from in any manner whatsoever, from
selling or creating any third party rights in the flat
on the ground floor, “Dady Terrace” Building, August
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Kranti Marg and consisting of 5 (five) rooms
(hereinafter referred to as the “Suit Premises”);
d) that pending the hearing and final disposal of this
Chamber Summons, this Hon'ble Court be pleased to
issue a temporary injunction restraining the parties
to the suit through the Court Receiver from sealing
the remaining two rooms in the Suit Premises;
e) that pending the hearing and final disposal of this
Chamber Summons, this Hon'ble Court be pleased to
pass an order directing the parties to the Suit
through the Court Receiver to open the sealed rooms
of the Suit Premises and in the presence of the
Applicant/ or her representative, take an inventory of
all the items contained therein which belong to the
Applicant/ Intervenor/ Proposed Defendant herein;
f) For adinterim reliefs in terms of prayer prayers (c)
to (e) above.”
2. The chamber summons is supported by affidavit of Ms.
Armaity Sapur Desai stating that his grandfather Mr. Hormusji
Nariman was residing on the ground floor of the premises,
consisting of five rooms in building known as “Dady Terrace” since
1926. The suit premises was owned by the late Khan Bahadur
Hormasji Maneckji Bhiwandiwalla Trust and the late Mr. Nariman
has been residing as a tenant in the suit premises with his wife and
children. The rent receipts of the suit premises were issued in the
name of deceased Mr. Nariman. His grandfather Mr. Nariman
expired on 31.08.1968 and grandmother Mrs. Shirinbai on
10.11.1976. His mother Temina and aunt Gool along with his
uncles Faredun and Phiroze all began staying in their respective
matrimonial homes after their marriages. Deceased Ms. Perin
Nariman continued to reside in the suit premises. She was paying
the rent of the suit premises, though the landlord refused to issue
the rent receipts in her name. Therefore, it continued in the name
of Mr. Nariman.
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3. The deceased Ms. Perin Nariman executed Will dated
06.07.1989 thereby bequeathed her entire tenancy rights in the
suit premises to her brother Mr. Phiroz Nariman. Mr. Phiroz
Nariman predeceased the late Ms. Perin Nariman and clause of the
last Will of the deceased Ms. Perin Nariman states that in the event
that Mr. Phiroz predeceased her, then in that event, the entire
right and interest in the suit premises shall be bequeathed by the
applicant entirely. Therefore, on this basis, the applicant is
claiming right in the suit premises being the beneficiary of the Will
in respect of the tenancy rights held by deceased Ms. Perin
Nariman.
4. The plaintiff filed reply through Subhash Bhagwatiprasad
Sharma and has denied the contents of the chamber summons in
toto. The plaintiff stated that the applicant has no locus standi to
file the chamber summons. The reliefs sought in the chamber
summons are not maintainable. Hence, prayed to dismiss the
application.
5. The Hon'ble High Court in notice of motion no. 1541 of
2007 dated 17.02.2009 has passed final decree. Para nos. 25 to 27
of the order is as under :
“25. Having satisfied myself that the order dated 28th
March 2001 is a preliminary decree and that the suit
property consisting of a building, which is dilapidated and
if not sold and disposed of urgently, would result in
further injustice to parties, it is directed that the Court
Receiver, High Court Bombay should take steps to dispose
of the properties and assets of the firm, including those
described in Exh. C to the plaint by taking necessary steps
in accordance with the rules laid down in that behalf. The
Court Receiver is directed to conclude the sale within a
period of twelve weeks from today. Needless to state that
the Court Receiver to retain the sale proceeds until
further orders and directions of the Court.
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26. In the light of the fact that the suit has been
instituted on 15th April 1997 and parties are having due
notice of its institution and have proceeded on the basis
that the suit firm stands dissolved with effect from this
date, it is directed that the suit firm shall stand dissolved
with effect from 15th April 1997.
27. Registry to draw up final decree determining and
reckoning the above date and with directions as aforesaid
to the Court Receiver. All concerned to act on an
authenticated copy of this order.”
6. The notice of motion 2221 of 1999 was filed by the plaintiff
for preliminary decree. On 28.03.2001, the Hon'ble High Court has
passed the following order :
“The learned counsel appearing for the Defendant, on the
other hand, opposes the motion. According to him, the
Defendant has not given any admissions in his affidavit dated
2161999. According to the learned counsel, unless and
until, the Defendant files his Written Statement, it cannot be
said that he has admitted the facts and no preliminary decree
can be passed against the Defendant. The learned counsel
submits that in the affidavit filed in this notice of motion, the
Defendant has claimed that there was no partnership
between the Plaintiff and the Defendant and the transaction
between the Plaintiff and the Defendant was merely a loan
transaction. According to the learned counsel, therefore, a
preliminary decree cannot be passed. The learned counsel
also submits that this Notice of Motion has not been taken
out by the Plaintiff under the provisions of Order 12 Rule 6
of CPC, but his Notice of Motion has been taken out by the
Plaintiff under the provisions of Order 20 Rule 15”.
7. The Commissioner for taking account submitted the report
on 06.05.2004, therefore the above final decree was passed by the
Hon'ble High Court.
8. The final decree is not yet drawn on the basis of the above
order of the Hon'ble High Court. Advocate Sharma for the plaintiff
stated that final decree is not drawn however, the direction of the
Receiver is to be complied with.
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9. On perusal of the report of the Commissioner bearing no. 40
of 2010 dated 07.05.2009, the suit property was decided by S.K.
Sharma on 22.04.2009 accompanied by representative of the Court
Receiver Mrs. V.N. Gawande and representative of the plaintiff Mr.
Amol C. Borkar. On inspection of the suit property, they have
stated the description of the property as under:
“The property consists of a plot of land and a two
storeyed residential building standing thereon. It is
situated off August Kranti Marg (formerly Gowalia Tank
Road), close to Kemp's Corner. It is the third property off
August Kranti Marg, on the ascent of Cumballa Hill, with
only pedestrian access available over the flight of steps in
the side open spaces of the existing buildings in the first
two properties in front of it. However, no motorable
access is available to the property under reference. The
property under reference is at an elevation of about 10
Mt. (33 feet) above August Kranti Marg.
The existing building in the property is a residential
building consisting of ground floor and one upper floor,
with one large tenement on each floor. The tenement on
the ground floor has a large hall divided into four rooms
by means of timber partitions and a room & a toilet block
in brick masonry partitions. It also has a verandah along
the entire length of the hall. The first floor also has similar
accommodation. Both the tenements are let out on
monthly tenancies and the tenants are protected against
eviction and increase in rent, under the provisions of the
Rent Act. The details of the tenements, as furnished by the
Defendant, are as follows:
Floor Name of Tenant/ Occupant Monthly Rent
Ground Mrs. Nariman Rs. 98/40
First Mrs. Rhoda C. Katrak
(deceased)
Mrs. Bapsy A. Parikh –
occupant
Rs. 109/30
Total Rs. 207/70
10. The details for the redevelopment of the building is also
stated in the report of the Receiver. In respect of the present
chamber summons, the report of the Receiver is important to show
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that there were only two tenants i.e. Mrs. Nariman, Mrs. Rhoda C.
Katrak (deceased) and Mrs. Bapsy A. Parikh (occupant), who were
paying rent to the owner of the premises.
11. Advocate Mr. Dalal for the defendant has relied on authority
reported in :
Shreenath & Anr.
Vs.
Rajesh & Ors.
[(1998) 4 SCC 543]
that statutory provisions of Order 21 of Code of Civil
Procedure lays down a complete code for resolving all
disputes pertaining to execution of the decree for possession
obtained by a decreeholder. Once resistance is offered by a
purported stranger to the decree, the remedy available to
the decree holder against such an obstructionist is only
under Order 21 Rule 97 of Code of Civil Procedure.
12. On the other hand, advocate Shri. Rajesh Sharma for the
plaintiff has relied on the authority reported in :
Maria Margarida Sequeria Fernandes & Ors.
Vs.
Erasmo Jack de sequeria (deceased) through Lrs.
Civil Appeal No. 2968/2012 (S.C.)
that the Hon'ble Apex Court has laid down the
following principles of law on the basis of case :
“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 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
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extended to the person who has valid, subsisting rent
agreement, lease agreement or license 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.”
13. The suit is finally decided. The final decree is to be
engrossed on stamp. The execution proceeding is not filed by the
plaintiff. The reliefs sought in the prayer to the chamber summons
is not maintainable as the suit is decided. The authority relied by
the parties is not applicable.
14. The tenancy rights of the property cannot be bequeathed by
Will. Therefore, right of the applicant on the basis of Will is not
recognized and the applicant has no locus standi to file the
chamber summons. The chamber summons is not maintainable.
Hence, I pass the following order:
ORDER
1. The chamber summons no. 2237 of 2019 is
dismissed.
2. No order as to cost.
3. Accordingly, chamber summon is disposed of.
(Smt. S.S. Nagur)
Adhoc Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 14/01/2020
Typed on : 15/01/2020
Sign on : 17/01/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24/01/2020 2.00 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
14/01/2020
Judgment/order signed by P.O on 17/01/2020
Judgment/order uploaded on 24/01/2020
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9 Ch/s 2237/2019 in S.C. Suit 7041 of 1997
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10/01/2020 2.45 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
07/01/2020
Judgment/order signed by P.O on 08/01/2020
Judgment/order uploaded on 10/01/2020
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