Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/s 2238/2019 & 2239/2019
in S.C. Suit 7041 of 1997
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 2238 OF 2019
IN
S.C. SUIT NO. 7041 OF 1997
(H.C. SUIT NO. 1327 OF 1997)
CNR NO. : MHCC010129532019
Mr. Narendra Ramesh Sharma … Plaintiff
Vs.
Mrs. Ruksana Suleman Chamadia … Defendant
And
Gangaram Mahipat More … Applicant/
Obstructionist
ALONG WITH
CHAMBER SUMMONS NO. 2239 OF 2019
IN
S.C. SUIT NO. 7041 OF 1997
(H.C. SUIT NO. 1327 OF 1997)
CNR NO. : MHCC010129542019
Mr. Narendra Ramesh Sharma … Plaintiff
Vs.
Mrs. Ruksana Suleman Chamadia … Defendant
And
Mahadev Mahipat More … Applicant/
Obstructionist
Appearance:
Mr. K.B. Adyanlhoya along with Niranjani Shetty, advocates for the
applicant in both ch/s.
Mr. Rajesh Sharma, advocate for the plaintiff in both Ch/s.
Ms. Reshmi Nair i/b. M/s. Apex Law Partners for defendant in both
Ch/s.
CORAM :SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 14/01/2020
ORAL ORDER
1. Both the chamber summons are identical, therefore in order
to avoid repetition are decided together.
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in S.C. Suit 7041 of 1997
2. The Chamber Summons No. 2238 of 2019 is filed by
Gangaram Mahipat More stating that he is residing in the premises
since 1973 and he has documents to show that he is in possession
of the ground floor, Dady Terrace, Opposite Jain Mandir, August
Kranti Maidan, Mumbai – 400 036.
3. The Chamber Summons No. 2239 of 2019 is filed by
Mahadev Mahipat More stating the same facts that he is residing in
the same premises since 1973 when he was 12 years old and he
too has documents to show that he is in possession of that
premises till date.
4. The chamber summons is supported by affidavit of both the
applicants/ obstructionists.
5. The plaintiff filed reply to the chamber summons through
affidavit of Subhash Bhagwatiprasad Sharma in both the chamber
summons stating the same defence that the application is not
tenable. They are the servants of deceased Perin Nariman (tenant
of the applicant). The representative of the Court Receiver
enquired with them. They stated that since the rooms were lying
empty therefore they occupied the said rooms after death of Perin
Nariman. The representative of Court Receiver also asked them to
produce any documentary evidence of their lawful possession.
They then stated that they did not have any document and
undertook to vacate the said rooms within two weeks from the
visit but instead of vacating the suit premises, they have filed false
chamber summons and obstruct the vacant possession of the
premises by the Court Receiver.
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in S.C. Suit 7041 of 1997
6. The reply is filed by the defendant through affidavit of
Ruksana S. Chamadia. She on oath stated that the applicant have
no locus standi to file the chamber summons. The property belongs
to partnership firm's property i.e. M/s. Shubh Developers of the
plaintiff and defendant. The Hon'ble High Court was pleased to
appoint Court Receiver by order dated 08.01.2001 to take formal
possession of the suit building known as “Dady Terrace” situated at
Gowalia Tank Road, Mumbai. A board was attached to the suit
premises immediately after taking formal possession and the late
Nariman was aware of the same.
7. The Hon'ble High Court in Notice of Motion No. 1541 of
2007 by an order dated 17th February 2009 passed final decree and
has directed the Court Receiver to take steps to dispose of the
properties within 12 weeks from the date of the order. The
appellant never bothered in the entire tenure of 19 years and 9
years after demise of late Nariman to approach the Court and its
officers, plaintiff and defendant. After, the plaintiff and defendant
found that both the tenants had vacated the said premises, they
immediately brought to the notice that the Hon'ble Court. By an
order dated 15.03.2019, the Court was pleased to direct the Court
Receiver to take physical possession of the suit premises and do
valuation and auction of the said premises. Hence, prayed to
dismiss the chamber summons.
8. Both the applicants have filed rejoinder affidavit denying the
contents of reply and have also annexed some documents to show
that they are in possession of the suit premises. They also carried
out repair work.
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in S.C. Suit 7041 of 1997
9. Heard advocate Mr. K.B. Adyanlhoya for the applicant and
advocate Mr. Rajesh Sharma for the plaintiff. Perused the contents
of chamber summons and reply supported by affidavit. The
original suit bearing no. 7041 of 1997 (H.C. No. 1327 of 1997)
was filed by Narendra Ramesh Sharma against Mrs. Ruksana
Suleman Chamadia for dissolution of partnership firm i.e. M/s.
Shubh Developers constituted under the Deed of Partnership dated
29th April 1989. The prayer was to appoint the Commissioner to
take accounts and the Court Receiver for final disposal of the suit.
10. 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.
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.”
11. 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
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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”.
12. 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.
13. 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.
14. 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
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in S.C. Suit 7041 of 1997
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
15. 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
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.
16. The applicants did not state that they are residing in the
premises in what capacity. During the argument, advocate K.B.
Adyanlhoya for applicants stated that they are in settled position.
The applicants are stating that they are in possession of the
premises since 1973 but on what capacity they are possessing this
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in S.C. Suit 7041 of 1997
premises are not stated. Advocate K.B. Adyanlhoya submitted that
even the trespasser has settled possession, cannot be dispossessed,
without due process of law. They were not aware of the
proceeding therefore, they could not approach the Court. Hence,
their possession is to be protected. The applicants have to
specifically come with case whether they are trespasser/ tenant
and/ or licensee and from whom they got possession. The silence
of the applicants in this respect do establish that they are not
coming with true facts.
17. On the other hand, advocate Sharma for the plaintiff has
drawn my attention to the reliefs of the chamber summons. The
suit is disposed of. The applicants are the tenants of the deceased
Perin Nariman. Therefore, they have no locus standi to possess the
suit premises. As per the report of the Court Receiver in the order
dated 23.01.2001 there was board affixed to show that the Court
Receiver is in possession of the premises. Therefore, the contention
of the present applicants in the chamber summons is not tenable.
18.Advocate for the applicant has relied on authorities reported in,
(i) Krishna Ram Mahale (decd by his LRs)
Vs.
Mrs. Shobha Venkat Rao
[AIR 1989 SC 2097]
that in India persons are not permitted to take forcible
possession; they must obtain such possession as they are
entitled to through a Court.
(ii) V.K. Rama Setty
Vs.
A. Gopinath
[AIR 1998 Karnataka 186]
that once application under Order 21 Rule 99 of Code of
Civil Procedure is filed, it is mandatory on the part of the
Court provided under subrule (2) of Rule 99, to dispose of
the same in accordance with the provisions contained in
Rules 100 and 101 of Order 21 of the Code of Civil
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in S.C. Suit 7041 of 1997
Procedure. Rule 101 bars in an unambiguous term bars the
filling of a separate suit on any question arising between
the parties including the question relating to the right, title
and interest in the property.
19. Advocate 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.
20. Advocate Shri. Rajesh Sharma for plaintiff has relied on
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
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
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in S.C. Suit 7041 of 1997
interest whatsoever for himself in such property irrespective
of his long stay or possession.”
21. All the applicants are seeking relief under Order 21 Rule 99
of the Code of Civil Procedure. It will apply only when there is
execution proceeding filed by the plaintiff on the basis of the final
decree. In the suit, the said relief is not tenable. The prayer clause
of both the applications are as under :
“(a) Pending the hearing and final disposal of the Chamber
Summons the Applicant/ Obstructionist be permitted to
intervene / join as party defendants, and, restrain the Court
Receiver or the plaintiff or Defendants from evicting the
Applicants/ Obstructionists and their wife and children residing in
the suit premises as mentioned in Annexure AIX (in chamber
summons no. 2238/2019)/ Annexure 8 (in chamber summons
no. 2239/2019)
(b) Chamber Summons, the plaintiff may be directed to join the
Appellant/ Obstructionist as the Party Defendant to the above
Suit, he may be allowed to defend his case in the above suit;
(c) Pending hearing protection may be granted from eviction by
the Plaintiff, or their agents, or assignees, or any of their
representatives;
(d) A direction may be issued to the Court Receiver not to disturb
the possession of the Appellant/ Obstructionist or dispossess, or
evict the Appellant/ Obstructionist or his family members”
22. The suit is finally decided by the Hon'ble High Court in
Notice of Motion No. 1541 of 2007 by an order dated 17.02.2009.
Therefore, above reliefs cannot be granted. The chamber summons
is not tenable. Hence, pass the following order :
ORDER
1. The chamber summons nos. 2238 of 2019
and 2239 of 2019 are dismissed.
2. No order as to cost.
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3. Accordingly, chamber summons are 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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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
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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