Writ Petition No. 3370 of 2013. Case: Nakhuda Mohd. Ali Rogay Vs Anzar Ahmed, Anwar Ahmed and M/s. Kitabi Traders. High Court of Bombay (India)
| Case Number | Writ Petition No. 3370 of 2013 |
| Counsel | For Appellant: Mr. G. S. Godbole with Mr. G. R. Mishra and Mr. A. M. Shinde, Advs. And For Respondents: Mr. A. N. Nasikwala i/b Ms. Z. A. Lakdawala and Mr. Kunal Bhange, Advs. |
| Judges | R. M. Savant, J. |
| Issue | Code of Civil Procedure (CPC), 1908 - Rule 10 |
| Judgement Date | April 22, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
R. M. Savant, J.
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Rule. With the consent of the parties made returnable forthwith and heard. The Writ Jurisdiction of this Court is invoked against the order dated 15-4-2013 passed by the Trial Court i.e. the Learned Judge of the City Civil Court Greater Mumbai by which order, the application filed by the Respondent No. 3 herein for his impleadment in the Suit in question came to be allowed.
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The parties would be referred to as per their status in the Trial Court. The Petitioner herein is the original Plaintiff. The Respondent Nos. 1 and 2 herein are the original Defendant Nos. 1 and 2 and the Respondent No. 3 is the Applicant who had filed the application in question being Chamber Summons No. 1079 of 2012 for his impleadment. The Suit in question being S.C. Suit No. 1830 of 2010 has been filed by the Plaintiff interalia for a declaration that the Defendant Nos. 1 and 2 are rank tresspassers in respect of the suit premises being Shop No. 9, Ground floor of Building No. 21/39, Nakhuda Building, Maulana Azad Road, Mumbai 400 008 bearing C.S. No. 266, "E" Ward Byculla Division, for the further relief that the Defendant Nos. 1 and 2 be directed to forthwith quit, vacate and hand over peaceful and vacant possession of the suit premises. The relief is also sought as regards the payment of compensation for the said illegal and unauthorised use of the suit premises. The Plaintiff by prayer clause (c) has sought relief that the Court Receiver High Court Bombay be appointed as a receiver in respect of the suit premises.
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It is the case of the Plaintiff that the Suit building is occupied by various tenants and in so far as the suit premises being Shop No. 9 one M/s. Kitabi Traders was the monthly tenant in respect thereof the suit premises are on the ground floor of the said building and have a carpet area of 200 sq. ft. and the contractual rent in respect of the same is Rs. 158 per month exclusive of permitted increases and property taxes. It is the case of the Plaintiff that the Defendant Nos. 1 and 2 are illegally occupying the suit premises without any authority and that the said original tenant M/s. Kitabi Traders has left the suit premises. The Plaintiff therefore addressed a Advocates notice dated 5-11-2009 to the Defendant Nos. 1 and 2 M/s. Ahmed Brothers calling upon them to quit, vacate and handover vacant possession. The said notice sent to the Defendants was also sent by the postal certificate which was received by the Defendants. However, inspite of the receipt of the said notice, the Defendant Nos. 1 and 2 neither replied to the said notice nor did they comply with the requisitions contained therein. It is the case of the Plaintiff that a copy of the said notice was forwarded to the Senior Inspector of police, Nagpada Police Station for necessary action.
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It is the case of the Plaintiff in the said Suit that the Defendant Nos. 1 and 2 have no right and authority to remain in possession of the suit premises and that they are rank trespassers as there is no privity of contract between the Plaintiff and the Defendant Nos. 1 and 2.
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The suit summons came to be served on the Defendant Nos. 1 and 2 who appeared in the Suit and filed their Written Statement which is dated 27-8-2012. It is their case that they are not concerned with the Suit premises. In the said Suit, the Plaintiff had filed a Notice of Motion being No. 2034 of 2012 for appointment of the Court Receiver. It is at the hearing of the said Notice of Motion that the Defendant Nos. 1 and 2 raised a preliminary issue as regards the jurisdiction of the Court on the ground that the City Civil...
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