Appeal No. 270 of 2009 in Notice of Motion No. 15 of 2009 in Suit No. 5866 of 1999 and Notice of Motion No. 2360 of 2009 in Appeal No. 270 of 2009 in Notice of Motion No. 15 of 2009 in Suit No. 5866 of 1999. Case: Ghanshyam Jamnomal Shewakramani and Mrs. Meena Ghanshyam Shewakramani Vs Lachmandas Tulsiram Nayar (HUF) by and through its Karta and Manager, Shri Ram Gopal Lachhmandas Nayar, Smt. Kiran Surjiv Bedi W/o Late Shri Surjiv Kumar Bedi, Ms. Sheron Surjiv Bedi daughter of Late Shri Surjiv Kumar Bedi and Mr. Sunny Surjiv Bedi son of Late Shri Surjiv Kumar Bedi. High Court of Bombay (India)
| Case Number | Appeal No. 270 of 2009 in Notice of Motion No. 15 of 2009 in Suit No. 5866 of 1999 and Notice of Motion No. 2360 of 2009 in Appeal No. 270 of 2009 in Notice of Motion No. 15 of 2009 in Suit No. 5866 of 1999 |
| Counsel | For the Appellant: A.Y. Sakhare, Sr. Adv. and Ranjit Thorat, Adv., i/b., Devendra Udani, Adv. and For the Respondents: F.E. D'vitre, Sr. Adv. and Manju Sharma, Adv., i/b., Amol V. Doijode, Adv., J.B. Mitra and Munir Merchant, Advs.and S.A. Vichare, representative of the Court Receiver |
| Judges | P.B. Majmudar and R.C. Chavan, JJ. |
| Issue | Presidency Small Cause Courts Act, 1882 - Section 41; Bombay Rent Act - Section 28; Civil Procedure Code (CPC) - Section 9(A), 9(A)(1) and 9(A)(2) - Order 22, Rule 10 |
| Citation | 2010 (1) BomCR 812, 2010 (2) MahLJ 294 |
| Judgement Date | November 17, 2009 |
| Court | High Court of Bombay (India) |
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Judgment P.B. Majmudar, J. 1. This is a thoroughly misconceived appeal filed by the appellants who have been subsequently added as defendant Nos. 4 and 5 in Suit No. 5866 of 1999. The respondent No. 1 is the owner of a building known as "Shiv Sadan", situated at 'C' Road, Netaji Subhaschandra Road, Marine Drive, Mumbai -- 400 020. The aforesaid respondent No. 1/original plaintiff has filed the said suit bearing No. 5866 of 1999 originally against Tilak Raj Bedi and his son Surjiv as original defendant Nos. 1 & 2 on the ground that the said defendants were the trespassers, having no right to retain the possession of the suit premises. While Tilak Raj died on 10-09-2007 and Surjiv died on 16-07-2006, Mahendra, Mausaben and Tapan Zaveri were initially arrayed as defendant No. 3 to 5, as the plaintiffs apprehended that they may be inducted in the suit premises by defendant Nos. 1 and 2. They had been subsequently deleted from array of defendants. It is the case of the plaintiff that one Lachhmandas, father of Ramgopal and Ors., left behind his widow namely Pushpavati through his second marriage. The said Pushpavati had her permanent residence at 2/3 < xml:namespace prefix = st1 /> 2. It is the case of the plaintiff that after the death of Pushpavati, the original defendant No. 1 Tilak Raj, started visiting the said premises at Mumbai, though his permanent address is 3. It seems that the plaintiff apprehended that the defendant Nos. 1 & 2 wanted to transfer the property to original defendant Nos. 3, 4 & 5 (i.e. Zaveri's) without consent of the plaintiff. On these and such other averments, plaintiff therefore, filed a suit with a prayer that decree for possession may be passed against the defendants, treating them as trespassers. Plaintiff also preferred a Notice of Motion for interim injunction and the learned Single Judge by his order dated 11-12-2000, granted injunction by passing following order: 1. In the suit of the plaintiffs the reliefs prayed for amongst other is for eviction of the defendants from the suit premises on the ground that the defendants have no right, title and interest in the suit property. Plaintiffs have also taken out motion contending that they apprehend on account of the incidents that have taken place the defendants may induct third parties into the suit premises. 2. On behalf of the defendants the defendant No. 2 has filed an affidavit. It is contended that they are in lawful possession and entitled to continue to remain so. The incident which purportedly occurred on 3rd December and 5th December, 2000 have been denied. It is therefore, submitted that the relief as prayed for should be rejected. 3. Prima facie, the plaintiffs on the avermens in the plaint have been able to show that they have an interest in the property. No doubt there is a dispute as to whether the defendants in fact are seeking to create third party rights. Once the plaintiffs have come to the court apprehending that the defendants may create third party rights, the status quo as prevailing on the date of the suit will have to be maintained. Considering that the plaintiffs are entitled to protect the property. Hence, motion made absolute in terms of prayer Clause (b). There shall be no order as to costs. Both parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court. P.A. to give ordinary copy of this order to the parties. 4. During the pendency of the suit, since the original defendant Nos. 1 and 2 died, the plaintiff took out a Chamber Summons No.801 of 2008 for bringing heirs of original defendant Nos. 1 and 2 on record. The learned Single Judge permitted respondent Nos. 1 to 3 as heirs of defendant Nos. 1 and 2 to be brought on record and added as defendant Nos. 1 to 3. Cause title of the plaint was ordered to be amended accordingly. 5. It is the case of the plaintiff that the original defendant No. 2 Surjiv, tried to induct some other persons in breach of the injunction order granted by this Court. This fact came to their knowledge only after the defendant No. 2 died. The learned Single Judge while disposing of the Chamber Summons on 11-12-2008, permitted the plaintiff to take out notice of motion for further reliefs if so required. The appellants who have been subsequently arrayed as defendant Nos. 4 and 5 claimed that original defendant No. 2, Surjiv Bedi, claiming to be tenant of the premises transferred his tenancy rights to them by a document dated 27-04-2006 for a sum of Rs. 1.75 crores. 6. Subsequently, plaintiff took out Notice of Motion No. 15 of 2009 on the ground that in spite of the order of injunction, the original defendant No. 2 has transfered the suit property in favour of defendant Nos. 4 & 5. It is the case of the plaintiff that the suit is filed against the original defendants on the basis of trespass and even though, a specific injunction order is passed by this Court on 11-12-2000, restraining the defendants from parting with the possession of the suit premises, the original defendant No. 2 Surjiv, has created third party rights and inducted defendant Nos. 4 and 5 in the portion of the suit premises admeasuring 1500 sq.ft., in violation of the injunction order granted by this Court. The present defendant Nos. 1 to 3 continue to occupy remaining portion of the suit premises of about 1000 sq.ft. There is also an order of injunction restraining defendant Nos. 1 to 3 from creating any third party interest in connection with the suit property. 7. The plaintiff while taking out Notice of Motion No. 15 of 2009 also prayed that Court Receiver may be appointed in respect of entire suit flat. It is the case of the plaintiff that since original defendant Nos. 1 and 2 were trespassers, on that basis, the heirs of defendants who have been brought on record subsequently as defendant Nos. 1 to 3, should also be treated as trespassers and decree should be passed against them. Interim injunction was pressed into service which is granted by the learned Single Judge of this Court. 8. At the time of deciding the notice of motion, no reply was filed by the defendant Nos. 1 to 3. However, defendant Nos. 4 and 5 who have been inducted subsequently, in breach of the injunction, filed their reply resisting the said prayer on the ground that no case is made out for appointment of the Court Receiver. It is the case of the defendant Nos. 4 and 5 that original defendant Nos. 1 and 2 were occupying the premises as licencees and therefore, the suit is not maintainable on the Original Side of this Court in view of Section 41 of The Presidency Small Cause Courts Act, 1882, as the suit is required to be filed with the Small Causes Court, at Mumbai and therefore, the order of injunction granted by this Court is without jurisdiction. 9. The learned Single Judge found that the defendant Nos. 4 and 5 have been inducted in the suit premises in breach of the order of injunction of this Court and accordingly, they have no right to use the suit flat at all. The learned Single Judge further directed that the Court Receiver shall take possession of the suit premises occupied by the aforesaid defendant Nos. 4 and 5. The remaining portion was allowed to continue with the defendant Nos. 1 to 3, though the Court Receiver was appointed even for this portion. The learned Single Judge also... |
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