First Appeal No. 704 of 2010 with Civil Application No. 2799 of 2010. Case: Vinay Ambadas Kaikini and Ajit Maneshwar Shetty Vs Court Receiver. High Court of Bombay (India)
| Case Number | First Appeal No. 704 of 2010 with Civil Application No. 2799 of 2010 |
| Counsel | For Appellant: K.K.V. Kurup and For Respondent: Y.S. Bhate |
| Judges | R.G. Ketkar, J. |
| Issue | Limitation Act, 1963 - Section 22 |
| Judgement Date | September 13, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
R.G. Ketkar, J.
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Heard Mr.K.K.V.Kurup, learned counsel for the Appellants and Mr.Y.S.Bhate, learned counsel for the Respondent at length. Admit. Mr.Bhate waives service on behalf of the Respondent. By consent of the parties, appeal is taken up for final hearing forthwith.
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This appeal is preferred by the original Defendants challenging the judgment and decree dated 22nd February, 2010 passed by learned Judge of the Bombay City Civil Court at Bombay in S.C.Suit No.1154 of 2000. By that judgment, the learned trial Judge decreed the suit instituted by Respondent in terms of prayer clause (a). Appellants shall hereinafter be referred as original Defendants and Respondent shall hereinafter be referred as plaintiff. The facts giving rise to the filing of the present appeal are as under:-
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Plaintiff instituted suit for declaration that Defendants are tresspassers qua the premises bearing Room No.4 in Purshottam Building No.B, situate at Purchottam Tribhuwandas Road, Mumbai 400 004 (for short the suit premises) and for direction to the Defendants to quit, vacate and hand over vacant and peaceful possession of the suit premises in favour of the plaintiff for implementation of the orders passed by the City Civil Court, Mumbai. Plaintiff came with the case that one Narayan Shivram Thakur had filed S.C.Suit No.9083 of 1969 in the City Civil Court at Bombay for dissolution of partnership firm viz. Sunder Printing Press and for consequential reliefs therein against its partners Vishwanath Ramchandra Sawant being Defendant No.1 and Vasant Achyut Desai being Defendant No.2. Partnership was carrying on business from Room Nos.3, 4 and 6 in Purshottam Building No.B. Room Nos.3, 4 and 6 were tenanted premises. There was common rent receipts for Room Nos.3 and 4 which stood in the name of one Nanabhai Parab, original tenant of the said rooms. Even at present in respect Room Nos.3 and 4 rent receipts stand in the name of said Parab. The monthly rent of Room Nos. 3 and 4 is Rs.347/-. Plaintiff further asserted that rent receipts in respect of Room No.6 was and/or is in the name of Defendant No.2-Vasant Achyut Desai in Suit No. 9083 of 1969. Plaintiff and the Defendants in the the said suit were in use and occupation and possession of the Room Nos.3, 4 and 6 and were carrying on partnership business from the said premises. The rent of Room Nos.3 and 4 was regularly paid by Defendant No.2 - Vasant Desai in the said suit and after his death, by his heirs and legal representatives.
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Suit No.9083 of 1969 was amicably settled between the parties and they filed consent terms dated 27th April, 1981. Under clause 4 of the consent terms, Court Receiver, High Court, Bombay was appointed as a receiver of all assets of the suit partnership and also of tenancy rights of the premises held by the partnership firm, as also of the business carried on by the partnership firm. The decree came to be passed in terms of the consent terms dated 27th April, 1981.
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It is the case of the plaintiff that Defendant No.1 - Smt.Garijabai R.Kaikini and original Defendant No.2 - Ambadas Ramrao Kaikini in the present suit claimed to be heirs and legal representatives of Ramrao Kaikini who was purportedly in possession of the suit premises. Presently Defendants No.3- Ajit M.Shetty is in possession of the suit premises illegally and he was put in possession by Smt.Girijabai and Ambadas Kaikini.
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Plaintiff further asserted that in Suit No.9083 of 1969, said Ramrao took out Notice of Motion No.1176/1982 for possession of Room No.3, alleging that the same was handed over by Court Receiver to Mr. Ashok Vishwanath Sawant, son of Defendant No.1 in Suit No.9083 of 1969. Said Ramrao also sought protection against eviction from suit premises and prayed that he should not be evicted from the suit premises without following due process of law. Said Notice of Motion was opposed by Mr.Ashok Vishwanath Sawant by filing reply.
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Plaintiff further asserted that Vasant Achut Desai, Defendant No.2 in Suit No.9083/1969 took out Notice of Motion No. 2159/1982 in the said suit for direction to the Court receiver to take possession of the suit premises from the said Ramrao in terms of the consent terms dated 27th April, 1981. Notice of Motion No.1176/1982 as also Notice of Motion No.2159/1982 were disposed of in terms of the consent terms dated 13th July, 1982 entered into between the parties to the suit as also said Ramrao and Ashok Sawant. In clause (2) of the said consent terms, Applicant No.1 Ramrao handed over symbolic possession of the suit premises and the Court Receiver was permitted and authorised to adopt legal proceedings against Ramrao for obtaining actual physical possession from him.
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It is the further case of plaintiff that plaintiff and Defendants in Suit No.9083 of 1969 came to know about death of Ramrao and therefore constituted attorney of the plaintiff in Suit No. 9083 of 1969 addressed a letter dated 16th February, 1994 to the Court Receiver (plaintiff herein) and requested the later to make enquiries about physical possession of the suit premises. Pursuant to this letter, the constituted attorney of the plaintiff in Suit No.9083 of 1969, Mr.Prashant Joshi, one of the officers of plaintiff herein, visited the suit premises on 8th October, 1996 and found Defendant No.3- A.M.Shetty and his employees in possession and they were using the suit premises for manufacture of Agarbattis. Said officer prepared report dated 8th October, 1996. During the visit of the officer it was revealed that the said Ramrao expired on 5th February, 1986. Plaintiff therefore convened meeting in it's office on 9th December, 1996 and called upon Defendant No.1 Smt.Girijabai and original Defendant No.2 Mr.Ambadas to quit, vacate the hand over vacant possession. Smt.Girijabai and Mr.Ambadas took out the Chamber Summons No.54 of 1996 in Suit No.9083 of 1969 for substitution of their names in place of original applicant Ramrao Kaikini. On 12th March, 1997 order was passed in the said Chamber Summons directing the Court Receiver to visit the suit premises to find out as to who is in actual possession. The officer of the Court Receiver visited the premises on 12th March, 1997 at 4.30 p.m.and submitted report dated 13th March, 1997. Chamber summons was dismissed on 20th March, 1997 and the learned Judge of the City Civil Court directed the plaintiff herein to institute suit against the persons found in possession of the suit premises on or before 13th April, 1997.
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Plaintiff further asserted that Defendant No.1 - Smt.Girijabai and original Defendant No.2 Mr.Ambadas took out Notice of Motion No.2622 of 1998 in Suit No.9083 of 1969 for transferring tenancy rights of the premises in favour of Appellants-Defendants Nos.1 and 2. Plaintiff further submitted that, as such the Defendants...
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