Bombay High Court
Mulji Umershi Shah And Etc. vs Paradisia Builders Pvt. Ltd. And ... on 6 February, 1997
Equivalent citations: AIR 1998 Bom 87, 1997 (4) BomCR 97, 1997 (3) MhLj 532
R.M. Lodha, J.
1. This group of six appeals arises out of the order passed by the City Civil Court, Bombay on 2nd November, 1996 in Notice of Motion No. 2608 of 1996 in Suit No. 2784 of 1996.
2. The facts have been stated in details in the
impugned order and, therefore, I would recapitualate briefly the essential and necessary facts for disposal of these appeals only.
3. The disputed property comprises of gala Nos. 1, 48, 68, 15, 16, 17, 18, 26 on the ground floor, all galas on the entire first floor and gala Nos. 201, 216 to 226 on the 2nd floor of Bezzola Commercial Complex, Sion Trombay Road, Chembur, Mumbai. Mulji Umershi Shah, the plaintiff and appellant in Appeal No. 39 of 1997 filed a suit before the City Civil Court on 24th May, 1996 initially impleading the State of Maharashtra, Paradesia Builders Private Limited and the Municipal Corporation for Greater Bombay as defendants Nos. 1 to 3 respectively. Thereafter the defendants Nos. 4 to 24 have been impleaded in the suit. The crux of plaintiff's relief in the suit was that defendant No. 2 Paradesia Buildings Private Limited is not entitled to dispossess the plaintiff or interfere and/or disturb his possession in respect of the suit premises and decree for permanent injunction accordingly.
The basis of the plaintiff's claim rests on the averment that he had 25% share in the building Bozzola Commercial Complex built by defendant No. 2. The plaintiff averred that the disputed property built on the land originally owned by one Shri Khatau Bhanji who died on 18th April, 1967 leaving behind his wife Lilavati (defendant No. 4) and minor son Kiritkumar. The deceased left behinda will dated 9th July 1966 and the executors mentioned in the will were his wife Smt. Lilavati, her brother, two partners of the deceased and Jayantilal. The dispute arose between the executors which resulted in filing of the suit before this Court on the original side. In that suit Court Receiver was appointed who came in possession. The plaintiff claims that he helped Smt. Lilavati in conduct of the said litigation and in lieu thereof Lilavati executed writing on 29th March, 1971 stipulating that the suit plot would go to the plaintiff after discharge of the Court Receiver. On 15th December, 1977 the suit was dismissed and Court Receiver was directed to hand over possession to Lilavati. An agreement was executed, according to the plaintiff, with Lilavati on 1st May, 1978 confirming plaintiff's status as a lessee in respect of the suit land and factory standing on the part of the land. By the said agreement the plaintiff was permitted to develop the property and raise new construction at his
costs on the terms and conditions mentioned therein and to create lease in respect of the new construction in the suit land. There was an agreement for lease of the suit land dated 15th April, 1978 between Smt. Lilavati and Gala Construction for 98 years on monthly rent of Rs. 6000/- and other terms and the said lease agreement was cancelled on 22nd January 1981. The plaintiff avers that vide agreement dated 22ndJanuary 1981 between Smt. Lilavati and M/ s. Gala Construction wherein the plaintiff was confirming party, his claim of entitlement to 25% of the total built up area and the development on the said property free of cost was confirmed. The plaintiff has further set out a case that on 20th May, 1981 Smt. Lilavati executed an agreement of lease in favour of the defendant No. 2 Pardesia Buildings Pvt. Ltd. On 11th September, 1981 the lease deed was executed between Smt. Leelavati, Kirit Kumar and defendant No. 2 which was signed by the plaintiff as constituted attorney on behalf of Smt. Lilavati and in the said lease deed also the defendant No, 2 as lessee agreed to take over and fulfil obligation of providing 25% share in the total built up area. The building was complete in the year 1987 and Bombay Municipal Corporation granted full occupation certificate regarding the entire building. The plaintiff avers that he asked Smt. Lilavati and the defendant No. 2 for possession of 25% of built up area and execution of documents and in answer thereto the defendant No. 2 informed the plaintiff that they had executed documents in favour of its employees, close relations, friends but these documents were executed only for lax puiposes and defendant No. 2 promised to hand over to the plaintiff part of ground floor, the entire first floor and part of second floor towards his 25% share in the building. The plaintiff wrote a letter to the defendant No. 2 dated 28th June, 1995 to put him in possession of the area to wh ich he was entitled and after various meetings on 12th July, 1995 the defendant No. 2 handed over possession of various galas on ground floor entire first floor and part of second floor as stated in the plaint and since then the plaintiff has been occupying galas for business purposes. According to the plaintiff, on 22nd May 1996, the dispute arose between the plaintiff and defendant No. 2 and he was threatened that he would be forcibly dispossessed. The plaintiff lodged complaint on 25th May 1996 and filed the
suit on 24th May, 1996. Along with the plaint, the plaintiff produced number of documents, inter alia, sketch plan, agreement dated 29th March, 1971, agreement dated 1 st May 1978, minutes of the agreement dated 21st January 1981, lease deed dated 11th September 1991 between Smt. Lilavati and defendant No. 2, letters dated 20th June, 1995, 12th July, 1995 and 23rd May, 1996. The plaintiff also took out notice of motion and submitted affidavits including that of Shri Jawahar Gala and contractor. On 25th May, 1996 an ad interim order was passed by the vacation Judge of the City Civil Court. Against the ad interim order passed by the vacation Judge of the City Civil Court, an appeal was preferred before this Court by the defendant No. 2 and the said appeal was disposed of by this Court by directing the trial Court to hear and decide the notice of motion expeditiously and Commissioner was appointed forinspection of the site, the Commissioner visited the site on 10th August, 1996 and submitted his report. The defendant No. 2 filed the affidavit in reply to the notice of motion on 12th September, 1996 and admitted that Smt. Lilavati was the owner of the plot in question. According to defendant No. 2, on 8th April 1978 an agreement of lease was entered into between Smt. Lilavati and M/s. Gala Construction on the terms and conditions mentioned therein with an option to purchase reversion. The said agreement dated 8th April, 1978 was signed by the plaintiff as constituted attorney of defendant No. 4 Smt. Lilavati. The said agreement was cancelled on 22nd January, 1981 and the minutes cancelling the agreement between Smt. Lilavati and M/s. Gala Construction were recorded. The defendant No. 2 set up the plea that the minutes dated 22nd January. 1981 relied upon by the plaintiff were forged and fabricated. According to defendant No. 2, on 28th May, 1981 an agreement for lease was executed between Lilavati, her minor son Kiritkumar and defendant No. 2 and the said agreement was initiated by the plaintiff as constituted attorney of Smt. Lilavati. On 11th September, 1981 pursuant to the agreement of lease dated 20th May 1981, indenture of lease was executed between Lilavati, her son Kirit Kumar and the defendant No. 2. However, according to defendant No. 2, the document of lease deed, dated 11th September, 1981 relied upon by the plaintiff was forged and fabricated and the copy
of the genuine indenture of lease was placed on record by the defendant No. 2. The defendant No. 2 denied having handed over possession to the plaintiff on 12th July, 1995 as alleged and according to it, letters dated 12th July, 1995 and 10th April, 1996 were fabricated by procuring bank signed letter head through his nephew Shri Dinesh Gala. The defendant No. 2 denied having any privity between plaintiff and defendant No. 2 and stated that it has sold the disputed galas to various purchasers and possession thereof has been given to the respective purchasers. In affidavit in reply, the defendant No. 2 also slated that the plaintiff has illegally and fordibly changed locks on the units on ground floor, first floor and second floor and had tried to usurp possession. Thus, the defendant No. 2 denied the plaintiff's right, title or interest in the property in question or his claim of 25% share in the built up area. Number of circumstances were pointed out in the affidavit in reply by defendant No. 2 to demonstrate that the documents, namely, minutes of agreement dated 22nd January 1981, the lease deed dated llth September, 1981 and the letters dated 12th July 1995 and 10th April, 1996 relied upon by plaintiff were forged and fabricated. The defendant No. 2 in support of its averments made in the affidavit in reply relied upon various documents, inter alia, letter dated 9th July 1996 written by it to Deputy Inspector of Inspection and Deputy Controller of Stamps, Bombay, to take charge of the lease deed forged by the plaintiff, letter dated 11th July, 1996 written by defendant No. 2 to Deputy Inspector, copy of the lease deed dated 11th September, 1981 as relied upon by defendant No. 2, handwriting expert's report regarding minutes of the agreement dated 22nd January 1981, the letter from Superintendent of Stamps dated 13th May 1982, Form 37( 1) signed by the plaintiff for obtaining no objection certificate, the letter dated 11th April, 1986 from Smt. Lilavati, defendant No. 4 which was signed by plaintiff as her constituted attorney to Shri Romer Dadachandji, plaintiffs letter dated 31st October, 1991 as constituted attorney of defendant No. 4 to Bombay Municipal Corporation, the minutes of the agreement dated 22nd January, 1981 which according to defendant No. 2 was genuine, agreement dated 8th April, 1978 between Smt. Lilavati, which was signed by the plaintiff as her constituted attorney and Gala Constructions, plaintiff's affidavit confirming the agreement
dated 8th April, 1978 with Gala Construction and their possession and requesting competent authority to grant exemption, the declaration under Urban Land Ceiling and Reflation Act dated 28th July, 1980 signed by the plaintiff and plaintiffs affidavit dated 8th December, 1986. The other defendants also filed their affidavits in reply. The plaintiff appears to have filed affidavit in rejoinder on 14th October 1996. The trial Court thereafter heard the learned Counsel forthe parties and did not find any merit in the notice of motion taken out by the plaintiff for grant of temporary injunction. However, looking to the peculiar and exceptional circumstances prevailing, the trial Court by the impugned order dated 2nd November, 1996 appointed Court Receiver of this Court as Receiver in respect of gala Nos. 48, 68, 15, 16, 17, 18, 26 on the ground floor, entire first floor and gala Nos. 201, 216 to 226 on second floor of Bezzola building. The Receiver was directed to appoint the respective purchasers (defendant Nos. 4 to 25) in respect of these galas without requiring them to pay security deposits. The Receiver was also directed to fix the monthly royalty of each Gala and directed the respective agents to deposit 1/4th of such amount per month subject to revision after every five years and the said amount was to be invested and interested in the approved scheme of any nationalised bank. As regards gala No. 1, the plainti ff was permitted to remain in possession and the defendants were restrained from disturbing his possession during the pendency of the suit. The trial Court also directed that front side Gala No. 17 would remain in possession of the plaintiff and defendants shall not disturb his possession and the back side of gala No. 17 would remain in possession of defendant No. 2. The plaintiff, defendant No. 2 and defendant No. 8 were directed not to create any third party rights in respect of gala No. 17. This order passed by the City Civil Court on 2nd November, 1996 is challenged in this group of six appeals.
4. The principal and main appeal is A.O. No. 39 of 1997 filed by plaintiff aggrieved by the impugned order of appointment of Court Receiver over the disputed Galas except Gala No. 1 and 17, Mr. K.K. Singhvi. the learned Senior Counsel appearing lot the plaintiff assailed the order passed by the trial Court raising the two-fold contentions.
(i) that in the suit for perpetual injunction filed by the plaintiff for protection of his possession
upon the notice of motion taken out by the plaintiff for temporary injunction, the Court below had no jurisdiction to appoint Receiver over the disputed property; and
(ii) that on the basis of the documents namely (a) minutes of agreement dated 22nd January, 1981 between the defendant No. 4 Lilavati, Gala and Company and the plaintiff as confirming party, and (b) the indenture of lease dated 4th September, 1981, it was prima facie established that the plaintiff has 25% share in the built up area of the Bezzola building. The plaintiff was also put in possession of the disputed galas by the defendant No.2on 12thJuly, 1995 which was duly supported from the letters dated 28th June 1995, 12th July 1995 and 10th April, 1996 and the Commissioner's report. Thus, the trial Court was not justified in rejecting the notice of motion taken out by the plaintiff for grant of temporary injunction.
5. In response to the contention raised by the learned Counsel for the plaintiff-appellant, on the other hand, Mr. Iqbal Chagla, the learned senior Counsel appearing for respondent Nos. 5, 7 and 9 to 24 in Appeal No. 39 of 1997 and Mr. V.R. Manohar, the learned senior Counsel with Shri M.M. Sakhardande for respondent-defendant No. 2, supported the orderpassed by the trial Court for appointment of Receiver while dismissing the notice of motion taken out by the plaintfff for temporary injunction. Mr. Chagala and Mr. Manohar, the learned senior Counsel submitted that the case set out by the plaintiff was not found true by the trial Court and the plaintiff was held not entitled to any temporary injunction against the defendant No. 2 and the purchasers and looking to the peculiar facts of the case where plaintiff sought to base his claim on forged and fabricated documents and also sought to prevent the entry of the purchasers to the respective galas by putting his locks on the disputed Galas on the ground floor, first floor and second floor, the trial Court did not commit any error in passing the order of appointment of Receiver. The learned senior Counsel for respondents would urge that once the trial Court found that the plaintiff was not entitled to any temporary injunction against the defendants, it could have either left to the parties to use their own devices for gaining possession or protection of possession as the case may be which could have resulted in parties taking law in their own hands or put the property in question in the Custodia legis
by appointing Receiver. In the facts and circumstances, the learned senior Counsel would submit recourse to second option was justified by the trial Court. Mr. Chagala, however, challenged the order passed by the trial Court directing the purchasers to pay 1/4th of the royalty in support of the appeals filed by the purchasers which I propose to deal later on.
6. I propose to take up second contention raised by Mr. Singhvi, the learned senior Counsel for the appellant first to find out whether the plaintiff was able to establish prima facie case about his claim of 25% share in the disputed property and whether the plaintiff was put in possession on 12-7-1995 as alleged. The two documents on which strong reliance is placed by the plaintiff are minutes of the agreement dated 22-1-1981 and the indenture of lease dated 11-9-1981 for showing that plaintiff has 25% share in the disputed building. There is no dispute that on 22-1-1981 the minutes of agreement were executed and on 11-9-3981 the indenture of lease was entered but according to defendant No. 2 the minutes of the agreement dated 22-1-1981 was between the defendant No. 4 Smt. Lilavati and M/s. Gala Construction Company Private Limited and not between the defendant No. 4 Smt. Lilavati, M/s. Gala Construction Company Private Limited and the plaintiff Mulji U. Shah, the confirming party as alleged. The defendant No. 2 has placed on record the true minutes of the agreement dated 22-1-1981 and according to it the minutes of the agreement relied by the plaintiff is forged inasmuch as pages Nos. 1 and 2 have been replaced. The few circumstances prima facie created serious doubts about the genuineness of minutes of the agreement relied on by plaintiff and the defence of the defendant No. 2 that the said document was forged and fabricated cannot be ruled out those circumstances are :--
(i) The pages 1 and 2 of the agreement are typed on different typewriter and the letters on pages 1 and 2 which have been replaced apparently differ from the admitted page 3.
(ii) though para 5 begins at admitted page 3 of the documents at page 2 of the document relied upon by plaintiff also there is para 5 :
(iii) The word 'Rs' typed out before figures at page 2, obviously and apparently differs from the word 'Rs' occurring at admitted page 3 before the
figures 1,20,000/- 10,000/- and 65,000/-; and
(iv) In para 1 of the minutes of agreement dated 22-1-1981 relied upon by the plaintiff, bracketed portion reads ; "hereinafter referred to as "the property". In para 6 which is at page 3 and the said page 3 is not disputed, the expression "the said property" is used. In contrast in the minutes of the agreement relied upon by defendant No. 2 in para. 1, the bracketed portion roads "hereinafter referred to as the said property".
7. It may also be observed that by the minutes of the agreement dated 22nd January 1981, the agreement for lease which was entered into between the defendant No. 4 and Gala Constructions was sought to be cancelled and apparently there was no justification for the plaintiff Mulji U. Shah being confirming party to the said minutes of the agreement and incorporating the clause that the "lessee" (M/s. Gala Construction Company Pvt. Ltd.) has agreed to provide to the confirming party free of costs on ownership basis 25% of the total built up area in the building to be developed on the said plot. If there were three parties to the agreement dated 22nd January, 1981 as purported to be made by the plaintiff on the basis of pages 1 and 2 of that document, then in para. 7 of the agreement, which is on admitted page 3, the expression "save and except as provided herein neither party has any claim or demand against other" would not have been there because the said expression did not make sense if there were in fact three parties as alleged by plaintiff.
8. Similarly, the plaintiff has heavily relied upon the indenture of lease dated 11th September, 1981 at pages 1751 to 1770 of the paper book executed between defendant No. 4 Lilavati, her son Kirit Kumar and the defendant No. 2 whereby it was agreed by defendant No. 2 to take over and fulfil obligation of providing 25% share in the disputed property. According to the defendant No. 2, the said document relied upon by the plaintiff is forged and fabricated since many pages have been replaced from the original document. The defendant No. 2 has placed on record the indenture of lease dated 11th September 1981, which according to it, is true and correct, at pages Nos. 1771 to 1799. The document dated 11th September 1981 is a registered document and according to defendant No. 2 the forgery and replacement has taken place in the office of Sub-
Registrar by the plaintiff in connivance with the officials of the office of concerned sub-Registrar. Certain circumstances indicate prima facie that the document sought to be relied upon by the plaintiff is not genuine. These circumstances are
(i) the indenture of lease dated 11th September, 1981 was preceded by the agreement for lease dated 28th May, 1981 and the said agreement does not mention at all about the plaintiff's right or possession over suit property though the agreement dated 28th May, 1981 admittedly bears initials of the plaintiff;
(ii) the draft of lease which was annexed with the agreement dated 28th May, 1981 and the indenture of lease relied upon by the defendant-No. 2 tallies substantially and materially with the draft lease deed annexed with the agreement dated 20th May, 1981 but the indenture of lease relied upon by the plaintiff is materially and substantially different from the draft lease annexed with the agreement;
(iii) in the declaration under Urban Land Ceiling and Regulation Act, submitted on behalf of defendant No. 4 Smt. Lilavati by the plaintiff as her constituted attorney, the agreement dated 8th April, 1978 executed in favour of Gala Construction Company and its possession over the suit property was admitted;
(iv) the Superintendent of Stamps wrote to the defendant No. 2 on 13th May, 1982 inter alia calling for information regarding tax rate mentioned in Clause 3(b) of the indenture of lease dated 11th September, 1981 at page 8. Clause 3(b) at page 8 referred to by Superintendent of Stamps tallies with the copy relied upon by the defendant No. 2 while in the deed of lease relied upon by the plaintiff Clause 3(b) finds place at page 9 and not at page 8;
(v) the plaintiff as constituted attorney of defendant No. 4 Smt. Lilawati signed Form 37(1) sent to the Income-tax Department with reference to the agreement dated 20th May, 1981 which did not refer at all about plaintiffs 25% share in the suit property;
(vi) In the power of attorney dated 11th Sept. 1981 executed by defendant No. 4 in favour of plaintiff and her son there is no mention whatsoever about the plaintiff's right of 25% share in the disputed property;
(vii) The building was partially complete in the year 1985 and fully complete in the year 1987 but for a period of more than 8 years there was no demand by plaintiff in writing claiming 25% shares in the property of its possession at any time earlier to the alleged letter dated 28th June 1985; and
(viii) the affidavit dated 23rd January 1986 filed by the plaintiff in the High Court stating that he was not concerned with the property.
In this back ground the trial Court's prima facie holding that these two documents relied upon by plaintiff were highly doubtful and full of suspicion cannot be faulted. I have only referred to the aforesaid circumstances to find out whether prima facie consideration of the entire matter by the trial Court suffered from any error warranting interference by this Court. The observations made hereinabove are only prima facie and should not be construed as final decision in the matter about the genuiness or otherwise of the aforesaid documents relied upon by the plaintiff since it is only after the recording of the evidence in the trial that definite opinion could be formed whether the documents dated 11th Sept. 1981 and 22nd January, 1981 relied upon by the plaintiff were forged and fabricated or not. However, prima facie, these documents relied upon by the plaintiff, on the basis of the attending circumstances do not inspire any confidence and rightly held to be so by the trial Court.
9. As regards possession, according to the plaintiff, he was put in possession by the defendant No. 2 on 12th July 1995. The letter dated 12thJuly 1995 evidencing the delivery of possession has been denied by the defendant No. 2. According to defendant No. 2 this document has been prepared on the blank letter head signed by Shri Jigger Shah in connivance with Shri Dhiren Shah. The contention of defendant No. 2 does not seem to be without basis. When the letter dated 12th July 1995 and another letter dated 10th April, 1996 relied upon by the plaintiff are closely seen, prima facie it appears that these letters were typed out on signed and sealed blank letter heads of Pardesia Builders Private Limited defendant No. 2. A look at the letter dated 12th July, 1995 would show that the space left at the top was far less to ensure that-the contents were completed above the seal of Paradesia Builders Private Limited. The letter dated 12th July 1995 is allegedly in response to
the letter written by plaintiff on 28th June 1995 to the defendant No. 2 Pardesia Buildings Private Limited asking it to give possession of galas in the disputed property towards plaintiff's 25% share. It would be curious to note that though the construction of the building was completed in the year 1987, the first letter written by plaintiff is almost after 8 years i.e. on 28th June 1995 and according to the plaintiff, immediately thereafter within two weeks the possession was handed over on 12th July 1995. Assuming for arguments sake that plaintiff was entitled to 25% share in the property constructed by defendant No. 2 as claimed by him, the building was complete admittedly in the year 1987 and if for eight years for one reason or the other, the defendant No. 2 did not hand over possession to plaintiff his share in the property then there was nothing extra-ordinary that on receipt of the letter dated 28th June 1995, the defendant No. 2 would hand over possession to the plaintiff immediately as is sought to be made on the basis of letter dated 12th July 1995. If the defendant No. 2 continued to avoid its obligation in handing over possession of galas in the disputed building towards plaintiff's 25% share, there seems no reason that on the basis of one single letter dated 28th June, 1995. the defendant No. 2 would hand over the possession of 25% share in the building to the plaintiff. These circumstances indicate that the letter dated 12th July 1995 is not free from doubt and it cannot be relied upon and believed prima facie to hold that the plaintiff was put in possession of Gala No. 1, 4B, 6A, 15, 16, 17, 18 and 26 on the ground floor, entire first floor with terrace and Gala Nos. 201, 216 to 226 on the second floor of the disputed building. The trial Court has considered this aspect and did not find the letters dated 12th July 1995 and 10th April 1996 reliable. Prima facie, there is no justification for me to take different view. The claim of the plaintiff is based on minutes of the agreement dated 20th January 1981 and indenture of lease dated 11th Sept. 1981 which prima facie have been found doubtful. Similarly letters dated 12thJuIy, 1995 and 10th April, 1996 whereby the plaintiff claims to have received possession also appear to be highly doubtful and, therefore, prima facie the plaintiff has failed to establish that he was put in possession of the disputed gala on 12th July 1995 by defendant No. 2 as claimed by him.
10. The learned senior counsel for the appellant
also relied on the Commissioner's report to demonstrate prima facie that on the date of inspection of the site by the Commissioner, the plaintiff was found in possession of the disputed property. It may be observed that the Commissioner was appointed by this Court on 5th August 1996 while disposing of A.O. No. 651 of 1996 and pursuant therein the Commissioner inspected the site on 10th August 1996. The Inspection of the site by the Commissioner took place almost after 21/2 months of the filing of the suit. According to defendant No. 2, the plaintiff came in possession of the disputed property on 24th May, 1996. From the Commissioner's report it appears that on all Galas on the ground floor, plaintiff's locks were found and keys of locks were produced by plaintiff s son. The entry to the first floor had also locks of the plaintiff and keys were supplied by plaintiff's son to the Commissioner. So was the situation regarding the disputed galas on second floor. However, except Gala No. 1, and part of Gala No. 17 no activity of plaintiff was found by the Commissioner to draw inference that plaintiff was using or enjoying the user of the said galas. The best that can be inferred from the Commissioner's report is that the plaintiff's possession appeared to be of recent origin except gala No. 1 and part of gala No. 17. The trial Court while considering this aspect observed that plaintiff surreptitiously and unceremoniously entered the suit galas prior to the filing of the suit, but not on the date i.e. 12th July 1995 as claimed. The trial Court observed that plaintiff moved quite methodically as he got the documents ready i.e. minutes of the agreement dated 21st January 1981, the indenture of lease dated 11th Sept. 1981, the letters 12th July 1995 and 11th April, 1996 and then he entered the property in question though quietly. From the overall circumstances which have come on record, I find that prima facie conclusion reached by the trial Court that the plaintiff's possession over the disputed galas was of recent origin and he came in possession of the aforesaid property after creating the aforesaid documents cannot be faulted. The trial Court, therefore, cannot be said to have committed any error in refusing to grant temporary injunction in favour of plaintiff relating to the disputed property except Gala No. 1 and 17.
11. Mr. Singhvi, the learned senior counsel for appellant-plaintiff sought to urge that in the suit
for injunction based primarily on possession, question of title cannot be gone into and therefore while considering the application for temporary injunction the only consideration before the Court was possession and not the title of plaintiff. The contention is neither impressive, nor sound. In the suit for perpetual injunction the Court, may be called upon to hold inquiry in the, right, interest or status, as the case may be, of the plaintiff to find out whether plaintiff is entitled to protection of his possession by decree of injunction. The same consideration, prima facie, is required to be seen while considering an application for temporary injunction. Thequestion of possession presupposes lawful possession and for adjudication of that question whether finally or at interlocutory stage, the inquiry into title, right, interest or status of plaintiff is not foreign to the subject matter.
12. Now I take up the first contention urged by the learned, senior counsel for the appellant-plaintiff that the trial Court was not justified in appointing the Receiver in respect of the disputed galas exempt gala No. 1 and 17 while refusing to grant any temporary injunction in favour of the plaintiff in the absence of any application for appointment of Receiver by any of the parties. Mr. Singhvi, the learned senior counsel strenuously contended that plaintiff's suit was a suit for perpetual injunction simpliciter and in such suit if the Court was not satisfied prima facie that the claim set out by the plaintiff and his possession was not established, the application for temporary injunction could have been rejected but no order of appointment of Receiver could have been made. He would urge that the order at the interlocutory stage is passed only in the aid of final relief and looking to the nature of the suit filed by the plaintiff which was a suit for injunction simpliciter, an order of appointment of Receiver cannot be said to be an order in aid of final relief claimed in the suit. He, therefore, submitted that the order passed by the trial Court appointing Receiver was without jurisdiction and suffered from serious error of law.
13. Section 94 of the Code of Civil Procedure speaks of supplement proceedings and provides inter alia that the Court may appoint a receiver of any property and make such interlocutory order as may appear to the Court to be just and convenient to prevent ends of justice from being defeated if it is so prescribed. Section 151 saves the inherent
powers of the Court in making such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Rule 1 of Order 39 empowers the Court in issuing temporary injunctions and passing any interlocutory orders in a suit wherein any property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or make such other order of the purpose of staying or preventing the wasting, damaging, alienation, sale, removal ordisposition of the property. Under 40, Rule 1 makes the provision of appointment of Receiver of any property where it appears to the Court to be just and convenient. The crucial question, thus, is : whether on the face of the aforesaid provisions, in the Code of Civil Procedure, the Court below had no jurisdiction and was unjustified in appointing the Receiver to the disputed property except Gala No. 1 and Gala No. 17 while rejecting the application made by the plaintiff for the grant of temporary injunction in a suit for perpetual injunction against the defendants and in the absence of any application for appointment of Receiver by any of the parties.
14. In Dar Prasad v. Gopikishan, AIR 1914 All 4 (2), the Division Bench of the Allahabad High Court held that where in an application for temporary injunction made by the plaintiff the Court ordered appointment of Receiver, the said order was not ultra vires. The Division Bench held thus:--
"The order is attacked before us on the ground that it is ultra vires and that it would not have been passed upon an application for a temporary injunction made by the defendants, which was pending before the District Judge when he passed the order under appeal. We think that although the District Judge did not stop to consider precisely under what portion of the Code of Civil Procedure he was acting, he has in effect appointed the plaintiffs to hold possession as Receivers of a portion of the property in suit and the defendants to do the same in respect of another portion. The order itself seems to us not ultra vires but one covered by the provisions of Order XL, Rule 1. It has been argued before us, however, that the effect of this order is to remove the defendants from possession or custody of property from which the plaintiffs had not a present right to remove them. We think this objection does not lie in the mouth of the defendants in view of the
attitude taken up by them in their written statement. As for the plea that the order complained of should not be have been passed on the application for a temporary injunction, we find that it was as a matter of fact passed upon a consideration of the allegations made in that application and in the reply filed on behalf of the plaintiffs and all the circumstances of the case as a whole. A Court has a right to proceed under Order XL, Rule 1, where it appears to it to be just and convenient to do so, and the order is not improper or illegal merely because it was made suo motu."
15. The Division Bench of the Madras High Court in Narayana Dossju Varu v. Madras Hindu Religious Endowments Board, , however, ruled otherwise and held that in a suit for an injunction it is not open to the Court to appoint a Receiver and thereby dispossess the plaintiff. The Madras High Court held thus (para 2) :--
"We have heard lengthy and exhaustive arguments on various aspects of the question from the learned counsel on either side. But, in our opinion, it is not proper in the circumstances of the case and in the view which we are taking, to give expression to any views of our own. The learned District Judge has not considered the question as to whether the property in dispute is in danger of being wasted, damaged, or alienated, or wrongfully sold in execution of a decree, as is necessary if Order 39, Rule 1 has to be invoked in favour of the appellant. Nor has the learned District Judge considered the question as to whether it is just and convenient to appoint a receiver. We may remark that there was no application either by the appellant or by the respondent for the appointment of a receiver. The only way in which the order of the learned District Judge appointing a receiver can be justified is by invoking the words in Order 39, Rule 1, namely "make such other order." It cannot be stated that this contemplated the appointment of a receiver. No authority has been brought to our notice, which holds that if a plaintiff in a suit asks for an injunction restraining the defendant from interfering with his possession of the properties, it is open to the Court to appoint a receiver and thereby dispossess the plaintiff. As we are not expressing any opinion on the merits it seems to us that the reasons given by the learned District Judge for the appointment of a receiver in para. 5
of the judgment need not be canvassed at this stage. But, we feel that the lower Court erred in appointing a receiver on this application, for injunction by the plaintiff."
16. The judgment of the Allahabad High Court in Dar Prasad (AIR 1914 All 4(2)) (supra) the judgment of the Madras High Court in Sri Narayana Dossju. Varu, (supra), came up for consideration before the Division Bench of Travancore-Cochioi High Court in Chummar Ulahannan v. Kunjamathu Moitheen, AIR 1952 Travancore-Cochin 331. The Division Bench of the Travancore-Cochin High Court relied upon the decision of the Allahabad High Court in Dar Prasad (AIR 1914 All 4(2)) (supra) and held that in a suit, on an application for grant of temporary injunction to restrain defendants from entering upon the property, it is open to the Court to act under Order 40, Rule 1, C.P.C. and appoint receiver. The Division Bench of Travancore-Cochin High Court in Chummar Ulahannan (AIR 1952 Trav Co 331, Para 6) held thus :
"The question then arises as to how can this difficult situation created in the case partly on account of the conduct of parties and partly on account of the order passed by the Court below without sufficient justification, be got over without prejudice to any of the parties. If a receiver could be appointed during the pendency of the suit in order that possession may be made over to that party whose it is adjudged to be in the case, it would be a very satisfactory solution. We are however, faced with a difficulty which consists in that though there is an application for the appointmentof receiver made by the 3rd defendant, that is an application for the appointment of receiver only during the pendency of the petition for injunction filed by the plaintiffs, there is.no application made for the appointment of receiver during the pendency of the suit.
The question then arises whether on an application for injunction filed by one of the parties, it is competent for the Court to appoint a receiver 'suo motif that is, in the absence of an application made in that behalf. The provision regarding the appointment of receiver contained in the Code of Civil Procedure only requires that it should "appear to the Court to be just and convenient to appoint a receiver in this case. There is no prohibition contained anywhere in the Code of Civil Procedure that the Court
should not appoint a receiver 'suo motif i.e., in the absence of an application in that behalf filed by any of the parties. We consider that it is competent for a Court to appoint receiver 'suo motu' if it finds that step to be just and convenient in the circumstances of the case. We are supported in this view by the decision in 'Dar Prasad v. Gopikrishan', ILR 36 All 19 : (AIR 1914 All 4 (2)).
We therefore direct that the 3rd plaintiff be appointed receiver of the properties pending the suit. He will furnish security to the satisfaction of the Court below for the profits of the properties which is, for this purpose, estimated at Rs. 200/-per year. The security will be furnished for a period of two years from the date of the suit. The Court below is also directed to expedite the disposal of the suit. The 3rd plaintiff is directed to furnish security and assume charge of receivership within two weeks of the receipt of this order by the Court below. If he defaults in doing so, the 3rd defendant appellant is appointed receiver who will also give similar security."
17. The same view has been expressed by Travancore-Cochin High Court in Mathulla Ittan Pillay v. Ouseph Mannanda, AIR 1952 Travancore-Cochin 332 and Kochu Bava Kasim v. Kalu Amma Karthiyayani Amma, AIR 1952 Travancore-Cochin 330.
18. Before the Andhra Pradesh High Court in Ravi Lakshmaiah v, Nagamothu Lakshmi, the question was when it was found that defendant who applied for injunction was not in possession and the plaintiff was trying to secure possession and there was scramble for possession between the parties, the Court was justified in appointing receiver. The Andhra Pradesh High Court considered the aforesaid judgments of the Allahabad High Court, Madras High Court and Travancore-Cochin High Court and held thus (at pp. 381-82 of AIR) :--
"Under Order 39, Rule 1, C.P.C. the Court may by order grant a temporary injunction or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property as the Court thinks fit until the disposal of the suit or until further orders, thus, the Court has wide powers not only to grant a temporary injunction, but to make such other order for any of the
purpose referred to above. This would certainly include an order of the appointment of a receiver. It is true that in (supra) the learned Judges observed that the appointment of a receiver cannot be justified by invoking the words "make such other order" in Order 39, Rule 1 as it could not be stated that they contemplated the appointment of a receiver. These observations were really unnecessary for the purpose of that case as it was concerned with a case where the plaintiff was in possession and the learned Judges rightly held in such circumstances that the plaintiff could not be dispossessed in his application for injunction without an application for appointment of a receiver by the defendant. Further under Order 40, Rule 1, C.P.C. the Court has the power to appoint a receiver where it appears to the Court to be just and convenient. The said order does not require that there should be an application for the appointment of a receiver. Even without such an application, if the facts and circumstances are brought to the notice of the Court justifying the appointment of a receiver it may do so suo motu even without an application by way of the parties for that purpose. In this case, the Court, while hearing the application for an injunction came to the conclusion that it was just and convenient to appoint a receiver. We do not find anything either in Order 39 or Order 40, C.P.C. which would preclude the Court from passing such an order. On the other hand, on a reading together of Order 39, and Order 40, C.P.C. we are of the view that the Court is entitled to pass an order appointing a receiver even in an application for an injunction under Order 39, C.P.C. The decision of the Madras High Court in (supra) was distinguished by the same High Court in D.K. Raja v. P.S. Kumaraswami Raja, . It was held that in view of the terms of Order 39, Rule 1, C.P.C. allowing the Court to make such other order there could be no objection to the appointment of a receiver in an application for an injunction, if the plaintiff wants it in the alternative. It was, no doubt observed; "As stated in , if the plaintiff does not ask for a receiver and there is no application to that effect by the defendant it is not open to the Court purporting to act under Order 39, Rule 1, C.P.C. to appoint a receiver without any request from the parties." As pointed out earlier, in the case (supra) the plaintiff was
admittedly in possession and if an injunction was not to be granted but if his possession was to be disturbed by the appointment of a receiver, it could not be done without such a request on the part of the defendant., In this case, however, no such difficulty arises, as the second defendant who applied for injunction was herself not found to be in possession. The Court below also found that the respondent to the application was also not in possession and, therefore, there was no question of anybody's possession being disturbed by the appointment of a receiver.
In Chummar v. Kunjamathu, AIR 1952 Trav-Co. 331 it was held that there was no prohibition contained anywhere in the Code of Civil Procedure that the Court should not appoint a receiver suo motu in the absence of an application in that behalf filed by any of the parties. It is competent for a Court to appoint receiver suo motu if it finds that step to be just and convenient in the circumstances of the case. They relied upon the decision in Dar Prasad v. Gopikishen, ILR 36 All 19 : AIR 1914 All 4(2) in which it was held that an order of appointment of receiver is not improper or illegal merely because it was made suo motu. The decision in AIR 1952 Trav-Co 331 (supra) was followed by a Bench of the same Court in Kochu v. Kalu, AIR 1952 Trav-Co 330. They referred to the decision in (supra) and the observation contained therein that no authority was cited in support of the procedure adopted in appointing a receiver when the application was not for that relief, but for some other reliefs and pointed out that there was no dearth of authorities on this point and that the case in AIR 1914 All 4 (2) (supra) is a decision directly in point. We are in agreement with the views expressed by the Travancore-Cochin High Court in the above decision and in (supra).
It was further argued by the learned counsel for the appellant, that even assuming that it is permissible for the Court to appoint a receiver in an application foran injunction, the circumstances of the case do not warrant such appointment as there is no allegation or proof of waste or damage. In this case the facts found by the Courts below are that the second defendant-applicant is not in possession of the northern portion of the suit house. The deceased plaintiff was in possession thereof by virtue of the undertaking given by the
second defendant in the application for injunction filed by the plaintiff on the former occasion. After her death, the appellant did not get into possession of the property. He is no doubt claiming under a registered will executed by the plaintiff in his favour, but the will is not admitted. Though his case is that he was living with the plaintiff, it is admitted that he belongs to another village and he has got his own house in that village. The mere fact that he was permitted to reside with the plaintiff when the plaintiff was in possession does not mean that he was in possession of the suit.property. He is now attempting to secure possession. Thus, there is a scramble for possession between the second defendant on one hand and the appellant on the other. The appellant has not yet been made a party plaintiff in the suit as his application for that purpose is still pending. In those circumstances we are of the opinion that the Court below was perfectly justified in appointing a receiver."
19. In my view, in suitable cases, the Court is not powerless to pass appropriate order for appointment of receiver without any application by any of the parties while rejecting the application for temporary injunction. Such power of course has to be exercised sparingly and in exceptional cases where dismissal of an application for grant of temporary injunction may lead the parties to take law in their own hands and use their own devices either for protection of unlawful possession of recent origin or for gaining possession or such like circumstances. There is no impediment put by the Code of Civil Procedure in passing such order to prevent the ends of justice being defeated. Such order may be imminently required to be passed also so that possession may be made over to that party who is prima facie entitled to possession but is deprived by unlawful conduct or illegal act of the other party. An appointment of receiver can be made on the application of either parties to the litigation as well as suo motu and therefore, absence of application shall not preclude the Court from passing such order if it is just and convenient The cases may be varied and many. A party may not have any right to the property and still comes in possession of the property unlawfully and illegally which may be of recent origin and on that basis may seek to protect his possession by filing suit for injunction and by making an
application for temporary injunction. The Court may find that such person has no title, right or interest in the property and is not in lawful possession and, therefore, is not entitled to grant of any temporary injunction. To avoid grave situation where the parties may take law in their own hands even while temporary injunction has been refused, in the absence of any application, the Court may make an order of appointment of receiver. Such exceptional order is permissible under law to prevent larger mischief if it is just and convenient in the facts and circumstances of the case. There is nothing wrong if by taking such recourse the plaintiff who has ulawfully come in possession recently is dispossessed during pendency of suit. In suitable and appropriate case, if the trial Court appoints the receiver while rejecting the application for temporary injunction, it cannot be said that such power is without jurisdiction. I find myself in respectful disagreement with the abstract proposition of Madras High Court in Sri Narayan Dossgu Varu (supra) that in a suit for injunction it is not open to the Court to appoint a receiver. The view of Allahabad, Travancore, Cochin and Andhra Pradesh High Courts in the cases referred hereinabove appear to be more sound and to which I fully agree.
20. The plaintiffs case was not found prima facie true and correct by the trial Court and rather the documents on which the claim was sought to be based by the plaintiff were found to be forged and fabricated documents. According to the trial Court, the plaintiff surreptitiously and unceremoniously entered the suit galas before filing of the suit. The possession of the plaintiff in the disputed property was found to be of recent origin. The aforesaid findings arrived at by the trial Court prima facie cannot be faulted. In this back ground the dismissal of the temporary injunction application made by the plaintiff without there being an order of appointment of receiver may have likely in the very nature of dispute resulted in greater mischief and struggle for possession and could have led in grave situation because property in dispute comprises of three floors i.e. ground floor, first floor and second floor in a six floor building in which about two dozen people having rights and interests of ownership and possession prima facie are pitted against the plaintiff prima facie having no
title and has come in possession of disputed galas recently except gala No. 1 and part of gala 17. To avoid such grave and unpleasant situation, the order of appointment of Receiver was not only proper but just and convenient as well and that could have been passed in exercise of that discretion. The order of appointment of receiver jn the facts and circumstances was imminently just and proper and cannot be said to be arbitrary or without jurisdiction. Once the trial Court has exercised its discretion, ordinarily in relation to the discretionary reliefs the appellate Court does not interfere with such discretion unless such discretion is found to be patently erroneous or against the settled judicial principles or arbitrary or capricious. Present is not a case where the discretion exercised by the trial Court in appointment of receiver can be said to suffer from any such vice. In the peculiar facts and circumstances of the case, therefore, the appointment of receiver by the trial Court over the disputed property except gala No. 1 and 17 while rejecting the application for temporary injunction made by the plaintiff in the suit for perpetual injunction does not suffer from any error warranting interference by this Court.
21. Now, I may take up Appeal No. 37 of 1997. This appeal has been preferred by 18 purchasers who had purchased various galas from defendant No. 2. In the memo of appeal though grievance has been raised about the appointment of receiver yet during the course of arguments, Mr. Iqbal Chagala, the learned Senior Counsel candidly did not challenge the order passed by the trial Court so far as appointment of Court Receiver was concerned. The grievance in this appeal is only confined to the part of the order whereby the trial Court directed these appellants-defendants who have been appointed as agents of Court Receiver of the respective galas purchased by them for payment of 1/4th of the monthly royalty to be fixed by the Court Receiver. Mr. Chagala, the learned senior counsel submitted that the appellants were bona fide purchasers of the galas in question from defendant No. 2 and they being rightful owners there was no justification for the trial Court in directing them to pay l/4th of the monthly royalty to be fixed by the Court Receiver. Taking overall circumstances into consideration, I am of the view that the discretion exercised by the trial Court in directing
these appellants to pay 1/4th of the monthly royalty fixed by the Court Receiver is fair and reasonable. In case ultimately the plaintiff's suit is decreed by the trial Court, obviously the Court may be required to pass appropriate consequential orders to compensate loss occurred to the plaintiff for depriving him of the user and enjoyment of the property in question. By directing the appellants/defendants to make payment of l/4th of the monthly royalty to be fixed by the Court, the Court may be able to balance the equities if ultimately the plaintiff's suit is decreed and, therefore, the order directing the appellants/ defendants to make payment of 1/4th of monthly royalty cannot be faulted. Defendant No. 2 Paradisia Builders Pvt. Ltd. has also preferred an appeal registered as A.O. 35/97. At the time of dictation of this order, Mr. Sakhardande submitted that the order passed in A.O. No. 37 of 1997, which was preferred by purchasers will govern his appeal as well.
22. The defendant No. 8 Yash Benefit Trust who claims to be purchaser of gala No. 17 from defendant No, 2 has filed separate appeal bearing A.O. 38/97 against the impugned order and grievance raised in the appeal is confined to the direction given in the order that front side of gala No. 17 shall remain in possession of the plaintiff and the back side of gala No. 17 to remain in possession of defendant No. 2 but the plaintiff shall be given free access to it and to use it as his office jointly with defendant No. 2. The reasons on the basis of which the Court Receiver has been appointed for other galas namely gala Nos. 4B, 6B, 15, 16, 18 and 26 on the ground floor, entire first floor and gala Nos. 201, 2)6 to 226 on the second floor, in my view the Court Receiver also deserves to be appointed of gala No. 17 and there was no justification for the trial Court to pass an order in the manner it has been passed. If the order passed by the trial Court regarding gala No. 17 is allowed to stand, it is likely to create lot of problems and may result in grave situation. I am, therefore, of the opinion, that for entire gala No. 17 Court Receiver should be appointed. Looking to the facts and circumstances, the Commissioner's report and the nature of plaintiff's possession over gala 17, the Court Receiver shall appoint the plaintiff his agent.
23. Defendant No. 4, Smt. Lilavati has also preferred appeal bearing A.O. Stamp No. 3228 of
1997. The appeal is apparently time barred and the appellant has made an application for condonation of delay. The learned counsel for the plaintiff has no objection if delay in filing the appeal is condoned and appeal is disposed of on merits. Though in the appeal as well as in the application for condonation of delay a ground has been set out by defendant No. 4 that she was not served before the trial Court and Shri. Ashok Jain, Advocate had no authority to accept the notice on her behalf yet during the course of arguments Mr. A.K. Abhyankar, counsel for Defendant No. 4 submitted that he was not pressing the point about service. After hearing the counsel for the appellant-defendant No. 4 and counsel for the plaintiff, I am satisfied that for the self-same reasons for which the Court Receiver has been appointed of other disputed galas, the Court Receiver deserves to be appointed for Gala No. 1 as well. From the Commissioner's report it is clearly revealed that plaintiff has been carrying on readymade garment workshop in the said gala and his many machines and employees were found there. Plaintiff admittedly was appointed constituted attorney of defendant No1 4 long back. In this situation plaintiff deserves to be appointed as agent of Court receiver which I order accordingly.
24. Yet another appeal. A.O. 32/97 has been filed by defendant No. 6 Ramakant Powale. The grievance is confined only regarding the directions for payment of 1/4th royalty fixed by the Court-Receiver. I have already held while considering A.O. 37/97 that the direction of fixing of royalty by the trial Court for other galas was justified, fair and reasonable.
25. In the result, the order passed by the City Civil Court on 2nd November 1996 is confirmed so far as the appointment of the Court Receiver in respect of gala Nos. 4B, 6B, 15, 16, 18 and 26 on the ground floor and entire first floor and gala Nos. 201, 216 to 226 on the second floor of Bezzola building is confirmed. Further direction given by the trial Court to the Court Receiver to appoint respective purchasers/defendants as agents in respect of these galas without requiring them to pay the security deposit and requiring the respective defendants to deposit 174th of monthly royalty to be fixed by the Court Receiver is also maintained. As regards gala No. 1 and entire gala No. 17, the order passed by the trial Court is
modified and the Court Receiver, High Court, Bombay, is appointed Receiver in respect of gala No. 1 and entire gala No. 17 as well. The Court Receiver shall appoint the plaintiff as his agent in respect of gala Nos. 1 and 17 without any security deposit or monthly royalty.
26. Looking to the controversy involved, the trial Court shall expedite the hearing of the suit. All the appeals are disposed of accordingly.
27. Mr. Jain, the learned counsel for the plaintiff/appellant prays for some time to enable him to challenge the order passed by the trial Court and this Court before the Apex Court and till that time, the implementation and enforcement of the order passed by the trial Court on 2nd November 1996 and the present order should not be enforced. For a period of four weeks, the order passed by the trial Court on 2nd November 1996 and the present order shall not be gives effect to.
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