Mrs. Aajul Abubakar Abdul Rauf ... vs Mumtaz Khan Khudabaksh Of Surat ...
2017 Latest Caselaw 9555 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 1879 OF 2017


1     Mr. Aajul Abubakar Abdul Rauf Khan             ]
      adult, Indian inhabitant                       ]
      residing at: Bright Apartments, 1st floor      ]
      Flat No.1, CTS No.6825, Village Kolivary,      ]
      Kolekalyan, Off. Kalina Kurla Road,            ]
      Santacruz (E), Mumbai 400 055.                 ]
                                                     ]
2     Mr. Kamar Abubakar Abdul Rauf Khan             ]
      residing at: Bright Apartments, 1st floor      ]
      Flat No.1, CTS No.6825, Village Kolivary,      ]
      Kolekalyan, Off. Kalina Kurla Road,            ]
      Santacruz (E), Mumbai 400 055.                 ]
                                                     ]
3     Amanullah Abubakar Khan Alias                  ] Petitioners
      Manubhai, Indian inhabitant,                   ] Original defendant
      residing at: Bright Apartments, 1st floor      ] Nos. 2(a), 2(b), 3 & 4
      Flat No.1, CTS No.6825, Village Kolivary,      ]
      Kolekalyan, Off. Kalina Kurla Road,            ]
      Santacruz (E), Mumbai 400 055.                 ]
                                                     ]
4     Atarunnisa w/o Amanullah Abubakar              ]
      Khan, Indian inhabitant,                       ]
      residing at: Bright Apartments, 1st floor      ]
      Flat No.1, CTS No.6825, Village Kolivary,      ]
      Kolekalyan, Off. Kalina Kurla Road,            ]
      Santacruz (E), Mumbai 400 055.                 ]

                                   Versus


1     Mumtaz Khan Khudabaksh of surat,          ]
      aged about 66 years, adult, Indian        ]
      inhabitant,                               ]
      residing and carrying on business of      ]
      Meena Hotel, Main Road, Main Road, Olpad ]
      Dist. Surat, Gujrat and having address in ]
      Mumbai at c/o Galaxy Apartments, "B"      ]
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      Wing, Room NO.308, Near Jain Mandir        ] Respondents
      Road, Bandra (W)                           ] Respondent No.1
      Mumbai 400 050                             ] orig. plaintiff.
                                                 ]
2     Mumtaz Khan Khudabaksh of surat            ]
      aged about 66 years, adult, Indian         ]
      inhabitant,                                ]
      residing and carrying on business of       ]
      Meena Hotel, Main Road, Olpad              ]
      Dist. Surat, Gujarat and having address in ]
      Mumbai at c/o Galaxy Apartments, "B"       ] Respondent No.2
      Wing , Room No.308 Near Jain mandir        ] Orig. defendant
      Road, Bandra (W), Mumbai 400 050.          ] No.2
                                                 ]
3     State of Maharashtra,                      ]
      to be served to                            ]
      Government Pleader, High Court,            ] Respondent No.3
      (A.S.), (Writ Cell), Mumbai                ]


      •   Mr.Mangesh Patel for the Petitioners.
      •   Mr. S.A. Jabbar for Respondent Nos.1 and 2.


                  CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

CLOSED FOR JUDGMENT                  : 11 th DECEMBER, 2017.
JUDGMENT PRONOUNCED                   : 13 th DECEMBER, 2017



JUDGMENT :-

1]                Rule. Rule made returnable forthwith. Heard finally with

consent of learned counsel for both the parties.

2] By this Writ Petition filed under Article 226 and 227 of the

Constitution of India, the Petitioners are challenging the order dated

25th October, 2016 passed by City Civil Court Dindoshi, Mumbai in S.C.

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Suit No.1141 of 2013, thereby making Notice of Motion No.2964 of

2015 filed therein absolute in terms of prayer Clause (a), (d), (f) and

(g).

3] Facts of the Writ Petition are to the effect that the

Petitioners herein are the original Defendant Nos.2 (a), 2(b), 3 and 4.

Respondent No.1 has filed a suit against them for seeking possession

of the suit flat on the ground that their possession is that of rank

trespassers and Respondent No.1 being the owner of the said flat is

entitled to get the said possession. During pendency of the suit

Respondent No.1 filed the Notice of Motion No.1128 of 2013 for

appointment of Court Receiver under Order No. XL Rule 1 of Code of

Civil Procedure. The said Notice of Motion was allowed by the Trial

Court vide order dated 15th December, 2014 and the Court Receiver,

High Court, Bombay, was appointed to take possession of the suit flat

with a further direction that the Court Receiver shall continue the

possession of Defendants over the suit flat on the condition that the

Defendants shall pay rent of Rs.10,000/- per month from the date of

taking possession by Court Receiver till decision of the suit and the

amount of rent was to be deposited in the Court. The Defendants were

also restrained from alienating or creating any third party interest in

the suit flat till decision of the suit.

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4]                Respondent        No.1/Plaintiff   then     filed     a    Motion        for

"Speaking to the Minutes" of the said order, pursuant to which the

order was clarified to the extent that the word "rent" was replaced by

the word "royalty". However, so far as the other reliefs claimed by the

Plaintiff in the said motion of Speaking to the Minutes, like directing

the Defendants to execute the Agreement of Agency with Court

Receiver and also the prayer that the amount of royalty fixed by the

Court in the said order was not in consonance with the market rate

came to be rejected.

5] Being aggrieved thereby, the Respondent No.1/Plaintiff

filed Writ Petition No.5693 of 2015 before this Court. The said Writ

Petition came to be disposed of by holding that no interference is

warranted in the impugned order. However, liberty was granted to the

Respondent No.1 to file an appropriate application before the Trial

Court in respect of his grievance about the direction to the Defendants

to execute an Agreement of Agency and also about the amount of

royalty being not in consonance with the market rate.

6] Accordingly, the Respondent No.1 filed the Notice of

Motion No.2964 of 2015 before the Trial Court seeking these various

reliefs as laid down in prayer Clause (a), (d), (f) and (g). The Trial

Court after hearing learned counsel for both the parties was pleased to

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allow the said Notice of Motion in terms of the prayer clause (a), (d),

(f) and (g).

7] While challenging this impugned order of the Trial Court,

the submission of the learned counsel for the Petitioners is that

without there being any material before the Trial Court, the Trial

Court has enhanced the amount of royalty and moreover without

there being any direction in the earlier order passed on 15 th December,

2014, the trial Court has also given the direction for execution of

Agreement of Agency. It is submitted that, if such direction was not

there in the original order passed on 15th December, 2014 while

appointing the Court Receiver, it can be given subsequently. Hence

according to learned counsel for the Petitioner, the impugned order

needs to be quashed and set-aside.

8] Per contra, learned counsel for the Respondent-Plaintiff

has challenged the maintainability of this Writ Petition itself by

relying upon the judgment of the Apex Court in the case of Radhey

Shyam & Anr. vs. Chhabi Nath & Ors, JT 2015 (3) SC 140 , holding

that, the judicial orders of Civil Court are not amenable to writ

jurisdiction under Article 226 of the Constitution of India.

9]                Further relying upon the judgment of the Apex Court in



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the case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar

Patil, (2010) 8 SCC 329, it is urged that the scope of writ jurisdiction

of the High Court under Article 227 of the Constitution of India is

limited and in exercise of the said power, the High Court cannot act as

a Court of Appeal over the orders of the Civil Court or Tribunal,

subordinate to it.

10] Further according to learned counsel for the Respondents,

the Petitioners have already accepted the order of the Trial Court and

has sought time before the Court Receiver and also before the Trial

Court itself for compliance of the said order, like payment of the dues

of royalty and for execution of necessary Agreement of Agency. Thus,

according to learned counsel for the Respondents, when the

Petitioners have already accepted the said order, there is no scope for

the Petitioners to challenge the same in this writ jurisdiction.

11] In view of the settled position of law, as this Writ Petition

under Article 226 of the Constitution of India is not maintainable and

the writ jurisdiction of this Court under Article 227 of the Constitution

of India is limited only to ascertaining the legality and validity of the

impugned order passed by the Trial Court, within the limited

jurisdiction, if this Court considers the controversy involved in this

Writ Petition, it can be seen that the Petitioners had not challenged the

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earlier order dated 15th December, 2014 passed by the Trial Court,

thereby appointing the Court Receiver under Order XL Rule 1 of Code

of Civil Procedure and therefore that order has become final.

12] Now once, the Court Receiver is appointed to take

possession of the suit flat and the possession of the Org.Petitioner/

Defendant is continued for and on behalf of the Court Receiver, then it

follows that the Defendants had to execute an Agreement of Agency

with the Court Receiver. It is a consequential step for effective

implementation of the order of appointment of Court Receiver to take

possession of the suit flat and for continuing the possession of the

Defendant over the suit flat on his behalf. Therefore, there is no error

in the Trial Court's passing an order to that effect.

13] Even as regards the enhancement of the amount of royalty,

the impugned order passed by the Trial Court shows that the Trial

Court has considered the Leave and License Agreements executed

between the adjacent flat owners, which showed that the royalty

amount fixed by the earlier order dated 15 th December, 2014 was on

lower side. After arriving at this conclusion, the Trial Court has

enhanced the amount of royalty and that too in a reasonable way by

increasing it from Rs.10,000/- to Rs.25,000/- per month from 15 th

January, 2015 upto 31st March, 2015 and further directing the

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Petitioners to pay to the Plaintiff an amount of Rs.9,000/- which was

paid to the Court Receiver for taking custody of the premises and

further directing the Petitioners to deposit Rs.2400/- per year starting

from completion of one year from the date of taking possession of the

suit premises with the Court Receiver as per High Court (Original Side

Rules).

14] Thus, the perusal of the order passed by the Trial Court

reveals that the reliefs granted are consequential reliefs in view of the

initial order dated 15th December, 2014 passed by the Trial Court for

appointment of the Court Receiver and directing the Petitioners to pay

royalty amount of Rs.10,000/- per month. Therefore, within the

limited writ jurisdiction of this Court under Article 227 of the

Constitution of India, this Court does not find any ground made out to

interfere in the impugned order, especially when the Petitioners have

already accepted the said order by seeking time from the Trial Court

and the Court Receiver for execution of Agreement of Agency and for

depositing of the amount.

15] Writ Petition therefore holds no merit, hence stands

dismissed. Rule discharged.

[DR.SHALINI PHANSALKAR-JOSHI, J.]