Bombay High Court
Shashikant Atmaram Mali vs Angath Properties Llp And 14 Ors on 6 June, 2022
Bench: R. I. Chagla
Digitally signed
JITENDRA by JITENDRA
SHANKAR
SHANKAR NIJASURE
NIJASURE Date: 2022.06.07
18:27:23 +0530
6-ial-4142-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.4142 OF 2022
IN
SUIT (L) NO.4138 OF 2022
Mr. Shashikant Atmaram Mali and Anr. ...Applicants/
Plaintiffs
Versus
Angath Properties LLP and Ors. ...Defendants
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Abhijeet Rane for the Applicants / Plaintiffs.
Mr. Ashish Kamat i/b. Mr. Karan Vaity for Defendant No.1.
Mr. Pravin Samdani, Senior Advocate with Mr. Shashikant Surana i/b.
Madhur Surana for Defendant No.2.
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CORAM : R.I. CHAGLA J.
DATE : 6TH JUNE, 2022.
ORDER :
1. Heard learned Counsel for the Applicant / Plaintiff.
2. By this Interim Application the Applicant is seeking by way of
ad-interim order an injunction restraining the Defendants from in any
manner alienating, encumbering, selling, transferring and / or creating any
third party right, title or interest in respect of the suit property or any part
thereof or entering into any agreement / arrangement and / or understanding
6-ial-4142-2022.doc
with any other person / entity for development of the suit property.
3. The learned Counsel for the Applicants has relied upon order /
judgment passed by the City Civil Court on 15th February, 2006, wherein
the City Civil Court had in paragraph 32 recorded that the Commissioner's
report dated 19th January, 1999 shows possession of Defendant No.12
therein who is the Plaintiff in the present Suit. Further, it is recorded that
the Plaintiff in the City Civil Suit who is Defendant No.2 in the present Suit
has admitted that Defendant No.12 therein was in possession of the Suit
premises. He has further relied upon various complaints to Police Stations
against the Defendant No.2 - Society in that they were carrying on fencing
work in the suit premises in breach of the said order / judgment of the City
Civil Court. The Suit filed by the Plaintiff therein who is Defendant No.2 in
the present Suit had been dismissed by the said order / judgment. He has
also made reference to the Applicant's Advocates legal notice dated 28th
December, 2021 addressed, to Defendant No.1 in which the order /
judgment dated 15th February, 2006 of the City Civil Court had been
referred to and the Defendant No.1 was called upon to immediately stop
any further construction work in the Suit property and hand over immediate
possession to the Applicants. He has submitted that inspite of the legal
notice, the construction work is being continued by the Defendant No.1 /
Developer on the suit property. Accordingly, ad-interim relief has been
6-ial-4142-2022.doc
sought by way of present Interim Application.
4. Mr. Samdani, learned Senior Counsel for Defendant No.2 has
vehemently opposed any ad-interim relief being granted. He has submitted
that admittedly in paragraph 12 of the Plaint the Plaintiff has stated that he
was dispossessed from the Suit property on 5th April, 2019 and the only
explanation for filing the Suit in February, 2022 is that the Plaintiff had
started collecting various documents and papers from various authorities as
well as from his files. The Plaintiff has stated that in view of lockdown in
2020 and the demise of the Plaintiff's wife due to Covid and the Plaintiff's
family being in shock and trauma the Plaintiff could not start immediate
legal proceedings. He has submitted that infact the Plaintiff is nothing but a
lessee in respect of the another property in respect of which they were held
to be in possession by the City Civil Court by its order / judgment dated
15th February, 2006. He has submitted that the Defendant No.2 has entered
into agreement with Defendant No.1 for development of the Suit property
way back in the year December, 2020. Other buildings have already been
constructed on the Suit property. He has submitted that there is no urgency
made out for grant of any ad-interim relief considering that the present Suit
has been filed nearly three years from the alleged dispossession which was
on 5th April, 2019.
6-ial-4142-2022.doc
5. Having considered the submission, in my view, no ad-interim
relief can be granted, particularly considering that the Suit has been filed
only in February, 2022 and that to nearly three years from the dispossession
of the Plaintiff from the suit property which was on 5th April, 2019. The
case of the Defendant No.2 being that there are other buildings which have
already been constructed on the suit property over the years and that the
agreement with Defendant No.1 which was for further development on the
Suit property which was executed in December, 2020. Further, the City
Civil Court had passed the judgment way back on 15th February, 2006,
reliance of which have been placed on by the Applicants to contend that
they were in possession of the Suit premises. This would have to be
considered in light of the other documents on record as well as taking into
consideration the case of Defendant No.2 that they have been developing
the Suit property over several years.
6. Merely, the Applicants addressing a legal notice to Defendant
No.1 on 28th December, 2021 is not sufficient to show urgency in coming
to this Court and seeking ad-interim relief. In the legal notice it is stated
that the construction is being carried on by Defendant No.1 illegally
trespassing on the Suit property. It appears to be the case of the Plaintiff
that they are in possession of the suit property since the year 1995 and
which according to them is to the knowledge of the Defendants. The
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Plaintiff's case is that Defendant Nos.3 to 12 are the owners of the Suit
property against whom they are claiming adverse possession. All this will
have to be gone into at the hearing of the Interim Application.
7. The ad-interim relief applied for is rejected, particularly
considering the delay and laches in taking out the application.
8. The Interim Application shall be placed for hearing in due
course.
[R.I. CHAGLA J.]
