Bombay High Court
Sheikhah Fadiah Saad Al-Abdullah ... vs Sanjay Mishrimal Punamiya And 2 ... on 18 November, 2022
Bench: B.P. Colabawalla
nms 313-14 ORDER.docx
Digitally signed
by LAXMI
LAXMI SUBHASH
SONTAKKE
SUBHASH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date:
SONTAKKE 2022.11.18
12:34:20
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 313 OF 2014
IN
SUIT NO. 175 OF 2014
Sheikhah Fadiah Saad Al-Abdullah Al-Sabah
Through Constituted Attorney
Mr. Firas El-Kurdi
Having her address at Arabian Gulf Street,
Shaab Palace, P. O. Box -841,
Hawalli-32009, Kuwait ..Applicant/Org. Plaintiff
Vs.
1. Sanjay Mishrimal Punamiya
of Mumbai Indian Inhabitant
residing at 1st Floor, Flat No.2, Al-Sabah Court,
73/105, Marine Drive, Mumbai 400 020
2. Amish Amir Shaikh
Presently residing at Room next to Flat No.1,
Ground Floor, Al-Sabah Court, 73,
Marine Drive, Mumbai 400020
3. Mahesh Rupnarayan Soni
Having his business at Shop No. 3, Golden Nest,
Phase-8, Mira-Bhayandar Road, Thane 401107 ..Defendants
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Mr. Haresh Jagtiani, Senior Counsel a/w Yashpal Jain, Suprabh Jain, Bhumika
Chulani & Jahnavi Vora i/b. Yashpal Jain, for the Applicant.
Dr. Birendra Saraf, Senior Counsel a/w Abhay Jadeja, Jay Zaveri & Apurva Thipsey
i/b. Crawford Bayley & Co. for Defendant No.1.
Mr. Cyrus Ardeshir a/w L. C. Tolat for Defendant No.2.
Mr. Firoz Bharucha a/w Heenal Desai i/b. The Law Point for Defendant No.3.
CORAM:- B. P. COLABAWALLA,J.
Reserved on :- August 30, 2022.
Pronounced on :- November 18, 2022
JUDGEMENT:
1. The above Notice of Motion was heard by me extensively
after which arguments were concluded on 30th August 2022 and
judgment was reserved. The respective contesting parties were also
directed to file their brief written submissions within a period of three
weeks from 30th August 2022. Accordingly, the Plaintiff filed her written
submissions on 20th September 2022; Defendant No.1 filed his written
submissions on 6th October 2022; Defendant No.2 filed his written
submissions on 11th October 2022; and Defendant No. 3 filed his written
submissions on 10th October 2022, respectively. After considering their
written submissions as well as their oral arguments, I have pronounced
the judgment today.
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2. The above Suit is filed by the Plaintiff to declare that the
Defendants or any of them are trespassers and have no right of any nature
whatsoever in the premises being (i) Flat No. 21 admeasuring
approximately 7000 sq.ft, situated on the 5th Floor (for short "Flat
No.21"); (ii) the office/room on the ground floor admeasuring
approximately 270 sq.ft. next to Flat No.1 (for short "the Ground Floor
Premises"); (iii) the room on the 6th floor admeasuring approximately
300 sq.ft. [adjacent to the terrace] (for short "the Sixth Floor
Premises"); and (iv) a parking garage on the ground floor admeasuring
approximately 225 sq ft. (for short "the Parking Garage"); of the
building called "Al-Sabah Court" situated at 73/105, Marine Drive,
Mumbai-400 020. A further declaration is sought that (i) the Tenancy
Agreement dated 30th October 2012 entered into with Defendant No.1
and the rent receipt dated 30th October 2012 (with reference to Flat
No.21); and (ii) two further Tenancy Agreements, both dated 31st January
2013 (with reference to the Ground Floor Premises and the Sixth Floor
Premises), entered into with Defendant Nos. 2 and 3 respectively, are
forged and fabricated and do not bind the Plaintiff. The other
consequential relief sought in the Plaint is that the Defendants jointly and
severally be ordered to hand over quiet, vacant, and peaceful possession
of Flat No. 21; the Ground Floor Premises; the Sixth Floor Premises; and
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the Parking Garage; to the Plaintiff, or her Assignees/Constituted
Attorney.
3. In the above Suit, the Plaintiff has filed the above Notice of
Motion seeking the relief of the appointment of a Court Receiver under
Order XL Rule 1 of the Civil Procedure Code, 1908 (for short the "CPC"),
the appointment of a Commissioner under Order XXVI of the CPC and a
temporary injunction. A relief is also sought that the Defendants jointly
and severally be ordered to pay to the Plaintiff mesne profits in the
amount of Rs. 35,00,000/- per month for unlawful occupation of the
premises described hereinabove.
4. In this Notice of Motion, an ad-interim order dated 7th May
2014 was passed whereby, pending the hearing and final disposal of this
Notice of Motion, the Defendants were directed not to sell, alienate,
transfer, encumber and/or create any third-party rights in Flat No. 21;
the Ground Floor Premises; and the Sixth Floor Premises in the building
called "Al-Sabah Court". I have now heard the Notice of Motion finally.
THE PLEADED CASE OF THE PLAINTIFF:
5. To understand the controversy between the parties and the
reliefs claimed, one has to examine the case with which the Plaintiff has
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approached this Court. The Plaintiff is the elder daughter of the late His
Highness Sheikh Saad Al-Abdullah Al-Salem Al-Sabah (for short
"Sheikh Saad"), who was the Prime Minister of Kuwait and then went
on to become the Ultimate Head of the State of Kuwait, which position is
honoured as the "Emir" of the State of Kuwait. The said late Sheikh Saad
expired on 13th May 2008. After the demise of Sheikh Saad, the Plaintiff,
her mother, and her siblings have obtained heirship/succession
certificates in respect of the estate of the late Sheikh Saad. The Plaintiff
along with her mother and her siblings are now the Royal Family of
Kuwait and she holds a valid power/authority from the legal heirs to
manage the affairs in respect of the estate of the deceased Sheikh Saad as
well as for initiating various proceedings to protect his estate.
6. In the plaint it is pleaded that Defendant No.1 (Mr. Sanjay
Mishrimal Punamiya) is a tenant in respect of Flat No.3 on the 1st floor of
the building Al-Sabah Court and has forcefully and illegally taken
possession of Flat No. 21 [on the 5th Floor], admeasuring approximately
7000 sq.ft. alongwith the Parking Garage. It is further pleaded that
Defendant No.2, in connivance with Defendant No.1, has illegally and
forcibly taken possession of the Ground Floor Premises [admeasuring
approximately 270 sq.ft.] and Defendant No.3, in connivance with
Defendant No.1, has illegally and forcibly taken possession of the Sixth
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Floor Premises [admeasuring approximately 300 sq.ft]. All these
premises together are referred to as "the suit premises" in the Plaint
and more particularly described in Exhibit-A thereto.
7. The facts as pleaded in the Plaint reveal that the building Al-
Sabah Court is owned by the Ruler/Royal Family of Kuwait and some
units/flats in the said building are tenanted and the Royal Family of
Kuwait is the landlord of these units/flats. The said building was taken
on a long-term lease in the year 1955 by the late Emir of Kuwait, namely,
Sheikh Abdullah Al-Salem Al-Sabah (for short "Sheikh
Abdullah"). The said Sheikh Abdullah expired on 24th November 1965.
Vide a Succession Certificate bearing No. 273 dated 1st May 1966, Sheikh
Saad got the Inheritance Certificate. After the demise of Sheikh Saad on
13th May 2008, the present heirs have got their succession certificate from
the State of Kuwait, Ministry of Justice Legal Authentication Inheritance
Division, vide Succession Certification No. 770/2008.
8. It is the case of the Plaintiff that during the lifetime of the
late Sheikh Saad, the building was taken care of by one Faisal Essa
Alyousuf Al-Essa (for short "Faisal Essa") and who was authorized
in that regard by the late Sheikh Saad. After the demise of Sheikh Saad,
his legal heirs including the Plaintiff, granted the necessary and specific
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authority to Faisal Essa to take care of their properties including the
building Al-Sabah Court. According to the Plaintiff this authority was
given to Faisal Essa because he lived most of his life in Mumbai, India
being the Counsel General of Kuwait. In the plaint it is stated that Faisal
Essa was honoured with the position of Dean of all the Foreign Counsels
Corps in Mumbai and in his capacity as a Kuwaiti Diplomat. The said
Faisal Essa always strived for high levels of exchange between India and
Kuwait. According to the Plaintiff, the building Al-Sabah Court holds a
historic sentimental value for the Royal Family of Kuwait. According to
the Plaintiff this entire building is occupied by tenants except for Flat
No.21; the Ground Floor Premises; the Sixth Floor Premises; and the
Parking Garage, which were owned, occupied, possessed, and fully
seized of by the late Sheikh Saad [through Faisal Essa] and after his
demise, by his legal heirs including the Plaintiff.
9. It is the Plaintiff's case that Flat No.21; the Ground Floor
Premises; the Sixth Floor Premises; and the Parking Garage, were in the
absolute use, occupation, possession, and supervision of the said Faisal
Essa who was the caretaker of the said building. According to the
Plaintiff, Faisal Essa lived in a flat in a building called "Al-Jabariya"
which is within walking distance from the building Al-Sabah Court. It is
stated in the plaint that Faisal Essa was collecting rent from the tenants
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of Al-Sabah Court and issuing rent receipts to them. Thereafter, in the
plaint it is stated that as late as in the last week of April 2013, the said
Faisal Essa had hosted guests in Flat No.21, who can vouch that
possession of the said flat was with Faisal Essa. According to the Plaintiff
this becomes significant because according to Defendant No.1, he became
the tenant of Flat No.21 in by virtue of a Tenancy Agreement dated 30th
October 2012 executed between himself and the said Faisal Essa.
10. Similarly, it is the Plaintiff's case that the Sixth Floor
Premises [adjacent to the terrace] belongs to the Royal Family and holds
all important documents and the records including official Government
documents. It is the further case of the Plaintiff that Faisal Essa occupied
the Ground Floor Premises where his personal important documents,
Government Documents and other documents pertaining to the title and
tenancies of the building Al-Sabah Court, receipt books of the past, and
blank receipt books, seals, signature stamps etc. were all in the said
Ground Floor Premises until he left India for Kuwait on 6th May 2013.
11. In the Plaint it is stated that Faisal Essa had a kidney
transplant in Mumbai at Breach Candy Hospital and was in the said
hospital from 18th January 2013 to 16th February 2013. It is also stated
that thereafter Faisal Essa was recuperating at his residence, until 6th
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May 2013, when he left India for Kuwait as he wanted to rest, having
undergone a major surgery. It is stated in the Plaint that a set of keys of
three premises which form the subject matter of the present Suit [namely,
Flat No.21; the Ground Floor Premises; and the Sixth Floor Premises]
were at all times entrusted to the staff members who have been described
in paragraph 10 of the plaint. It is also stated that since Defendant No.1
is a tenant in respect of Flat No.3 situated on the 1st floor of the building
Al-Sabah Court and considering that Mr. Faisal Essa used to visit the
said building on a regular basis, Defendant No.1 had developed a
friendship with the servants/staff of Faisal Essa who were living in the
servants quarters in the said building and who used to always be around
Faisal Essa when he visited the said building.
12. It is the specific case of the Plaintiff that when Faisal Essa
left India on 6th May 2013, the Defendants took illegal and forcible
possession of Flat No.21; the Ground Floor Premises; the Sixth Floor
Premises; and the Parking Garage, by winning over the servants/staff of
the Plaintiff by paying them substantial sums and bringing pressure upon
them to toe their line. It is the case of the Plaintiff that the Plaintiff's
servants/staff have given Defendant No.1 access to the office of the
Plaintiff with all the blank receipts and seals. It is in connivance with
these people that the Defendants have executed their unlawful conspiracy
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to illegally oust the Plaintiff from Flat No.21; the Ground Floor Premises;
and the Sixth Floor Premises.
13. According to the Plaintiff, this does not stop here. As a part
of this illegal scheme, the Defendants have created forged and fabricated
documents to create illegal tenancy rights over Flat No.21; the Ground
Floor Premises; and the Sixth Floor Premises as more particularly set out
in the Plaint. According to the Plaintiff, Defendant No.1 has forged and
fabricated the purported Tenancy Agreement dated 30th October 2012 in
respect of Flat No.21. Additionally, Defendant No.1, in collusion with
Defendant Nos.2 and 3, have similarly forged and fabricated two Tenancy
Agreements, both dated 31st January 2013, in respect of the Ground Floor
Premises and the Sixth Floor Premises respectively. It is important to
note that it is the specific case of the Plaintiff that the signatures of Faisal
Essa on all the three purported Tenancy Agreements are forged, and that
Faisal Essa has never executed any such Agreements on behalf of the
heirs of the late Emir of Kuwait.
14. That apart, and strictly without prejudice, it is stated in the
plaint that the late Emir of Kuwait (Sheikh Saad) expired on 13th May
2008 and therefore, no Tenancy Agreement could have been executed on
his behalf thereafter. According to the Plaintiff this only highlights the
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brazen illegality of the Defendants' scheme. In the plaint it is stated that
to legitimize the Defendants' illegal actions, on 12th February 2013,
Defendant No.1 filed a false and frivolous Complaint under Sections 406,
504, 506(II) of the Indian Penal Code, 1860 (for short the "IPC") read
with Sections 3 and 25 of the Arms Act, 1959 in the Court of Additional
Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai, against
Faisal Essa. In the said complaint, it was inter-alia stated that Defendant
No.1 is a tenant in respect of Flat No.21 and the said Faisal Essa had
executed a purported Tenancy Agreement dated 30th October 2012 and
issued purported rent receipts in favour of Defendant No.1 in respect of
the said Flat No. 21. It is averred in the Plaint that in the said complaint
[filed by Defendant No.1 against Faisal Essa], it was stated that after
Defendant No.1 started doing repairs in Flat No.21, Faisal Essa
threatened him with dire consequences by allegedly showing him a
revolver. The complaint however does not mention any specific date on
which the alleged criminal offence was committed. According to the
Plaintiff this important fact was specifically omitted because Defendant
No.1 was acquainted with Faisal Essa and was aware of his medical
condition and to commit to a date of the offence would run the risk of the
Plaintiff being able to demonstrate that Faisal Essa was in hospital on
that date. Be that as it may, according to the Plaintiff, Defendant No.1
pursued this false and frivolous complaint and got the learned Magistrate
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to issue an order dated 18th February 2013 under Section 156(3) of the
Code of Criminal Procedure, 1973 (for short the "CrPC"), thereby
sending the said complaint for investigation to the Marine Drive Police
Station. It is the case of the Plaintiff, that neither the Plaintiff nor Faisal
Essa were aware of any such complaint/proceedings when Faisal Essa
left for Kuwait on 6th May 2013.
15. It is the specific case of the Plaintiff that only after Faisal
Essa left for Kuwait, the Defendants, in connivance with the servants of
the Plaintiff, took forcible and illegal possession of Flat No.21; the
Ground Floor Premises; and the Sixth Floor Premises. It is when some of
the tenants of the building informed Faisal Essa of the same, who in turn
informed the Plaintiff, that the Plaintiff learnt that the Defendants had
illegally and forcibly taken possession of the premises in question. On the
Plaintiff making further inquiries, the Plaintiff was shocked to learn that
the Defendants have filed the aforesaid false and frivolous complaint
against Faisal Essa with the apparent purpose to deter him from
returning to India.
16. According to the Plaintiff, on a careful consideration of the
forged and fabricated Tenancy Agreement dated 30th October 2012
(entered into with Defendant No.1), the following points are worth
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noting, which clearly shows that the said Agreement is forged and
fabricated:
(i) That the purported Tenancy Agreement was
executed by Faisal Essa as a Constituted Attorney of the
late Sheikh Saad. However, as on the date of the purported
Tenancy Agreement, Sheikh Saad had already expired and
consequently the Power of Attorney issued by Sheikh Saad
in favour of Faisal Essa had also ceased to be valid. A copy
of the Power of Attorney of Sheikh Saad in favour of Faisal
Essa is also not annexed to the purported Tenancy
Agreement.
(ii) The purported Tenancy Agreement dated 30th October
2012 is neither registered nor notarized and that the
signature of Faisal Essa is forged and fabricated and does
not even closely resemble the actual signature of Faisal
Essa as can be seem from the stamp of the signature of
Faisal Essa. This is, inter alia, established by a report of a
handwriting expert dated 4th September 2013.
(iii) The purported Tenancy Agreement of 30th October
2012, at Clause 7, refers to the 'Landlord' confirming
having received from the 'New Tenant' a sum of
Rs.50,000/- by cheque as a deposit for payment of
monthly standard rent for the tenanted premises. Clause 7
refers to an alleged acknowledgment by the 'Landlord' of
the receipt thereof. Along with the purported Tenancy
Agreement annexed is the receipt of the said sum of Rs.
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50,000/- by cheque No. 385341 drawn on Bombay
Mercantile Bank on account of payment of deposit for
standard rent, purportedly on the same day the first rent
receipt came to be issued in favour of Defendant No.1. This
rent receipt is for the period October 2012 to December
2012 for the same amount of Rs. 50,000/-. However, the
cheque number referred to is different from the cheque
number mentioned in the purported Tenancy Agreement.
The cheque number in the purported Rent Receipt is
387345. This is yet another indication of the fraudulent
nature of the purported Tenancy Agreement.
(iv) There is no amount of monthly rent mentioned in the
purported forged Tenancy Agreement and that there is
merely a mention that the tenant would pay standard rent
to the landlord, which is never the case in any Tenancy
Agreement.
(v) The purported Tenancy Agreement is merely copied
from the Tenancy Agreement of Defendant No.1 for Flat
No.3 on the 1st Floor where he is already a tenant, which
fact can be verified by reading the purported forged
Tenancy Agreement wherein the reference to tenant is
always used as "new tenant" which was the case in the
Tenancy Agreement for flat No.3 wherein the Defendant
No.1 is a tenant. In that case there was a change in tenancy
and there was an outgoing tenant and Defendant No.1 was
coming in as a new tenant and therefore the Defendant was
described by the word "new tenant" in the said Agreement.
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He has mistakenly retained the same in the purported
forged Tenancy Agreement dated 30th October 2012 as
well.
17. It is also the case of the Plaintiff that Defendant No.1 has
forged not only the Tenancy Agreement dated 30th October 2012 but also
forged and fabricated the rent receipt which is annexed to RAN
Application No.47 of 2012 filed by him before the Small Causes Court at
Mumbai. According to the Plaintiff, this can be verified from the rent
receipts which are already issued to other tenants of the said building, a
copy of one which is also annexed to the Plaint. Thereafter, it is also stated
that on the strength of the forged and fabricated Tenancy Agreement and
rent receipt, Defendant No.1 also, on 12th December 2012, filed RAN
Application No. 47 of 2012 in the Court of Small Causes at Mumbai for
fixation of Standard Rent. On learning about this, the Plaintiff on 25th
June 2013, through her Advocates, applied for a certified copy of the RAN
Application. On perusing a copy of this Application, the Plaintiff learnt
that the said Application is fraudulently filed against the Sheikh
Abdullah, the grandfather of the Plaintiff [who expired in 1965] and Mr.
Faisal Essa. In the said RAN Application, before the service of the writ of
summons on Sheikh Abdullah or Faisal Essa [the Defendants therein],
Defendant No.1 herein [the Applicant in the RAN Application] obtained
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an ex-parte order dated 22nd December 2012, whereby the Small Causes
Court directed Defendant No.1 herein to deposit a lump sum amount of
rent for a further period of three months from January, 2013 to March,
2013 and similarly in the same manner for further next quarterly period,
on or before 30th January, 2013. The said order allowed Sheikh Abdullah
and Faisal Essa to withdraw the amount deposited and they were
directed not to interfere with the possession of Flat No. 21 which was in
possession/occupation of Defendant No.1 herein. Thereafter, it is also
stated in the Plaint that the Plaintiff subsequently learnt that Defendant
No.1 herein also filed RAD Suit No. 174 of 2013 in the Small Causes Court
at Mumbai on 22nd January 2013. The Plaintiff, for the first time got
knowledge of the said suit from the Affidavit in reply filed by Defendant
No.1 in Criminal Writ Petition No. 2662 of 2013 filed by Mr. Faisal Essa.
18. To put it in a nutshell, it is the case of the Plaintiff, that the
aforesaid RAN Application as well as the RAD Suit were filed by
Defendant No.1 only to somehow legitimize the action that Defendant
No.1 proposed to take in the future to illegally dispossess the Plaintiff
from Flat No. 21 and somehow justify and/or legitimize his possession of
the said flat. It is the case of the Plaintiff that the same was also done by
Defendant Nos. 2 and 3 by filing their independent RAD suits in the Small
Causes Court sometime in April 2013. It is on the basis of these pleadings
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that the Plaintiff seeks a declaration that the Defendants are trespassers
on the premises in their possession/ occupation and for a declaration that
the Tenancy Agreements relied upon by them are forged and fabricated
and not binding on the Plaintiff. Consequently, a direction is sought
against the Defendants to hand over the premises in their respective
occupation and possession, to the Plaintiff and/or her
Assignees/Constituted Attorney. In aid of this final relief, the above
Notice of Motion is filed seeking the appointment of a Court Receiver,
injunction and for a direction to the Defendants to pay mesne profits to
the Plaintiff.
SUBMISSIONS OF THE PLAINTIFF:
19. In this factual backdrop, Mr. Jagtiani, the learned Senior
Counsel appearing on behalf of the plaintiff, submitted that despite it
being contended by the Defendants that they were persuaded to enter
into their respective Tenancy Agreements with Faisal Essa [acting as the
Constituted Attorney of Sheikh Abdullah], they have failed to produce the
Power of Attorney from Sheikh Abdullah to Faisal Essa because
obviously no such document exists. This apart, there is no evidence
whatsoever (apart from their bare words) that Faisal Essa held himself
out to be the representative of Sheikh Abdullah who authorized him to
enter into the aforesaid Tenancy Agreements. Mr. Jagtiani submitted that
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the case of the Plaintiff is confined to the Tenancy Agreements entered
into in the year 2012-2013 in respect of Flat No.21; the Ground Floor
Premises; and the Sixth Floor Premises with a dead person, namely,
Sheikh Abdullah, and hence the circumstances that attach to the creation
of the tenancies in the year 2008 of the other flats in the building Al-
Sabah Court by Faisal Essa representing Sheikh Saad, can have no
bearing or relevance to the present case. According to Mr. Jagtiani, if
these three basic features are borne in mind, every single defence must
necessarily crumble. Mr. Jagtiani submitted that Sheikh Abdullah's death
in November 1965 is established beyond any controversy and this fact
alone completely destroys any defence that the Defendants have put
forward because according to the Defendants each one of them claims to
have met Sheikh Abdullah in the year 2012-2013 i.e. 47-48 years after his
death. According to Mr. Jagtiani, all the Defendants have committed
themselves having met Sheikh Abdullah and Faisal Essa for entering into
the Tenancy Agreements and being put in possession of their respective
premises. Mr. Jagtiani submitted that this stand remains unaltered even
as on today. This stand is taken by the Defendants in the RAD Suit filed
by Defendant No.1 and which suit subsequently reiterates that Sheikh
Abdullah put Defendant No.1 in possession of Flat No.21. According to
Mr. Jagtiani, the Defendants and particularly Defendant No.1, have
constantly modified their defence after their lies have been exposed by
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cogent evidence brought on record by the Plaintiff and which improvised
defence is not only contrary and inconsistent with their previous stand
but is also self-destructive. After the filing of the present plaint, when it
was revealed that Sheikh Abdullah had died in November 1965, and that
Faisal Essa could never have held himself out to be the Constituted
Attorney of Sheikh Abdullah in the year 2012, Defendant No.1 was driven
to reinvent his defence. In the criminal defamation Complaint, (which
was brought on record by the Plaintiff during the course of the
arguments) Defendant No.1 says that Faisal Essa assured that he was in
fact the Constituted Attorney of Sheikh Abdullah who had issued him a
Power of Attorney in the year 1961 coupled with interest because Sheikh
Abdullah owed Faisal Essa Rs. 2,00,000/- which debt remained un-
discharged till Sheikh Abdullah's death. Thus, a new concocted defence
was meted out. Mr. Jagtiani submitted that the Defendants' case is that
Faisal Essa held himself out to be the Representative of Sheikh Abdullah
or that he was authorized to represent the Emir of Kuwait, and therefore,
was the Landlord for the purpose of creating tenancies. This defence is
demonstrably false. Mr. Jagtiani submitted that in support of this stand,
Defendant No.1 relies upon the Tenancy Agreements entered into by
Faisal Essa in the year 2008-2010 with Defendant No.1 and two others
in respect of flats other than the flats which are the subject matter of the
present suit. According to Mr. Jagtiani, reliance placed on the Tenancy
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Agreement entered into in the year 2008 with Defendant No.1 militates
against the very case canvassed by the Defendants that Faisal Essa held
himself out to be Sheikh Abdullah's representative. Defendant No.1 has
categorically asserted that Faisal Essa acted as the Constituted Attorney
of Sheikh Saad. Sheikh Saad is not Sheikh Abdullah, a fact over which
there is no confusion in the minds of the Defendants, nor even remotely
pleaded or suggested by them. The failure on the part of the Defendants
to establish this defence must necessarily be fatal to their pleaded case.
Significantly, the said Criminal Defamation Complaint (referred to
above) categorically identifies Sheikh Abdullah as the principal and
Faisal Essa as his Constituted Attorney. This stand has to be contrasted
with Defendant No.1's subsequent averments that Faisal Essa acted as
the Constituted Attorney of either Sheikh Saad or the Emir of Kuwait or
that he was authorized to hold himself out as the Landlord of Al-Sabah
Court. The stark contrast in these two versions completely demolishes
Defendant No.1's defence that Faisal Essa held himself out to be a person
entitled to create the Tenancy Agreements with the Defendants
independently of being the Constituted Attorney of Sheikh Abdullah.
20. Mr. Jagtiani submitted that the so-called genuineness of the
Tenancy Agreements cannot be divorced or abstracted from the host of
suspicious circumstances surrounding them. He submitted that the fact
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that the Tenancy Agreements are a patent forgery, is compellingly
established by the totality of the circumstances attending the Tenancy
Agreements including the manner in which they were executed. The so-
called genuineness or otherwise of the said Tenancy Agreements ought
not to be examined by treating them as stand-alone documents, divorced,
as it were, from the backdrop and manner in which they were created and
devised. He submitted that since the decrees obtained by the Defendants
from the Small Causes Court at Mumbai being a nullity, as they were
obtained against the dead person, must necessarily attach to the Tenancy
Agreements as well which are also entered into with the same dead
person. Moreover, unlike the previous Tenancy Agreements executed by
Faisal Essa, the following infirmities in the Tenancy Agreement dated
30th October 2012 [purportedly entered into with Defendant No.1 in
relation to Flat No.21] are worth noting which conclude that the said
Tenancy Agreement is a forged and fabricated document:
(a) The Tenancy Agreement dated 30th October 2012 was
executed by Faisal Essa as the Constituted Attorney of
Sheikh Abdullah when he had already expired as far
back as in November 1965;
(b) Unlike the previous Agreements of 2008, the said
Tenancy Agreement dated 30th October 2012 was never
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registered;
(c) That the signature of Faisal Essa is forged and
fabricated;
(d) Unlike the previous Agreements of 2008, no amount
for monthly rent is mentioned in the 2012 Agreement;
(e) Although the rent with respect to the Tenancy
Agreement of Defendant No.1 is shown to have been
received on 19th September 2012/20th September 2012,
no rent receipt for the alleged quarterly rent is annexed
to the said Tenancy Agreement nor does the Tenancy
Agreement refer to the cheque details for the payment
of the said quarterly rent;
(f) Even the receipt for the deposit amount shows payment
received on 30th October 2012, whereas the bank
statement produced by Defendant No.1 shows payment
received on 20th September 2012.
21. Mr. Jagtiani submitted that this apart, there are serious legal
infirmities in the various judicial proceedings resorted to by the
Defendants resulting in patently illegal judicial orders, processes and
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other documents being obtained to justify their occupation of Flat No.21;
the Ground Floor Premises; and the Sixth Floor Premises. This must
necessarily establish that the Tenancy Agreements purportedly entered
into with Defendant Nos.1, 2 & 3 are forged. The orders passed in the RAN
Application, the decrees obtained in the RAD suits, the panchanamas
drawn up by the Police, the bailiff's report, and the process issued by the
Magistrate under Section 156(3) of the Cr.P.C. on a false complaint filed
by Defendant No.1 are demonstrably illegal and replete with infirmities.
According to Mr. Jagtiani, the infirmities are as under:
Illegalities/Infirmities in the RAN Order:
(i) An ex-parte Order of injunction is passed in the RAN
Application. An application for fixation of standard rent under
Section 8 has no provision to authorize the judge sitting in that
jurisdiction to pass an order of injunction protecting the interest
of the Applicant against the lessor. Such an order in an RAN
Application is unheard of.
(ii) The Defendants have misrepresented to this Court by stating
that the Order in the RAN Application has been decreed in their
favour. However, the Plaintiff has tendered a copy of the last
Order dated 21st September 2013, checked online, which states
that the RAN Application stands dismissed for want of
prosecution.
The Judge failed to notice or deliberately ignored the
following illegalities/infirmities in the RAD suit:
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(i) Document/Tenancy Agreement is not registered;
(ii) Tenancy Agreement does not mention monthly rent;
(iii) RAD suit mentions consideration which is not mentioned
in the Tenancy Agreement;
(iv) The Ld. Judge could not have passed an order without the
POA being produced since the Tenancy Agreement is signed by
the Constituted Attorney;
(v) Tenancy Agreement annexes the rent receipt of Sheikh Saad
whereas the agreement is entered into with Sheikh Abdullah;
(vi) The original Tenancy Agreement cannot be in the custody
of the tenant;
(vii) Most importantly, in the case of Defendant No.2 and
Defendant No.3, a decree is passed before the statutory period
of 30 days [to enable the Defendant to file his written statement]
has elapsed.
Illegalities/Infirmities in the Bailiff's Report:
(i) Faisal Essa's address as shown by all the Defendants in the
title to the RAD suits is an unidentified office premises on the
6th floor;
(ii) The address of Sheikh Abdullah/Faisal Essa in the cause
title of the RAD suits filed by all the three Defendants is a
premises occupied by Defendant No.3 as per his Tenancy
Agreement since 1st August 2012. The said premises, if in
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possession of Defendant No.3, cannot be shown as Sheikh
Abdullah's/Faisal Essa's address. This factor thus proves that
the Bailiff never served Faisal Essa and his report is thus faulty.
Moreover, Defendant No.1 knowing the correspondence
address of Faisal Essa, i.e. Vaid Building, the Defendants have
dishonestly chosen to show the Sixth floor premises for the
service of the summons.
(iii) The 1st service report with respect to the service of
Defendant No.1's RAD suit states that Faisal Essa is no more
available on the 6th floor and thus serves the summons and the
suit on the ground floor. However, the same bailiff shows
service of summons in Defendant No.2 and Defendant No.3's
RAD suits on 8th April, 2013 on the 6th floor.
(iv) Contrary to the stand of the bailiff in his report about the
service of summons in case of Defendant No.2 and Defendant
No.3's RAD suit on the 6th floor, Defendant No.2 on oath states
that Defendant No.1 and Defendant No.3 were served on the
ground floor premises;
(v) The Bailiff fails to identify Faisal Essa except by describing
him as an old man which by any standard cannot establish the
identity of the person upon whom the service is effected;
(vi) Ordinarily the plaintiff should accompany the bailiff to
identify the person on whom the service is being effected which
has not been done in the present case;
(vii) Defendant No.1 and Defendant No.2 have in their
Affidavits in Reply dated June, 2022 identified premises on the
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6th floor and the ground floor respectively, with distinct
numbers as office Nos. 601 and 602 on the 6th floor and two
rooms on the ground floor, one being room Nos. 1 and 2 and
the other being room Nos. 3 and 4. However, the properties are
not identified in the plaint and therefore the bailiff report, not
identifying the property with specific numbers is defective.
(viii) The subsequent attempt of Defendant No.1 and
Defendant No.2 to identify the premises after 8 years of filing
of the suit by inventing a plan/map of the 6th floor of Al-Sabah
Court is of no avail to the Defendants.
(ix) On the contrary, if the premises were identified by
numbers, then there was no reason for the Defendants to not
mention the same in the cause title of their RAD suits.
(x) Moreover, Defendant No.1 states in the June 2022 Affidavit
that the premises on the 6th floor is an office premises, whereas
Defendant No.3 claims to have acquired the said premises on
the 6th floor as a residential premises for the purpose of
residence. None of this is observed/ noticed by the Bailiff in his
report.
22. Mr. Jagtiani submitted that to substantiate the case of the
Defendants that the Tenancy Agreements are not forged and fabricated,
the Defendants have sought to rely upon the statements made to the
Police during the course of the investigation carried out by the CID in the
criminal complaint filed by Faisal Essa. Mr. Jagtiani submitted that
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under Section 162 of the Cr.P.C, it is impermissible to rely upon
statements made to the Police during the course of investigation,
especially without following the rigors of Section 145 of the Indian
Evidence Act, 1872. He submitted that even if such statements are looked
at, it would be unsafe to place any reliance on them on account of many
omissions and deficiencies by the police in such investigations. In this
regard, Mr. Jagtiani submitted that the statements made to the police are
not evidence unless the same have been proved through the discipline of
witness action by the process of examination, cross-examination and re-
examination of such witnesses on oath. Even if this Court does refer to
these statements and proceedings, then the same must be done with
immense circumspection for, otherwise, this Court would unwittingly be
exercising its criminal revisional jurisdiction which may not be
warranted. Even the statements made to the police can never be treated
as proof so as to override, supplement or even modify or embellish other
cogent evidence brought on record on oath through affidavits or obtained
by a judicial process.
23. Mr. Jagtiani submitted that despite this objection, even the
statements made before the police by the many of the tenants of Al-Sabah
Court clearly confirm that Flat No.21; the Ground Floor Premises; and
the Sixth Floor Premises were in the possession of Faisal Essa till 6th May
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2013. Mr. Jagtiani submitted that these statements also confirmed that
the tenants met Faisal Essa in Flat No.21; the Ground Floor Premises;
and the Sixth Floor Premises much after the Defendants claim to be in
possession thereof. Mr. Jagtiani submitted that the Defendants have
heavily relied upon the Final Investigation Report [the chargesheet] to
state that no offence of trespass or forgery coupled with criminal
conspiracy, was committed by them. Mr. Jagtiani submitted that at the
outset, this chargesheet/investigation report does not appear to have all
the statements of witnesses and thus no reliance can be placed on
selective statements forming part of the investigation report. Mr. Jagtiani
submitted that the Defendants have placed heavy reliance only on the
report of the handwriting expert, and the Investigation Officer, relying
upon the report of the handwriting expert, erred in concluding that Faisal
Essa had no uniformity in his signature. Mr. Jagtiani submitted that the
Investigation Officer, based on this report, makes out a case against
Faisal Essa that he signed the Tenancy Agreements deliberately in a
manner to give the impression that his signatures were forged so that he
could, if the need arises, deny his signature. This finding, which reads
Faisal Essa's intention, is unsubstantiated and perverse on all counts.
According to Mr. Jagtiani, the factors to be considered from the
handwriting expert's report is that the signature of Faisal Essa on the
Tenancy Agreements does not match with his original signature and this
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factor alone was sufficient for the Investigation Officer to charge the
Defendants for forgery of the Agreements instead of attempting to rope
in Faisal Essa by inventing unsubstantiated conclusions of Faisal Essa's
involvement in committing forgery. Mr. Jagtiani submitted that it was
after observing the above infirmities that the Magistrate was prima facie
convinced about the forgery, theft, criminal conspiracy and issued
process dated 6th April, 2015. Mr. Jagtiani submitted that the entirety of
the investigation by the CID and its conclusion is subsumed in the order
passed by the Magistrate issuing process against Faisal Essa and the
Defendants. In this order, the learned Magistrate finds that the material
indicates that a charge inter-alia of forgery, theft and conspiracy are
sustainable against the Defendants and prima facie finds that a case of
cheating under Section 420 of the IPC is made out against Faisal Essa
and liberty was granted to him to file a protest petition against issue of
process and investigation. Mr. Jagtiani submitted that therefore the Final
Investigation Report/chargesheet, read with order of the Magistrate, in
fact supports the case of the Plaintiff that the Defendants are guilty of
committing forgery, theft and conspiracy and in fact does not support the
case of the Defendants that the Tenancy Agreements are genuine.
24. Mr. Jagtiani then submitted that pivotal defence of the
Defendants in their submissions was that all that is stated in their
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affidavits has not been denied or dealt with by the Plaintiff by filing any
affidavit in rejoinder. On the other hand, the Defendants want this Court
to believe their case on the principle of non-traverse particularly because
Faisal Essa is not a party to the present suit and he being a dominant
feature in this litigation, ought to have filed his own Affidavit to refute the
defences jotted out by the Defendants. Mr. Jagtiani submitted that the
Plaintiff, in not joining Faisal Essa either as a co-plaintiff or as a
Defendant, suffers no disadvantage and the Plaintiff is in no way affected
by the absence of Faisal Essa as a party to the pleadings/proceedings.
But, in a manner of speaking, Faisal Essa's version as to what transpired
in the present case is brought on record by the Defendants by relying
upon Faisal Essa's pleadings and versions as expressed in his criminal
Writ Petition and his statement to the police. This for all intent and
purposes, as it were, would constitute a rejoinder to the affidavits of the
Defendants. In these documents, Faisal Essa's defence inter-alia can be
seen on the following issues, such as:
i. Faisal Essa denied execution of the Tenancy
Agreements and has further denied preparing and
giving rent receipts and having received any rent
amounts.
ii. Faisal Essa claimed to be in possession himself of
the premises [which form the subject matter of the
suit] up to 6th May 2013 and also denied receiving
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the writ of summons in the RAD suits filed by the
Defendants in the Small Causes Court at Mumbai.
25. If one takes all these factors into consideration, Mr. Jagtiani
submitted that the Defendants' case of non-traverse is a complete myth
and/or an overstatement and does not in any way establish any of the
false defences taken by the Defendants. The principle of non-traverse is
not absolute, was the submission of Mr. Jagtiani. Mr. Jagtiani submitted
that the Defendants, taking complete advantage of the absentee
Landlords, have perpetrated acts of forgery and trespass. Moreover, all
documents relied upon by the Defendants in support of their defence are
inherently dubious, self-destructive, and contradictory. According to Mr.
Jagtiani, the Plaintiff's burden of establishing a prima facie case has been
well and sufficiently satisfied. If the sheen of landlord-tenant relationship
[which the Defendants are seeking to set up to justify their illegal
occupation of the suit properties] is erased, then the fraud perpetrated by
the Defendants automatically unravels. Mr. Jagtiani therefore submitted
that the Plaintiff has made out a strong prima facie case and established
that the Defendants have illegally and forcibly and without the consent of
the Plaintiff Landlord trespassed into the premises forming the subject
matter of the above suit. In these circumstances, Mr. Jagtiani submitted
that this is a fit case where the Court Receiver ought to be appointed and
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the Plaintiff be put in possession of Flat No.21; the Ground Floor
Premises; and the Sixth Floor Premises as the agent of the Court Receiver
on such terms and conditions as this Court deems fit. Additionally, Mr
Jagtiani submitted that the Defendants also be directed to pay mesne
profits of Rs. 35 Lakhs per month to the Plaintiff. Mr Jagtiani submitted
that looking at the conduct of the Defendants and considering the equities
of the case, the ad-interim injunction granted by this Court on 7th May
2014 would not be adequate relief.
SUBMISSIONS OF DEFENDANT NO.1:
26. On the other hand, Dr. Saraf, the learned Senior Counsel
appearing on behalf of Defendant No.1, submitted that Defendant No.1 is
in possession and occupation of Flat No.21 in the building Al-Sabah
Court by virtue of a Tenancy Agreement dated 30th October 2012 entered
into by Faisal Essa (for and on behalf of Landlords) in favour of
Defendant No.1. This Tenancy Agreement has been challenged in the
above Suit as being forged and fabricated. It is on this basis that the above
Suit is filed, and reliefs sought seeking a declaration that the Defendants
are trespassers of the premises in their respective occupation and that the
Tenancy Agreement dated 30th October, 2012 (entered into with
Defendant No.1) and the other two Tenancy Agreements both dated 31st
January, 2013 (entered into with Defendant Nos. 2 and 3) are forged and
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fabricated and do not bind the Plaintiff. The Plaintiff also seeks a
cancellation of certain documents on the basis of which the Defendants
claim rights to occupy their respective premises. Dr. Saraf, submitted that
Defendant No.1 has filed several affidavits, namely, (i) an affidavit in
reply dated 25th July 2014; (ii) an additional affidavit dated 29th July
2015; (iii) an additional affidavit dated 19th August 2017; and (iv) an
affidavit dated 17th June 2022, to meet the case of the Plaintiff. He
submitted that to none of these affidavits has the Plaintiff chosen to file
any affidavit in rejoinder to controvert what is stated therein. Relying on
these affidavits, Dr. Saraf submitted that it is the 1st Defendant's case that
he had earlier entered into a Tenancy Agreement dated 24th October
2008 with Faisal Essa in respect of Flat No. 3 on the 1st Floor of the
building Al-Sabah Court. The said Agreement was executed by Faisal
Essa as the Landlord in which, it was asserted that Sheikh Saad was the
owner of the premises. The rent receipts issued by Faisal Essa pertaining
to these premises as well as the other rent receipts issued by Faisal Essa
in respect of other premises in Al-Sabah Court bear the signature and
stamp of Faisal Essa. This clearly indicates that Faisal Essa was the
Constituted Attorney of the late Sheikh Saad. In this regard, he brought
to my attention several rent receipts annexed to these affidavits as well as
to the Plaint and submitted that all these documents are evidently after
the death of Sheikh Saad and have not been disputed by the Plaintiff.
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27. Dr. Saraf then pointed out that even the brother of
Defendant No.1, Mr. Sandip Punamiya, entered into a Tenancy
Agreement dated 1st April 2009 in respect of Flat No. 20 on the 5th Floor
of the building Al-Sabah Court. This Tenancy Agreement is also similar
to the Tenancy Agreement entered into with Defendant No. 1 dated 24th
October 2008 in respect of Flat No.3, on the 1st Floor. Dr. Saraf submitted
that even this Agreement [dated 1st April 2009] was executed after the
death of Sheikh Saad by Faisal Essa and which has not been disputed by
the Plaintiff. Dr. Saraf pointed out that this does not stop here. Other
persons in the building Al-Sabah Court also acquired premises after the
death of Sheikh Saad under various Tenancy Agreements which were
executed by Faisal Essa on the basis that he is the Power of Attorney
Holder of Sheikh Saad, and the Plaintiff has not disputed any of the
aforesaid Tenancy Agreements. One such example is an Agreement dated
16th February 2010 executed between Faisal Essa and one Mr. Pradeep
Bhansal for Flat No. 13 on the 2nd Floor of the same building. Looking at
this conduct of Faisal Essa and the Plaintiff, Dr Saraf submitted that it is
clear that the Plaintiff allowed Faisal Essa to continue to create tenancies
in the building Al-Sabah Court even after the death of Sheikh Saad.
28. Dr. Saraf submitted that since Defendant No.1 required
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further premises, he discussed his need with Faisal Essa who pointed out
that Flat No.21 was lying locked for a number of years and could be given
on a tenancy basis. Faisal Essa therefore agreed to give to the 1st
Defendant, on a tenancy basis, Flat No.21 along with the Parking Garage
admeasuring 225 sq.ft. (approx). Defendant No.1 accordingly gave two
cheques bearing Nos. 387325 and 385341 both dated 19th September
2012 which were encashed by Faisal on 20th September 2012. After this,
the Tenancy Agreement was executed between Faisal Essa and
Defendant No.1 on 30th October 2012. Upon execution of the Tenancy
Agreement, the keys of Flat No. 21 were also handed over by Faisal Essa
to Defendant No.1. Dr Saraf submitted that it was the obligation of Faisal
Essa to register the said Tenancy Agreement, who kept avoiding and
postponing the same. Thereafter he unreasonably called upon Defendant
No.1 to vacate Flat No.21 which led to disputes between the parties.
29. Dr. Saraf submitted that it is the specific case of Defendant
No.1 that Faisal Essa stated that he would not accept rent in future and
demanded more monies from Defendant No.1 compelling him to file RAN
Application No.47 of 2012 seeking fixation of standard rent and
protection of his rights. In this RAN Application, an order dated 22nd
December 2012 was passed directing further monies payable towards
rent to be deposited in court and restraining Faisal Essa from disturbing
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the possession of Defendant No.1. He submitted that what is very
important to note is that in the RAN Application [filed by Defendant No.1
in December 2012], the Tenancy Agreement and the rent receipt [in
relation to Flat No.21] were annexed. Dr Saraf submitted that this fact
will have a significant bearing on the outcome of the present matter,
especially on the issue of alleged forgery of the rent receipt.
30. Dr. Saraf submitted that be that as it may, Defendant No.1
also filed RAD Suit No. 174 of 2013 for declaration of his tenancy rights.
Dr. Saraf submitted that the summons in the said Suit were duly served
on 20th February 2013, but Faisal Essa did not appear before the Small
Causes Court leading to an order being passed on 20th April 2013 to
proceed ex-parte. Apart from filing the RAD Suit, Defendant No.1 also
filed a Criminal Complaint in the Magistrate's Court regarding certain
threats given by Faisal Essa to Defendant No.1 and which led to an
issuance of an order under Section 156(3) of the Cr.P.C., on 18th February
2013. Based on this order, an FIR also came to be lodged on 4th March
2013. During the investigation, a panchnama was prepared on 24th March
2013 by the authorities which reflects that Defendant No.1 is in
possession of Flat No.21. Dr. Saraf submitted that this panchnama clearly
indicates that the Plaintiff has approached this Court with a false case
because it is the Plaintiff's case that Faisal Essa was in possession of Flat
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No.21 till 6th May 2013 (when he left for Kuwait), whereas the said
panchnama clearly indicates that Defendant No.1 was in possession of
Flat No.21 as far back as on 24th March 2013. Dr. Saraf submitted that
these proceedings were subsequently closed pursuant to orders of this
Court holding that the disputes essentially are the civil disputes. He
submitted that be that as it may, this panchnama therefore, clearly shows
that it was the 1st Defendant who was in possession of Flat No.21 long
before 6th May 2013.
31. Dr. Saraf then submitted that Faisal Essa himself initiated
criminal action against the Defendants and filed Criminal Writ Petition
No.2663 of 2013 seeking investigation by the CBI or the CID into the
matter of the properties of the Royal Family of Kuwait, register an FIR,
and submit a report. This Court (in the said writ petition) directed Faisal
Essa to approach the appropriate criminal court which would consider
his request for transfer of investigation to the CBI or the CID. On 15th
January 2014, Faisal Essa filed a criminal complaint against Defendant
No.1, in which an investigation was ordered. This investigation was
thereafter undertaken by the CID, which was apparently at the request of
Faisal Essa. The CID carried out a detailed investigation and found that
there was no case of either forgery or of criminal trespass. The CID found,
on taking a report from the State Agency, that the signature of Faisal Essa
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on the Tenancy Agreement was genuine. The CID, however, filed a
chargesheet both against Faisal Essa and Defendant No.1 alleging that
they had colluded together to cheat the owner. Defendant No.1 challenged
the chargesheet and as against him, further proceedings under the said
chargesheet were stayed by this Court vide its order dated 28th July 2015
passed in Criminal Application No 726 of 2015. Mr. Faisal Essa chose not
to challenge the chargesheet. Dr. Saraf submitted that it is of great
significance in the present matter, that the case pleaded by Defendant
No.1 in his various affidavits, has not been responded to at all by the
Plaintiff. Though, the Plaintiff had an opportunity to file a rejoinder to all
the various affidavits filed by Defendant No.1, they chose not to do so. Dr.
Saraf submitted that at the interim stage, where disputes are decided
primarily on the basis of pleadings, the absence of a pleading cannot be
substituted by oral arguments. Vital and relevant facts and contentions
as pleaded in the reply have gone untraversed and this aspect shall be
highlighted later. To put it in a nutshell, Dr. Saraf submitted that the
Plaintiff's case is essentially one regarding forgery and fabrication. All
aspects of forgery need to be meticulously pleaded to offer a fair
opportunity to the opposite party to meet the same. In the course of
arguments, it is not open to make allegations of fraud and fabrication
which have not been pleaded and which the Defendants did not get an
opportunity to meet.
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32. Dr. Saraf thereafter submitted that the Plaintiff is not
entitled to any equitable relief as she has approached this Court with a
completely false case. He submitted that the essence of the Plaintiff's case
is that Faisal Essa was in possession of Defendant No.1's premises till 6th
May 2013, and it is thereafter, that Defendant No.1 trespassed upon Flat
No.21 and took forcible possession thereof without the consent of Faisal
Essa/the Plaintiff. The identical case is also pleaded against Defendant
Nos.2 & 3 who are mere stooges of Defendant No.1. He submitted that it
is the case of the plaintiff, that all the Tenancy Agreements as also the
rent receipts are all forged and fabricated. Dr. Saraf submitted that these
issues are evidently false, and the Plaintiff has miserably failed to make
out a prima facie case in that regard. He submitted that the documents
and the records in fact clearly indicate that the case as pleaded in the
plaint is completely false and baseless. Dr. Saraf submitted that it is for
this very reason, that despite the fact that Faisal Essa was in the know of
things and was very much alive when the suit was filed, was not
impleaded as a party to the suit and neither is there any supporting
affidavit of Faisal Essa affirming whatever is stated in the plaint. Dr.
Saraf submitted that Faisal Essa was alive even when Defendant No.1
filed his 1st Affidavit in reply dated 25th July 2014 as well as the additional
Affidavit dated 29th July 2015 (Faisal Essa died in or about 14th March,
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2016). Despite the same, there is no rejoinder to the said affidavits, nor
any statement or affidavit of Faisal Essa is filed to controvert what has
been stated by Defendant No.1 with reference to the allegations of the
Plaintiff regarding the fabrication of the Tenancy Agreement and the rent
receipt issued to Defendant No.1. Dr. Saraf submitted that it is the case of
the Plaintiff that the Tenancy Agreements entered into with all the
Defendants as well as the rent receipts issued to them are forged and
fabricated. The basis on which these allegations are made in the Plaint,
are already set out earlier. The fact that the allegations as regards the
forgery of the Tenancy Agreements is false, is apparent from the
following:
(i) It is alleged that the signature on the said document is not of
Faisal Essa. In this regard, a report of a private handwriting
specialist is produced (at Exh. G, Pg. 93 of the Plaint). The
Plaint states that the handwriting specialist compared the
signature on the Tenancy Agreement with the "actual
signature of Mr. Faisal Essa Alyousuf Al-Essa as can be
seen from the stamp of the signature of Mr. Faisal". It
is pertinent to note that the handwriting specialist did not have
the original Tenancy Agreement, nor any original signature
specimen of Faisal Essa was provided to the handwriting
specialist. No effort was made by the Plaintiff or Faisal Essa to
give the handwriting specialist access to the original signature
specimen of Faisal Essa. The handwriting specialist prepared
the said report based upon comparing the signatures of Faisal
Essa on the photocopy of the Tenancy Agreement and other
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writing/copies of Faisal Essa's signature. Such a report of a
private handwriting specialist defies any basic requirement for
assessment of signatures and is clearly suspect and extremely
doubtful.
(ii) As opposed to this, Defendant No.1 has produced a
handwriting expert report wherein the handwriting expert has
compared the actual signatures and initials of Faisal Essa on
the original Agreement dated 30th October 2012 as against the
undisputed earlier Tenancy Agreement dated 24th October
2008 entered into with Defendant No.1. The said report states
that the signatures on all the Agreements are genuine.
(iii) Further, the CID investigation provided several documents
bearing Faisal Essa's signature, including the 2012 Agreement,
to the Additional Chief State Examiner of Documents C.I.D.,
Maharashtra State, Mumbai. Various documents were
furnished to the expert. Sample signatures of Faisal Essa signed
before the police authorities were taken and those were also
forwarded to the expert. Comparing all these documents and
sample signatures, the State Expert opined that the signature on
the Tenancy Agreement is in fact that of Faisal Essa. Signatures
marked as Exhibits Q-9, Q-10 and Q-11 are signatures found on
the 2012 Tenancy Agreement. The report states that while
Exhibits Q-9 to Q-11 are similar to specimens and original
specimens provided by Faisal Essa in person, they indicate
different authorship in comparison to some other specimens.
The Expert opined that seeing the various signatures of Faisal
Essa on different documents, it appeared that Faisal Essa was
deliberately signing differently at different places.
(iv) During the investigation, the CID considered the report of
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the Additional Chief State Examiner of Documents C.I.D.,
Maharashtra State, Mumbai, for charges of forgery and
fabrication and concluded as under:
"The complainant also denied the signatures on the
disputed agreement. But this defence is also not
correct. In fact during the course of investigation, it
is disclosed that there was no uniformity in his
signature. He was changing the manner and style
of his signatures, not only on the one document but
had signed differently on different pages of the
same document. The admitted documents of the
complainant bear different signatures. Investigating
Officer had sent him 10 letters which had been
acknowledged with different signatures."
Thus, the Report of the Addl. Chief Examiner (being an
independent government authority), falsifies the allegations of
forgery. The Report of the handwriting expert confirms that the
complainant had signed the Agreements deliberately in such a
manner as would give an impression to others that his
signatures had been forged. This can only be since Faisal Essa
would have contemplated that if in case the matter takes a
different turn, then he must have the option to deny his
signatures. The Report of the State Examiner puts an end to his
mala-fide intention. This alone should be enough to deny the
Plaintiff any interim relief.
(v) It was argued by the Plaintiff that a charge of forgery was
framed against Defendant No. 1 under Sections 467 and 468 of
IPC. This charge being contrary to the finding in the
chargesheet, Defendant No. 1 challenged the same in this Court
expressly raising the contention that the framing of the charge
of forgery was clearly contrary to the findings in the chargesheet
and the State Examiner's report. The chargesheet as against
Defendant No. 1 was stayed by this Court by Order dated 28th
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July 2015 passed in Criminal Application No. 726 of 2015. Thus,
at least at the interim stage, it is clear on the basis of the report
of an Expert of the State Government that the signature of
Faisal Essa on the Tenancy Agreement is not forged.
(vi) The other factor which has been raised in support of the
case of forgery of the Tenancy Agreement is that the Agreement
has been signed as the Power of Attorney Holder of Sheikh Saad
who died in 2008. The Plaint proceeds on the basis that the
Tenancy Agreement has been executed as the Constituted
Attorney of Sheikh Saad. [Para 33 (i) of the Plaint] A perusal
of the Tenancy Agreement discloses that the same is executed
with Faisal Essa as the Constituted Attorney of Sheikh
Abdullah. Thus, even the Plaintiff is confused between the
names of Sheikh Abdullah Al-Salem Al-Sabah and Sheikh Saad
Al-Abdullah Al-Salem Al-Sabah [paragraph 33(i) of the
Plaint].
(vii) The contention of the Plaintiff in essence is that Faisal
Essa acted as the Constituted Attorney of a dead person which
was not possible. Firstly, the same cannot be a factor which is
an indicator of a fabrication of the document. Once it is
established that the signature on the document is that of Faisal
Essa this aspect cannot be any indicator of any fabrication.
(viii) In any case, the Plaintiff does not dispute that Faisal Essa
did in fact have the authority to create tenancies in Al-Sabah
Court (the building) even after the death of Sheikh Abdullah
and later Sheikh Saad. After the death of Sheikh Saad, the
Plaintiff continued the authority of Faisal Essa to take care of
the building. This is expressly admitted in paragraph 6 of the
Plaint. In the course of arguments, a document, being a letter
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addressed by the Plaintiff to Faisal Essa [which was annexed as
an Exhibit to Criminal Writ Petition No. 2662 of 2013 filed by
Faisal Essa] was produced, wherein the Plaintiff requested
Faisal Essa to continue administering the property in Mumbai
and thanked him for all the help and cooperation rendered
towards the property since the time Sheikh Saad was alive. This
letter was not disputed by the Plaintiff. It is an admitted position
that subsequently the Plaintiff formalized the authority of
Faisal Essa by executing a Power of Attorney in his favour in
respect of the building Al-Sabah Court. In fact, even after the
death of Sheikh Saad, Faisal Essa continued to act in the name
of Sheikh Saad, executed various documents, created tenancies,
and even filed legal proceedings in the name of Sheikh Saad
which have not been disputed and have in fact been accepted
and acted upon by the Plaintiff. Thus, it is apparent that the
Plaintiff had no difficulty on Faisal Essa acting in the name of
Sheikh Saad even after his death. The fact that Faisal Essa
continued to act in the name of Sheikh Saad even after his death
is apparent from the following:
(a) Tenancy Agreement dated 24th October 2008 executed
by Faisal Essa in favour of Defendant No. 1 for Flat No.
(b) Tenancy Agreement dated 1st April 2009 executed by
Faisal Essa in favour of Sandeep Punamiya (brother of
Defendant No.1) for Flat No. 20.
(c) Tenancy Agreement dated 16th February 2010 executed
by Faisal Essa in favour of Pradeepkumar Bansal for Flat
No. 13.
(d) Undisputed rent receipts issued to various tenants by
Faisal Essa as the Constituted Attorney of Sheikh Saad
for period after 13th May 2008.
(e) Suit filed in the year 2010 by Faisal Essa in the name of
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Sheikh Saad even after his death in which, a settlement
was arrived at, and the Plaintiff has accepted the same.
(f) Faisal Essa continued to address correspondence and
letters in the name of Sheikh Saad pertaining to the
building even after 13th May 2008.
(g) Even after the filing of the present Suit, correspondence
addressed to Defendant No. 1 and other Tenants in the
name of Sheikh Saad.
(ix) In essence, Faisal Essa had the authority of the owners of
the building from time to time to create tenancies in favour of
different people. Acting upon the same, Faisal Essa from time
to time created tenancies in favour of different people. It is an
admitted position that the owners never came to India, and it
was Faisal Essa alone who created tenancies in Al-Sabah Court
and dealt with the tenants. So far as the occupants/tenants of
Al-Sabah Court are concerned, Faisal Essa, for all purposes,
was the person who was representing the owners and had full
authority to create tenancies, receive rents and do all dealings
with the tenants and it is on this basis that everyone proceeded.
(x) The mere mention of Sheikh Abdullah in the Tenancy
Agreement is immaterial. If the Plaintiff herself has been
confused between the different names considering the
similarity and length of the name and proceeds in the plaint on
the basis that the Tenancy Agreement is executed by Faisal Essa
as the Constituted Attorney of Sheikh Saad, no fault can be
found with the tenants for not realizing the same. In any case,
as stated earlier, for the tenants this was immaterial since it is
an undisputed position that whoever was the owner, he/she had
authorised Faisal Essa to do all acts and things in relation to Al-
Sabah Court and that authority is not disputed. So long as
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Faisal Essa had the authority of the existing owners, the mere
fact that the predecessor in title of the existing owners is
mentioned in the Tenancy Agreement can neither render the
Tenancy Agreement void nor illegal and neither is it any
indication of forgery or fabrication.
33. Dr. Saraf thereafter submitted that even the allegation of
fabrication of the rent receipts is completely false. In this regard, he
submitted that the Plaintiff in the plaint has alleged that the rent receipts
relied upon by the Defendants in respect of Flat No.21; the Ground Floor
Premises; and the Sixth Floor Premises are forged and fabricated. He
submitted that it is the case of the Plaintiff, that the blank rent receipts
along with the seals and stamps were kept in the office of the
Plaintiff/Faisal Essa (which according to the Plaintiff was run from the
Ground Floor Premises; and the Sixth Floor Premises) and that after 6th
May 2013, the servants of the Plaintiff/Faisal Essa gave Defendant No.1
complete access to the office of the Plaintiff which housed the said blank
receipts, seals and stamps. According to the Plaintiff, this is how
Defendant No.1 got access to the blank rent receipt books, seals and
stamps after 6th May 2013 and misused the same to create the subject rent
receipts of the Defendants' premises being Flat No.21; the Ground Floor
Premises; and the Sixth Floor Premises.
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34. Dr. Saraf submitted that in paragraph 32 of the plaint, it is
further stated that on the lawyers of the Plaintiff attending the matter in
the Marine Drive Police Station in May 2013, they learnt that on the basis
of forged and fabricated rent receipts, which Defendant No.1 have taken
from the stolen blank rent bill book, Defendant Nos.1 to 3 sought to
bolster their case as tenants in respect of Flat No.21; the Ground Floor
Premises; and the Sixth Floor Premises. Dr. Saraf submitted that the
Plaintiff, in support of her contention that the rent receipts are fabricated,
relies upon certain factors enumerated in paragraph 34 of the Plaint. Dr.
Saraf submitted that the entire case of the Plaintiff in this regard is ex-
facie false and can be clearly established from the following:
(i) On 12th December 2012, Defendant No. 1 filed RAN
Application No. 47 of 2012 for fixation of standard rent.
This RAN Application had the subject rent receipt
annexed at Exhibit B thereto. Furthermore, on 12th
February 2013, Defendant No. 1 filed a complaint
against Faisal Essa before the Additional Chief
Metropolitan Magistrate to which the subject rent
receipt was also annexed. Defendant No. 1 also filed
RAD Suit No. 174 of 2013 [in January 2013] before the
Small Causes Court for a declaration of his tenancy
rights in relation to Flat No.21 to which the subject rent
receipt was also annexed. Thus, the entire case that
blank rent receipts, seals and stamps were stolen after
6th May 2013 and thereafter fabricated, is clearly false
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since the subject rent receipt was in existence much
prior thereto and had been annexed to these judicial
proceedings. Similar is the case of Defendant No.2 & 3
who filed their RAD Suits in the Small Causes Court in
April 2013 and to which their respective rent receipts
were also annexed.
(ii) Once it is demonstrated that the rent receipts were in
existence much prior to 6th May 2013, the entire case of
the Plaintiff that the blank rent receipt books, stamps,
seals, etc. were stolen after Faisal Essa's departure for
Kuwait on 6th May 2013, and that the subject rent
receipts are created from such stolen rent receipt books
after 6th May 2013, collapses and falls to ground.
(iii) The fact that the amounts reflected in the rent receipts
were actually deposited in the account of Faisal Essa
has not been disputed. Thus, the cheque given by
Defendant No.1 which was handed over towards
payment of rent (for which the subject rent receipt was
issued) was duly encashed. Before the police
authorities, the person who deposited the cheque also
gave a statement categorically acknowledging that he
had gone and deposited the cheque. Defendant No. 1
has categorically stated in its pleadings that the subject
rent receipt was issued for Flat No.21 against the cheque
of Rs.50,000/- towards its rent which was duly
encashed. There is no controvert by way of a rejoinder
to this statement.
(iv) It was contended on behalf of the Plaintiff (though not
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pleaded in the Plaint or in any affidavit in rejoinder)
that these payments were in fact for the other tenanted
premises of Defendant No.1 being Flat No.3. In the
absence of any pleading and any controvert to the
statement made in the reply that these payments were
made towards deposit and rent under the impugned
Tenancy Agreement, such an argument ought not to be
permitted. In any case, on a bare perusal of the bank
statement annexed by Defendant No.1, it is evident that
Defendant No.1 has made separate payments of Rs.
12,420/- and Rs. 4,418/- on the same date as the
payment of cheques of Rs. 50,000/- each indicating
that these payments are separate transactions. If the
said payments of Rs. 50,000/- were towards the
undisputed tenancy of Flat No. 3 having a rent of Rs. Rs.
900/- per month, the question of making any further
payments of Rs. 12,420/- and Rs. 4,418/- on the same
day would not have arisen.
(v) It was also argued on behalf of the Plaintiff (though not
pleaded in the Plaint or in any affidavit in rejoinder)
that the Tenancy Agreement is dated 30th October 2012
while the payments were received in September 2012
and therefore, these payments could not have been
towards the alleged tenancy of Flat No.21. As pointed
out hereinabove, in the absence of any pleading and
controvert to the Affidavits of Defendant No. 1, such
arguments cannot be made orally. In any case, as
pointed out, it is not unknown that when a transaction
is agreed to, very often, certain amounts are paid first
and a formal agreement may be executed later. In the
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absence of such a contention being raised in the plaint
or any pleading, Defendant No. 1 is deprived of an
opportunity to deal with the same in any pleading. In
any case, the very cheque numbers of the cheques of
Rs.50,000/- are referred to in the Tenancy Agreement
and the rent receipt.
(vi) The Plaintiff sought to take mileage of the fact that there
was an error in the cheque number mentioned in the
Tenancy Agreement and the rent receipt issued along
with the same. (Para 33(iii) of the Plaint) As pointed
out in the course of argument as well as in the affidavit
of Defendant No. 1, it is merely that the two cheque
numbers have got interchanged. The cheque issued
towards rent has inadvertently been mentioned as
towards deposit in the Tenancy Agreement and the
cheque towards deposit has been mentioned as rent.
The fact remains that both the said cheques were
deposited and encashed. It is apparent that the Plaintiff
is, as an afterthought, raising baseless allegations in an
attempt to make out a case where none exists.
(vii) Each of the factors mentioned by the Plaintiff in support
of his case that the rent receipts are forged and
fabricated are baseless and no manner established that
the same are fabricated.
(viii) The fact that the bill number, serial number and rent
folio number is not mentioned in the rent receipt cannot
be evidence of forgery. In the common course of events,
when a receipt is handed over to any person, the person
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does not try to see the receipt number, etc. At the
highest, the person would see the amount for which the
receipt is issued. The allegation that the seal which was
put on the rent receipt was stolen by Defendant No. 1
from the ground floor office after 6th May 2013 is belied
by what is stated hereinabove. As regards the fact that
the rent receipt has the date written in hand whereas the
other rent receipts have a stamp of a date is no
indication of fabrication either. That is the choice of the
person issuing the rent receipt and in circumstances
where a stamp is not readily accessible or available, it is
not unusual for a person to put a date by hand. Thus,
there is no basis or material to suggest that the rent
receipts are fabricated. The allegation regarding the
fabrication of rent receipts is thus, ex-facie false.
35. Dr. Saraf submitted that this apart, the Plaintiff has also
miserably failed to prove Faisal Essa's possession of Flat No.21; the
Ground Floor Premises; and the Sixth Floor Premises up to 6th May 2013.
Dr. Saraf submitted that it is the case of the Plaintiff that the trespass took
place after 6th May 2013 and that the Plaintiff continued to be in
possession till that date. To establish that the Plaintiff was in possession
till 6th May 2013, the Plaintiff has relied upon the documents referred to
and the averments in paragraph 52 to 61 in the Plaint. Dr. Saraf submitted
that none of these documents in any manner establish the possession of
the Plaintiff. He submitted that in fact some of the facts are expressly
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proved false. Dr. Saraf submitted that the documents on which the
Plaintiff relies to establish its possession and the contentions of
Defendant No.1 in relation thereto are as under:
(i) Visit of Fahad M Al-Ajmi (Al-Ajmi) to the suit
premises during his stay in March 2013 and the
photographs taken by Al-Ajmi.
The Plaintiff contends that Al-Ajmi being the legal advisor of
the royal family of Kuwait, visited India in March 2013 and
during his visit, he personally visited the suit premises and
found furniture and valuables in the premises and confirmed
that Faisal Essa was in possession. Al-Ajmi during his visit,
took photographs. A document said to be an affidavit of Al-
Ajmi dated 15th July 2013 is annexed at Exhibit V, page 266 of
the Plaint. Firstly, the document at Exhibit V is not even an
affidavit. It is neither notarized nor signed before any
consulate. Hence, no cognizance can be taken of such a
document alleged to be an affidavit. Furthermore, before the
police authorities, though Al-Ajmi was listed as a witness,
Faisal Essa made a categorical statement that Al-Ajmi and
even the Plaintiff herself shall not be called upon for
investigation as they both are not concerned with the case
(criminal complaint filed by Faisal Essa). It is pertinent to note
that the case was of criminal trespass and Al-Ajmi's statement
was sought to be relied upon before the police authorities. Even
in this context, it is pertinent that neither Al-Ajmi, nor the
Plaintiff were produced before the CID, and in fact, it was
stated by Faisal Essa that they had nothing to do with the
matter. This statement was made after filing of the present
suit. In such circumstances, no reliance can be placed on the
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said document alleged to be an Affidavit of Al-Ajmi. Even
otherwise, Al-Ajmi's statement in the document alleged to be
an Affidavit [which is annexed to the Plaint], lacks credence. It
is inconceivable and unbelievable that Al-Ajmi would take the
names and record the names of every servant who was present
in the premises or would remember the names while making
the said statements. It is clear that this statement, if at all given
by Al-Ajmi (in the absence of any affidavit affirmed before a
consulate), is made only to favour the Plaintiff to pursue its
false case. It was contended that the fact that Al-Ajmi visited
the premises has not been disputed. Defendant No.1 has clearly
stated that under the Tenancy Agreement as well as in law, the
landlord is entitled to inspect the premises and that being so,
at the request of Faisal Essa, he was allowed to inspect the
premises. The mere fact that Faisal Essa visited the premises
cannot be a proof of possession.
(ii) Photographs:
As regards the photographs said to have been taken during the
visit of Al-Ajmi, the said photographs will have to be proved
during the trial, and in accordance with law. In any case, the
said photographs do not in any manner establish the
possession of Faisal Essa. Further, Defendant No. 1 has
categorically stated that in one of the photographs at page 225
of the Plaint, the father of Defendant No. 1 is seen sitting on a
chair. This has not been denied by the Plaintiff in any
pleadings. In the course of the arguments, it was merely stated
that the figure is a mere silhouette of a human being without
any facial features of whom identification is difficult. This was
never stated in any affidavit. In any case, this does not
constitute any denial. There is no explanation that if Faisal
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Essa was in possession and Al-Ajmi came to visit the premises
when it was in the possession of Faisal Essa, how and why was
the father of Defendant No. 1 present in Flat No.21. Thus, the
photographs themselves establish the possession of Defendant
No. 1.
(iii) Report of the valuer E.V. Lokhandwala &
Associates:
In paragraphs 55 and 56 of the Plaint, it is stated that Al-Ajmi
engaged the services of E.V. Lokhandwala & Associates for
valuation of the building and that the valuer has confirmed in
its report that the suit premises were in owners' occupation.
The Valuation Report states that the valuer had inspected the
premises (Paras 55 and 56 r/w Exh. S, Pg. 243 of the
Plaint). From this, it was suggested that the valuer inspected
the premises in March 2013 on Al-Ajmi's instructions and
thereafter confirmed that the subject property was in owner's
possession. This entire stand has been proved false. Before the
CID, the valuer's representative (Mr. Dattaram Taware) made
a statement that he had visited the premises/the building in
the year 2005 and that he had done the valuation on that basis.
He has confirmed that the visit referred to in his report is a visit
of 2005 and not of 2013, as was sought to be suggested.
Furthermore, in a supplementary statement, he confirmed that
neither he nor anyone from his office visited the building in the
year 2013. He clarified that the Valuation Report prepared on
the instructions of Al-Ajmi is based on the data available with
E.V. Lokhandwala & Associates from the site visit and
Valuation Report of 2005. The valuer Dattaram Taware
categorically states that as he did not visit the building in 2013.
Thus, the entire suggestion that the valuer visited the premises
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in 2013 and confirmed that the premises were in the
possession of the owner is false.
(iv) Report of interior decorators:
Reliance placed on the interior decorators' ('INDECO')
refurbishment proposal engaged by Al-Ajmi does not in any
manner establish the possession of Faisal Essa. It merely
states that they surveyed the premises on the 5th floor. This
does not in any manner establish any possession. In any case,
there is not even an identification of the premises on the 5th
floor. The Valuer's Report discloses that the 5th floor has four
units.
(v) Electricity meter:
In paragraph 59, it is stated that since electricity meter shows
the name of the Plaintiff, the premises are in the possession of
the Plaintiff. This contention is without any basis. The mere
continuance of an electricity meter in the name of the Plaintiff
for some time till it is transferred in the name of a tenant does
not in any manner establish possession. It is a known fact that
even after a person purchases premises, the electricity meter
continues in the name of the seller till such time a transfer
application is made. It is pertinent that the Plaintiff has not
even produced a single electricity bill for Flat No.21 which has
been paid by Faisal Essa/owners nor is there an averment that
any such electricity bill was paid by the Plaintiff/Faisal Essa.
If a person is in possession, electricity bills and the fact of its
payment, is always one of the aspects in support of possession.
The Plaintiff has miserably failed in this regard. On the
contrary, Defendant No. 1 has produced electricity bills for
certain months between October 2012 to May 2013 which were
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paid by Defendant No. 1. Furthermore, Defendant No. 1 made
a transfer application pursuant to which electricity meter also
stood transferred in the name of Defendant No. 1 in December
2013.
(vi) MTNL's bills;
It is alleged by the Plaintiff that the MTNL bills for the period
1st May 2013 to 31st May 2013 reflect that on these days
international calls to Kuwait were made from certain landline
numbers which were located on the ground floor, and which,
according to the Plaintiff, are premises occupied by Defendant
No. 2. Firstly, this MTNL bill does not pertain to Flat No.21 on
the 5th floor which relates to Defendant No. 1. In any case,
before the police authorities, the officer of the MTNL was
called during investigation and the MTNL officer made a
statement before the police authorities which is recorded in the
CID report to the effect that Faisal Essa had applied for
transfer of the phone from 6th floor to ground floor and
accordingly, on 8th May 2013 after complying with the request
of the complainant, the instrument was shifted from the 6th
floor to the ground floor. It cannot be disputed that there is
more than one unit on the ground floor which is reflected from
the valuer's report at page 243 of the Plaint. Thus, there is
nothing to demonstrate that the said telephone was in any of
the premises which are the subject matter of the present Suit.
In any event, Defendant No. 1 is unrelated to the Ground
Floor Premises and/or the Sixth Floor Premises. The
MTNL landline calls do not establish the Plaintiffs case of
possession in respect of Defendant No. 1's premises being Flat
No. 21 on the 5th floor.
Laxmi page 56 of 122
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(vii) Affidavits of tenants:
In paragraph 61 of the plaint, the Plaintiff has relied upon
affidavits of various tenants at Exhibits Y-1 to Y-16. It is stated
that the said affidavits confirm that Faisal Essa was in the suit
premises till 6th May 2013. A perusal of the said affidavits
discloses that all of them are verbatim. Each of the tenants
claim to have met Faisal in the suit premises (all three
premises on different floors being the 6th floor, 5th floor and the
ground floor) till the last week of April 2013 until he left for
Kuwait, which is entirely inconceivable. Such verbatim
affidavits completely lack credence. In this regard, reliance is
placed on the following judgments:
(a) Broadhead's Application for Registration of
a Trademark (Judgment of Court of Appeals, LXVII
RPC 209 at page 211, 3rd paragraph and last paragraph).
The court held that the evidence which consists of a
number of people signing precisely similar statement
lacks persuasiveness. The court noticed that the words
were quite plainly invested by some persons who are
concerned in the preparation of the case and that "every
player in the orchestra plays in unison." The court
observed that if one read one paragraph on each side
and multiplied it by the number of declarations on each
side, you have got the totality of evidence.
(b) Re: Christiansen's Trade Mark (1886 RPC 54
at page 60 and 61) (Judgment of the High Court
Justice Chancery Division, last seven lines). The court
observed that when evidence is given on affidavit and
there are numerous affidavits all swearing to exactly the
same thing and in a stereotype fashion, they are suspect
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because every person could not have had the same set
of facts.
In any case, most of the tenants gave statements before
the police by stating that they did not know the contents
of the affidavits. The affidavits were prepared by Faisal
Essa, and they were merely told that the affidavits had
something to do with the building and the tenants
signed the same without knowing the contents. Various
tenants even withdrew their affidavits before the
Magistrate. A contention that a couple of tenants stood
by their statement is of no help in the face of the
retraction by such large number of tenants. The attempt
on the part of Faisal Essa to gather such evidence from
people without knowing what they signed, is sufficient
to demolish the case of the Plaintiff. The comment on
the fact that the tenants were pressurized by
proceedings to retract their statements is without any
basis in the pleadings and in any case, in the face of a
withdrawal before a Magistrate, such a comment is
unjustified. As regards a couple of tenants who have not
retracted the statements, they could have very well done
so to merely favour Faisal Essa/the owners. These will
be matters of evidence at the stage of trial.
36. Dr. Saraf submitted that apart from the aforesaid, there are
various other documents and material which confirm that it was
Defendant No.1 who was in possession of Flat No.21 right from the
October 2012. Before the CID, the statements of various persons were
recorded wherein they confirmed the possession of Defendant No.1. Even
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the police panchnama drawn up pursuant to the investigation in the
complaint filed by Defendant No.1 confirmed the possession of
Defendant No.1 of Flat No.21.
37. Dr. Saraf submitted that when faced with all this
overwhelming evidence, especially, the investigation carried out by the
CID, the Plaintiff sought to raise a contention that under Section 162 of
the Cr.P.C, the statements made to the police officer in the course of the
investigation cannot be relied upon in the present proceedings. Dr. Saraf
submitted that this submission is ex-facie contrary to the wordings of the
said Section and is in any event now covered by a decision of the Hon'ble
Supreme Court in the case of Khatri & Ors. Vs. State of Bihar
[(1981) 2 SCC 493]. Dr. Saraf submitted that the aforesaid decision
now clearly lays down that the bar under Section 162 is only in the inquiry
or trial in respect of the offence which was under investigation at that
time when the statement was made. It was held that the said provision
has no application in civil proceedings and the statement made before the
police officer in the course of the investigation can be used as evidence in
civil proceedings, provided it is otherwise relevant under the Indian
Evidence Act. Dr. Saraf submitted that the mere fact that this objection
was raised clearly shows that the Plaintiff having approached this Court
with a false case, now seeks to obstruct any credible material which
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clearly indicates the falsity of their case. According to Dr. Saraf, it speaks
volumes on the conduct of the Plaintiff. Dr. Saraf submitted that in the
absence of this Court having before it, the evidence being led by the
parties and in the face of a lack of an affidavit in rejoinder on behalf of the
Plaintiff, the material gathered by the CID in the course of its detailed
investigation and the statements recorded of various persons, are of great
relevance and significance, before this Court decides whether any interim
relief ought to be granted in favour of the Plaintiff. Dr. Saraf submitted
that in the facts of the present case, it is nowhere in dispute that Faisal
Essa did have the authority to create tenancies in the building Al-Sabah
Court. The Plaintiff does not proceed on the basis that Faisal Essa had no
authority of the owners to create any tenancy. In fact, in paragraph 6 of
the Plaint it is admitted that Sheikh Saad, during his lifetime, had
authorized Faisal Essa and after the death of Sheikh Saad the Plaintiff
had granted the necessary and specific authority to Faisal Essa to take
care of the building Al-Sabah Court. Dr. Saraf submitted that from the
plaint itself it is clear that Faisal Essa had the authority to create
tenancies in the building Al-Sabah Court and this fact is undisputed.
38. Dr. Saraf submitted that in the plaint it is in fact contended
that even if the Tenancy Agreement was executed by Faisal Essa as a
Power of Attorney Holder of Sheikh Saad, Sheikh Saad had expired prior
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thereto and hence the Tenancy Agreement could not have been executed.
This fact is highlighted as an aspect of forgery and fabrication as would
be apparent from the opening part of paragraph 33 of the plaint. There is
no contention in the plaint that the Tenancy Agreement was executed by
Mr. Faisal Essa as a Power of Attorney Holder of Sheikh Abdullah and
that Sheikh Abdullah had never given any such Power of Attorney.
Further it is not even the case in the plaint that Faisal Essa had no
authority whatsoever to create tenancies of any flats/units in the building
called Al-Sabah Court. In fact, as mentioned earlier, Faisal Essa had
created several tenancies even after the death of Sheikh Saad and which
tenancies have never been disputed by the Plaintiff. Same is the case with
reference to the rent receipts. Dr. Saraf submitted that even after the
death of Sheikh Saad, Faisal Essa continued to issue rent receipts, and
which rent receipts also have never been disputed by the Plaintiff. Dr.
Saraf submitted that this does not stop here. A suit was filed by Faisal
Essa before the City Civil Court being Suit No. 1509 of 2010 in the name
of Sheikh Saad after his death. In that suit a settlement was arrived at
with the Defendant therein. The cause title of the Suit indicates that
Sheikh Saad was represented as alive and a 77 year old adult. The Plaintiff
has taken benefit of the settlement and has never disputed the initiation
of the legal proceedings in the name of Sheikh Saad even after his death.
Dr. Saraf submitted that all this material makes it clear that Faisal Essa
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had the express authority on behalf of the owners to create tenancies,
transfer tenancies, collect rent, etc. in relation to the flats in the building
called Al-Sabah Court. In any case, at the relevant time (in 2012), Faisal
Essa definitely had authority of the Plaintiff to create tenancies in the
building, and this aspect is not disputed. Apart from paragraph 6 of the
plaint, where there is a categorical admission, Faisal Essa also made
supplementary statements dated 5th March, 2014 and 5th May, 2014
before the CID in which he admitted that he had been appointed as the
administrator and care taker of the building under the Power of Attorney
up to the year 2008 and that thereafter, the Plaintiff sent a letter and
informed him that he should continue to work in the building as its
administrator and that a Power of Attorney would be sent later. He had
further stated that the Power of Attorney was thereafter given in August
2013. From the aforesaid, it is apparent that Faisal Essa was in fact
authorized at all times to create tenancies in the building called Al-Sabah
Court. It is also not disputed that the landlord of the Al-Sabah Court had
never come to India and had never visited the building. For the occupants
of the building, for all the practical purposes, Faisal Essa was acting as
the landlord duly authorised by the owners to do all that is required in
respect of the building. After the death of Sheikh Saad also, Faisal Essa
continued to act as the Power of Attorney Holder of Sheikh Saad and even
initiated legal proceedings on that basis. The Plaintiff permitted this
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course of action. The death of any of the owners of the building was
immaterial to the tenants as the tenants exclusively dealt with Faisal Essa
for any purposes pertaining to the building. Dr. Saraf submitted that in
any event, the Plaintiff has failed to plead or place anything on record to
indicate that the tenants including Defendant No.1 were aware of the
death of Sheikh Abdullah or Sheikh Saad and its impact on the authority
of Faisal Essa to deal with the said building. Dr. Saraf submitted that this
is clearly indicative of the fact that the contention now raised in the course
of arguments, is clearly an afterthought and without any basis even in the
plaint.
39. Dr. Saraf then submitted that it was contended by the
plaintiff that no Power of Attorney of Sheikh Abdullah has been produced
till date by any of the Defendants. According to Dr. Saraf, firstly, there is
no contention in the plaint that Faisal Essa had no authority from Sheikh
Abdullah to create tenancies. In such circumstances, the question of
Defendant No.1 responding to the same by producing any Power of
Attorney of Sheikh Abdullah did not arise. In any case, since this was
argued orally by the Plaintiff, a copy of the Power of Attorney dated 11th
May, 1959 of Sheikh Abdullah has been given to the Court. Dr. Saraf
submitted that this apart, in any case, the authority of Faisal Essa given
by Sheikh Saad and subsequently by the plaintiff along with the other
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legal heirs of Sheikh Saad was extended under the relevant Power of
Attorneys issued in favour of Faisal Essa and which fact is admitted.
Reference to these documents has been made at several places such as
the statement of Faisal Essa before the CID, annexures to his Criminal
Writ Petition No. 2662 of 2013 and contentions of the Advocates of Faisal
Essa in their complaints. Once the owners of the building allowed Faisal
Essa to hold himself out to be the one authorized on behalf of the owners
to be the administrator of the building Al-Sabah Court and to create
tenancies, it makes little difference whether he held himself out to be
representing Sheikh Abdullah, Sheikh Saad or the present Plaintiff. Dr.
Saraf submitted that the tenants of Al-Sabah Court only dealt with Faisal
Essa and for all practical purposes, Mr. Faisal Essa was the landlord of
the said building since he was authorized by the owners to deal with the
building in whichever way he thought fit. Once this is the case, if the
Plaintiff has any grievance, it is against Faisal Essa who was their agent
and not against the tenants of Al-Sabah Court which include the
Defendants in the present Suit. In support of this proposition, Dr. Saraf
relied upon the various sections of the Indian Contract Act, 1872 which
deals with the authority of an agent.
40. In conclusion, Dr. Saraf submitted that the Plaintiff has
failed to make out a prima facie case. He submitted that most of the
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arguments canvassed before me were much beyond the case pleaded in
the plaint. According to Dr. Saraf, far from making out a prima facie case,
the Plaintiff has been unable to answer vital aspects pleaded in the
Affidavits in reply, which, clearly demonstrates the falsity of the case
pleaded in the plaint. Dr. Saraf submitted that at the interim stage, the
report of the State Examiner as regards the genuineness of the signature
of Faisal Essa on the Tenancy Agreements is extremely crucial. Further,
statements made by the various persons before the police authorities and
the detailed material collected by them in the course of the investigation
also discloses, at least prima facie, that there was no criminal trespass or
forgery by Defendant No.1 as alleged in the plaint. Dr. Saraf submitted
that the Plaintiff has maintained a stoic silence and chosen not to file any
response to the various affidavits filed by Defendant No.1 including the
affidavit which pointed out the rent and deposit cheques paid under the
Tenancy Agreement, and which were encashed by Faisal Essa. Dr. Saraf
submitted that these aspects cannot be sought to be answered in
arguments in the absence of any affidavit/pleading being filed by the
Plaintiff.
41. Dr. Saraf lastly submitted that even on the test of balance of
convenience, the same is not in favour of the Plaintiff and is totally in
favour of the Defendants. As far as the balance of convenience is
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concerned, Dr. Saraf submitted that it is an undisputed position that the
Plaintiff has never visited the suit premises and even now, the Plaintiff
has stopped taking care of the building Al-Sabah Court altogether. In
fact, as on date, the occupants of the building have formed an association
called the "Al-Sabah Court Tenants Association" and it is this Association
which is now collecting the rent and maintaining the building. The
Plaintiff has stopped collecting rent from the tenants since 2016 and it is
the tenants themselves who are collecting the rent and using it towards
the maintenance and upkeep of the building. Dr. Saraf submitted that
Defendant No.1 has already made a statement before this Court that
Defendant No.1 shall not deal with or part with possession of Flat No.21
and on the basis of which this Court was pleased to pass an order dated
7th May 2014 in the above Notice of Motion. Dr. Saraf submitted that at
the interim stage, in the facts and circumstances of the present case, this
adequately protects the interest of the Plaintiff pending the trial. There is
absolutely no warrant for the appointment of a Court Receiver especially
when the Plaintiff has miserably failed to establish that the Tenancy
Agreements under which the Defendants occupied their respective
premises, are forged and fabricated. For all the aforesaid reasons, Dr.
Saraf submitted that other than the relief of injunction, no further relief
be granted in favour of the Plaintiff.
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SUBMISSIONS OF DEFENDANT NO.2:
42. Mr. Ardeshir, the learned Counsel appearing on behalf of
Defendant No.2, reiterated all the arguments canvassed By Dr. Saraf. Mr.
Ardeshir submitted that Defendant No.2 is a tenant of the Ground Floor
Premises [next to Flat No.1] in the building called Al-Sabah Court. He
submitted that a tenancy of the Ground Floor Premises was validly
created under a Tenancy Agreement dated 31st January 2013. As far as
Defendant No.2 is concerned, Mr. Ardeshir submitted that Defendant
No.2, in his affidavit in reply dated 25th July 2014, has clearly stated that
Defendant No.2 was an estate broker who came in contact with Faisal
Essa and Defendant No.1. Since he was in need of a small office for
business in South Mumbai, Faisal Essa offered him the Ground Floor
Premises on a tenancy basis and put him in possession thereof 0n 1st
August 2012 and thereafter promised to execute and register a Tenancy
Agreement. He submitted that Defendant No.2 has specifically stated
that on 30th January 2013, Faisal Essa's son, one Mr. Basar, called
Defendant No.2 and Defendant No.3 at his residence and requested them
to sign the original Tenancy Agreements already prepared on the
same/identical terms as that of the other Tenancy Agreements executed
by Faisal Essa. It is specifically pleaded in the affidavit that at this time,
Defendant No.2 signed and handed over a cheque of Rs.9,000/- on
account of advance payment of rent up to 31st December 2013. Defendant
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No.2 has further stated that the next day i.e. 31st January 2013, the said
Mr. Basar once again called him at his residence and when he reached
there, Mr. Basar gave him the Tenancy Agreement which had been
signed by Faisal Essa along with the rent receipt for the payment of rent.
Defendant No.2 has specifically stated that at this time, the said Mr.
Basar had informed him that the said Tenancy Agreement had been
signed and executed by Faisal Essa in hospital before a Notary "M. N.
Naqvi".
43. Mr. Ardeshir submitted that this is the positive case with
which Defendant No.2 has approached this Court. The plaintiff, let alone
putting forward her case, has even failed to so much as to formally deny
the facts pleaded by Defendant No.2 by filing any affidavit in rejoinder.
Mr. Ardeshir submitted that all these facts have gone uncontroverted and
thus admitted by the plaintiff. He submitted that pertinently Faisal Essa
was very much alive when Defendant No.2 filed his affidavit in reply
dated 25th July 2014. Despite this, no affidavit has been filed by Faisal
Essa controverting what is stated in the affidavit of Defendant No.2. This
being the case, Mr. Ardeshir submitted that the pleadings of Defendant
No.2 are itself enough to deny the Plaintiff any interim relief.
44. This apart, Mr. Ardeshir submitted that at least as far as
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Defendant No.2 is concerned, there is intrinsic evidence to show that the
Tenancy Agreement entered into with Defendant No.2 [dated 31st
January 2013], far from being forged and fabricated, actually emanated
from Faisal Essa. Mr. Ardeshir took me through the Tenancy Agreement
and more particularly the execution page thereof which shows that it has
been signed by Faisal Essa and Defendant No.2 and who have also affixed
their respective photographs thereto. The Execution page also bears the
signature and stamp of a Notary "M. N. Naqvi" and the signature and
stamp of an advocate of this Court "Mutavalli G. M." along with the words
"IDENTIFIED BY ME".
45. Mr. Ardeshir then pointed out that the Plaintiff has relied
upon the 16 affidavits filed by the tenants of the said building, and which
are annexed at Exhibits Y1 to Y16 to the plaint. He submitted that it is
the Plaintiff's own case that these affidavits are genuine. He then took me
through the execution page of these affidavits and submitted that 14 out
of the 16 affidavits bear the signature and stamp of the Notary "M. N.
Naqvi" and the signature and stamp of an Advocate of this Court
"Mutavalli G. M." along with the words "IDENTIFIED BY ME". He
submitted that Defendant No.2 has nothing to do with these affidavits
and in fact, the CID during its investigation has come to the conclusion
that these affidavits have in fact been prepared by the Plaintiff's advocate
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and thereafter simply given to the tenants to sign. Mr. Ardeshir submitted
that this does not stop here. During the course of arguments, Mr.
Ardeshir tendered across the bar a Deed of Retirement of Trustees dated
13th July 2011 by which Faisal Essa was confirmed as one of the surviving
Trustees of the Helal Bin Fajhan Trust. Annexed to this Deed dated 13th
July 2011 is a Power of Attorney dated 8th June 2011 given by Mr. Mahed
Bin Helal Bin Fajhan to Faisal Essa. Pertinently, a perusal of the Power
of Attorney annexed thereto discloses that this document also bears the
Notarial stamp of "M. N. Naqvi". Mr. Ardeshir submitted that it is not a
mere coincidence that the 14 affidavits annexed to the plaint i.e. 14 out of
16 affidavits (Exhibits Y1- to Y-13 & Y16) and the Tenancy Agreement
entered into by Faisal Essa with Defendant No.2 bear both (i) the
signature and the Notarial stamp of "M. N. Naqvi", and (ii) the signature
and stamp of an Advocate of this Court, "Mutavalli G. M." along with the
words "IDENTIFIED BY ME". Mr. Ardeshir submitted that when one
looks at all this material, at least prima facie, it is clear that the Tenancy
Agreement dated 31st January 2013 executed by Faisal Essa in favour of
Defendant No.2, far from being a forged and fabricated document, is a
document that actually emanated from Faisal Essa. Mr. Ardeshir
submitted that if he is correct in his submission, then the entire case of
the Plaintiff falls to the ground and the Plaintiff is not entitled to any
interim relief.
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46. Mr. Ardeshir submitted that being confronted by these facts,
the Plaintiff sought to contend during oral arguments that the stamps of
the Notary "M. N. Naqvi" and the advocate "Mutavalli G. M." along with
the words "IDENTIFIED BY ME" were forged and fabricated by
Defendant No.2. Mr. Ardeshir submitted that this argument is stated only
to be rejected. Mr. Ardeshir submitted that nowhere in pleadings have
the Plaintiff ever taken up such a contention. This apart, Mr. Ardeshir
submitted that the Tenancy Agreement dated 31st January 2013 has been
annexed as Exhibit-A to RAD Suit No. 606 of 2013 filed by Defendant
No.2 before the Small Causes Court at Mumbai seeking inter-alia a
declaration of his tenancy rights in respect of the Ground Floor Premises.
The plaint in the aforesaid suit was affirmed on 1st April 2013 and the
aforesaid Suit was filed on 3rd April 2013. This was long before any of the
affidavits (Exhibits Y1 to Y16) were executed by the tenants of the
building called Al-Sabah Court. The affidavits of the 16 tenants
(Exhibits Y1 to Y16) were executed only sometime in August 2013 and
were brought to the knowledge of Defendant No.2 only after being served
with this Plaint which was itself filed only in December 2013. It is thus
inconceivable that Defendant No.2 would have known that the Plaintiff
would firstly file this suit subsequently, and in such suit, would rely upon
the affidavits of the tenants and would get such affidavits notarized by
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"M. N. Naqvi" and/or get them identified by "Mutavalli G. M.". Mr.
Ardeshir submitted that such as much as Defendant No.2 would like to
believe, he is not a person who can see into the future. He therefore
submitted that the argument of the Plaintiff that the stamps of the Notary
"M. N. Naqvi" and that of advocate "Mutavalli G. M." along with the
words "IDENTIFIED BY ME" are forged and fabricated by Defendant
No.2 holds no substance.
47. According to Mr. Ardeshir, the authenticity of his Tenancy
Agreement is also corroborated by Defendant No.2's bank statement. Mr.
Ardeshir submitted that clause 3 of the Tenancy Agreement clearly
records that Defendant No.2 had paid a sum of Rs. 9,000/- to Faisal Essa
by a post-dated cheque No. 098983 dated 1st February 2013 drawn on
Axis Bank, Andheri (West) Branch, on account of advance rent for the
period of 12 months from January 2013 to December 2013. Mr. Ardeshir
submitted that Defendant No.2 has produced his bank statement which
shows that the aforesaid cheque was in fact encashed by Faisal Essa on
2nd February 2013. It is an admitted position that Defendant No.2 had no
prior relationship with the Plaintiff or Faisal Essa and therefore had no
occasion to pay Faisal Essa any money, apart from under the Tenancy
Agreement. If the Tenancy Agreement is forged and fabricated, Faisal
Essa would have had no occasion to accept the money from Defendant
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No.2 and which was referred to in the Tenancy Agreement. This amply
demonstrates that the said Tenancy Agreement is a genuine document
which not only emanated from Faisal Essa, but it was in fact acted upon
by Faisal Essa who accepted the consideration thereunder. There is
absolutely no explanation coming forth from the Plaintiff either in the
pleadings or even during the course of arguments as to why Faisal Essa
encashed the cheque of Rs. 9,000/- from Defendant No.2, if Defendant
No.2 was a rank trespasser.
48. Mr. Ardeshir then submitted that according to Plaintiff,
Defendant Nos. 2 and 3 are only the stooges of Defendant No.1 and they
have trespassed into the property of the Plaintiff after Faisal Essa left for
Kuwait on 6th May 2013. If this situation is to be believed, there is no
explanation as to why Faisal Essa, on 2nd February 2013, encashed the
cheque of Rs.9,000/- given by him towards the advance payment of rent.
In conclusion, therefore, Mr. Ardeshir submitted that this clearly goes to
establish beyond any doubt that the Tenancy Agreement dated 31st
January 2013 entered into by Faisal Essa with Defendant No.2 is a
genuine Agreement and is not forged and fabricated. Consequently, Mr.
Ardeshir submitted that no case is made out by the Plaintiff for seeking
any interim reliefs and the Notice of Motion be rejected.
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SUBMISSIONS OF DEFENDANT NO.3:
49. Mr. Bharucha, the learned Counsel appearing on behalf of
Defendant No.3, adopted the arguments canvassed by Dr. Saraf as well as
Mr. Ardeshir. Mr. Bharucha submitted that even as far as Defendant No.
3 is concerned, just like the Tenancy Agreement of Defendant No.2, the
Tenancy Agreement of Defendant No.3 also emanates from Mr. Faisal
Essa, and it is the same Notary and Advocate who has stamped and
identified the Tenancy Agreement of Defendant No.3. Mr. Bharucha
submitted that in the affidavit in reply dated 9th March 2015 filed by
Defendant No.3, he has specifically averred as to how Defendant No.3
came into possession and occupation of the Sixth Floor Premises
[adjacent to the terrace] admeasuring approximately 300 sq.ft. (carpet).
The Plaintiff is fully aware of the contents of the affidavit in reply filed by
Defendant No.3. Despite the same, the Plaintiff has not filed any affidavit
countering what is stated by Defendant No.3 to his personal knowledge
and has kept on insisting that Defendant No.3 is a trespasser in relation
to the Sixth Floor Premises. Mr. Bharucha therefore submitted that no
case whatsoever has been made out for granting any interim reliefs in
favour of the Plaintiff and consequently the Notice of Motion be
dismissed with costs.
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REASONING AND FINDINGS:
50. I have heard the learned counsel for the respective parties at
great length and I have also perused the papers and proceedings in the
above Suit. Before I can consider what relief, if any, can be granted to the
Plaintiff, one has to understand the case with which the Plaintiff has
approached this Court. The above Suit has been filed by the Plaintiff to
declare that the Defendants or any of them are trespassers and have no
right of any nature whatsoever in (i) Flat No. 21 [on the 5th floor]; (ii) the
Ground Floor Premises [next to Flat No.1]; (iii) the Sixth Floor Premises
[adjacent to the terrace]; and the Parking Garage [of 225 sq.ft.] of the
building called Al-Sabah Court situated at 73/105, Marine Drive,
Mumbai - 400 020. A further declaration is sought that the Tenancy
Agreement dated 30th October 2012 entered into with Defendant No.1
and two further Tenancy Agreements both dated 31st January 2013,
entered into with Defendant Nos. 2 and 3 respectively, are forged and
fabricated and do not bind the Plaintiff. As a consequence, the plaint also
seeks a decree against the Defendants to handover quiet, vacant and
peaceful possession of (i) Flat No. 21 [on the 5th floor]; (ii) the Ground
Floor Premises [next to Flat No.1]; (iii) the Sixth Floor Premises
[adjacent to the terrace]; and the Parking Garage [of 225 sq.ft.] to the
Plaintiff or her assignees and/or her Constituted Attorney. It is in aid of
these final reliefs that the Plaintiff seeks the appointment of a Court
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Receiver of the aforesaid premises as well as an order of mesne profits
against the Defendants in the amount of Rs.35 Lakh per month. The
relief of mesne profits is sought on the basis that the Defendants are in
unlawful occupation and possession of the premises mentioned above.
51. In the plaint, it is pleaded that the Plaintiff is the daughter of
Sheikh Saad, "Emir" of Kuwait, who was the owner of the building Al-
Sabah Court. This building was owned by the Royal Family of Kuwait.
Originally Sheikh Abdullah was the long-term lessee of this building. He
expired on 24th November 1965 leaving Sheikh Saad as his legal heir.
After the death of Sheikh Saad in 2008, the Plaintiff and the other heirs
of the Sheikh Saad are the present owners of the said building. It is,
thereafter, the case of the Plaintiff that during the lifetime of the Sheikh
Saad, the said building was taken care of by Faisal Essa and after the
demise of Sheikh Saad, his heirs including the Plaintiff, granted the
necessary and specific authority to Faisal Essa to take care of the
building. According to the Plaintiff, the entire building is occupied by the
tenants except (i) Flat No. 21 [on the 5th floor]; (ii) the Ground Floor
Premises [next to Flat No.1]; (iii) the Sixth Floor Premises [adjacent to
the terrace]; and the Parking Garage [of 225 sq.ft.]. According to the
Plaintiff, these premises were occupied by Sheikh Saad and thereafter,
his legal heirs (including the Plaintiff), through Faisal Essa.
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52. It is the case of the Plaintiff that Faisal Essa had a kidney
transplant at Breach Candy hospital between 18th January 2013 and 16th
February 2013 and was thereafter recuperating at home and regularly
visiting the hospital. On 6th May 2013, Faisal Essa left India for Kuwait,
leaving the keys of the premises mentioned above with his staff.
According to the Plaintiff, Defendant No.1 had developed friendly
relations with the staff of Faisal Essa and immediately after Faisal Essa
left India on 6th May 2013, the Defendants took forcible possession of the
premises described hereinabove, namely, (i) Flat No. 21 [on the 5th floor];
(ii) the Ground Floor Premises [next to Flat No.1]; (iii) the Sixth Floor
Premises [adjacent to the terrace]; and the Parking Garage [of 225
sq.ft.]. It is the case of the Plaintiff that since all the important documents
in relation to the said building such as personal important documents,
government documents, documents pertaining to title and tenancy of the
building, receipt books of the past and blank receipts books, seals, and
signature stamps etc were all in the Sixth Floor Premises [adjacent to the
terrace] and the Ground Floor Premises [next to Flat No.1], Defendant
No.1 got access to all the blank receipts, seals and signature stamps etc
and thereafter, in collusion with Defendant Nos.2 & 3, hatched an
unlawful conspiracy to illegally oust the Plaintiff from (i) Flat No. 21 [on
the 5th floor]; (ii) the Ground Floor Premises [next to Flat No.1]; (iii) the
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Sixth Floor Premises [adjacent to the terrace]; and the Parking Garage
[of 225 sq.ft.]. According to the Plaintiff, after Faisal Essa left for Kuwait
on 6th May 2013, Defendant No. 1, in connivance with Defendant Nos. 2
and 3, took illegal and forcible possession of the premises mentioned
above alongwith the rent bill books, relevant bills, seals, and signature
stamps etc. Thereafter, to somehow legitimize their illegal possession and
occupation of the premises described above, the Defendants created
forged and fabricated documents by way of creation of illegal Tenancy
Agreements and rent receipts in relation to the premises described
herein.
53. To substantiate the case of the Plaintiff that the signatures of
Faisal Essa on the Tenancy Agreements were forged, the Plaintiff has
relied upon the report of the handwriting expert. Over and above this, it
was argued/contended that since the Emir of Kuwait (Sheikh Saad)
expired in 2008, no Agreement could have been executed by Faisal Essa
on his behalf after his death. This argument is canvassed on the basis that
the Tenancy Agreements entered into with the Defendants are allegedly
executed by Faisal Essa as the Constituted Attorney of Sheikh Saad and
since Sheikh Saad had already expired, the Power of Attorney given by
Sheikh Saad to Faisal Essa had automatically come to an end. There are
other circumstances that are also set out in the plaint to justify the case
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of the Plaintiff that the so-called Tenancy Agreements entered into by
Faisal Essa with Defendant Nos. 1, 2 and 3 (in relation to their respective
premises) are forged and fabricated and that the rent receipts also in
relation to these Tenancies are also false and fabricated. To substantiate
the case of the Plaintiff that Faisal Essa was in possession of the premises
described hereinabove till 6th May, 2013 (when he left for Kuwait), the
Plaintiff has relied upon a visit by one Mr. Fahad M. Al-Ajmi, on 17th
March 2013 who allegedly inspected the premises and took photographs;
the said Fahad M. Al-Ajmi engaged services of a Valuer [E. V.
Lokhandwala & Associates] who valued the premises and that the
Valuation Report in the paragraph titled "VALUATION OF OWNER
OCCUPIED PORTION" clearly mentions that the owner (the Plaintiff)
occupied one garage, portion of the built up area of the 5th floor (6533
sq.ft.) and the 6th floor built up area (928 sq.ft.).
54. The other circumstances to substantiate the possession of
the Plaintiff, it is stated in the plaint, that the electricity meter of these
premises stand in the name of the Plaintiff and various tenants of the
building have also filed affidavits (Exhibits Y-1 to Y-16 to the plaint)
stating that Faisal Essa was in possession of the premises described
hereinabove till 6th May 2013.
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55. On reading the plaint, at least prima facie, it is clear that the
Plaintiff has approached this Court with a specific case that the
Defendants, in connivance with each other, forcibly entered into (i) Flat
No. 21 [on the 5th floor]; (ii) the Ground Floor Premises [next to Flat
No.1]; (iii) the Sixth Floor Premises [adjacent to the terrace]; and the
Parking Garage [of 225 sq.ft.] after 6th May, 2013 and have fabricated
the Tenancy Agreements as well as the rents receipts to somehow
legitimize their illegal occupation and possession of these premises. What
is important to note is that nowhere in the plaint, has the Plaintiff come
with the case that Faisal Essa had no authority to create tenancies in
respect of any premises in the building called Al-Sabah Court because his
authority came to an end on the death of Sheikh Saad or the death of
Sheikh Abdullah.
56. On the basis of these pleadings, I shall now examine whether
the Plaintiff has made out a prima facie case, as to whether the Tenancy
Agreements entered into by Faisal Essa in favour of Defendant Nos. 1, 2
and 3 are forged and fabricated. If prima facie, I come to the conclusion
that this is in fact the case, then Mr. Jagtiani would be fully justified in
contending that this is a fit case for not only appointing the Court
Receiver but also directing the Defendants to pay compensation on
account of their illegal occupation and possession of (i) Flat No. 21 on the
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5th floor [occupied by Defendant No.1]; (ii) the Ground Floor Premises
next to Flat No.1 [occupied by Defendant No.2]; (iii) the Sixth Floor
Premises adjacent to the terrace [occupied by Defendant No.3]; and the
Parking Garage of 225 sq.ft. [in possession of Defendant No.1].
57. Having said this, I shall now first examine whether the
Tenancy Agreement entered into with Defendant No.2 is forged and
fabricated. The premises of which Defendant No.2 is in possession, are
the Ground Floor Premises next to Flat No.1 [admeasuring
approximately 270 sq.ft]. The Tenancy Agreement entered into by Faisal
Essa with Defendant No.2 is dated 31st January 2013. To refute the case
of the Plaintiff, Defendant No.2 has filed three Affidavits-in-Reply dated
24th March 2014, 25th July 2014, and 22nd June 2022 respectively. In all
these Affidavits, Defendant No. 2 has set out his defence in great detail,
especially as to manner in which the Tenancy Agreement dated 31st
January 2013 came to be executed between Faisal Essa and Defendant
No.2. It is specifically stated by Defendant No.2 [in his Affidavit dated
25th July 2014] that he is an estate broker who came into contact with
Faisal Essa and Defendant No.1. Since he was in need of a small office for
his business in South Mumbai, Faisal Essa offered him the Ground Floor
Premises and put him in possession thereof on 1st August 2012. Faisal
Essa also promised that he would execute and register a Tenancy
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Agreement at a later date. In the said Affidavits, Defendant No. 2 has
specifically stated that on or about 30th January 2013, Faisal Essa's son
Basar, called him and Defendant No.3 to his residence and requested
them to sign the original Tenancy Agreements already prepared on the
same/identical terms as that of other Tenancy Agreements executed by
Faisal Essa. It is thereafter stated that at this time, Defendant No.2
signed and handed over a cheque of Rs.9,000/- on account of advance
payment of rent upto 31st December 2013. It is thereafter stated that on
the next date i.e. 31st January 2013, the said Basar once again called
Defendant No.2 to his residence when he was given the said Tenancy
Agreement which was signed by Faisal Essa along with the rent receipt
for payment of advance rent. It is specifically stated in the Affidavit that
when Basar handed over the signed Tenancy Agreement to Defendant
No.2, the said Basar informed Defendant No.2 that the said Tenancy
Agreement has been signed and executed by Faisal Essa in hospital
before a Notary Mr. M. N. Naqvi. This is the specific case with which
Defendant No.2 has approached this Court. This case was put forward by
Defendant No.2 as far back as on 25th July 2014. Despite this, there is no
response to this clear case of Defendant No.2 by the Plaintiff till date. The
Plaintiff has even failed to so much as deny the aforesaid facts by filing an
Affidavit-in-Rejoinder. All these facts have gone uncontroverted.
Pertinently, Faisal Essa passed away in the year 2016 and was very much
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alive at the time of filing of the above Suit as well as on 25th July 2014,
when the above Affidavit was filed. For 8 years, the Plaintiff has chosen
not to file any Affidavit-in-Rejoinder and neither has any Affidavit been
filed by Faisal Essa controverting these facts.
58. Despite this, the case of Defendant No.2 does not stop here.
It is the case of Defendant No.2 that Defendant No.2 was put in
possession of the Ground Floor Premises by Faisal Essa in August 2012
and thereafter a Tenancy Agreement dated 31st January 2013 was
executed between Defendant No.2 and Faisal Essa. The Tenancy
Agreement dated 31st January 2013 entered into with Defendant No.2 by
Faisal Essa is produced by Defendant No.2 in its reply dated 22nd June
2022. A perusal of the execution page of the said Tenancy Agreement
discloses that the same has been signed by Faisal Essa and Defendant
No.2 who have also affixed their respective photographs thereon. This
page also bears the stamp and signature of a Notary M. N. Naqvi and the
signature and stamp of an advocate of this Court, Mutavalli G. M. along
with the words "IDENTIFIED BY ME". The stamp of Mr. Naqvi as well as
the stamp of Mr. Mutavalli G. M. on the Tenancy Agreement executed
with Defendant No.2 is of some importance because the Plaintiff has
herself relied upon 16 Affidavits filed by the Tenants of the building
[Exhibits Y-1 to Y-16 of the plaint] and which the Plaintiff says are
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genuine affidavits. A perusal of the signature pages of these affidavits
discloses that 14 out the 16 affidavits [Exhibits Y-1 to Y-13 & Y-16]
bear the stamp and signature of the Notary M. N. Naqvi and the signature
and stamp of an advocate of this Court, Mutavalli G. M. along with the
words "IDENTIFIED BY ME". Apart from these affidavits, [which are
annexed at Exhibits Y-1 to Y-13 & Y-16 of the plaint], during the course
of the hearing, Defendant No.2 also tendered across the bar a deed of
retirement of trustees dated 13th July 2011 under which Faisal Essa was
confirmed as one of the surviving trustees of Helal Bin Fajhan Trust. To
this deed of retirement, a Power of Attorney dated 8th June 2011 given by
one Mahed Bin Helal Bin Fajhan to Faisal Essa was also annexed.
Perusal of this Power of Attorney also discloses that this document also
bears the Notarial stamp of M. N. Naqvi. In my opinion, at least prima
facie, it is not a mere co-incidence that 14 out of the 16 affidavits executed
by the Tenants in August 2013 [annexed at Exhibits Y-1 to Y-13 & Y-
16] on the one hand and the Tenancy Agreement [dated 31st January
2013] entered into with Defendant No.2 on the other, bear (i) the
signature and Notarial stamp of M. N. Naqvi and (ii) the signature and
stamp of an advocate of this Court, Mutavalli G. M. along with the words
"IDENTIFIED BY ME". When one looks at these documents together,
prima facie, it appears that far from making out a case of forgery, the
Tenancy Agreement dated 31st January 2013 in fact emanated from Faisal
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Essa himself.
59. When faced with these facts, Mr. Jagtiani, the learned senior
Counsel appearing on behalf of the Plaintiff, sought to contend that the
stamps of Mr. Naqvi and Mr. Mutavalli on the Tenancy Agreement dated
31st January 2013 were forged and fabricated by Defendant No.2. I find
this argument to be one of desperation. Firstly, no such case is pleaded
by the Plaintiff, either in the plaint, or by filing any Affidavit-in-Rejoinder
to the Affidavits filed by Defendant No.2. Secondly, and more
importantly, Defendant No.2 had annexed the said Tenancy Agreement
as Exhibit "A" to his RAD Suit No. 606 of 2013 before the Hon'ble Small
Causes Court at Mumbai seeking inter-alia a declaration of his tenancy
rights in respect of the Ground Floor Premises. The plaint [in the
aforesaid Suit] was affirmed on 1st April 2013 and the aforesaid Suit was
filed on 3rd April 2013, which is well before any of the Affidavits [Exhibits
Y-1 to Y-16] were executed by the Tenants. In fact, the Affidavits annexed
at Exhibits Y-1 to Y-13 & Y-16 were executed only sometime in or
about August 2013 and were brought to Defendant No. 2's knowledge
only after being served with the Plaint in this Suit [which itself was filed
only in December 2013]. It is thus inconceivable that Defendant No.2
would have known that the Plaintiff would firstly file the above Suit [in
the future] and in such Suit, would rely upon the Affidavits of the Tenants
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and further would get such Affidavits Notarised by Mr. Naqvi and
identified by Mr. Mutavalli. Mr. Ardeshir was correct in his submission
when he submitted that there was no occasion for Defendant No.2 to
forge the stamp of Mr. Naqvi or Mr. Mutavalli on the said Tenancy
Agreement, either in January 2013 [when the Tenancy Agreement was
executed] or in April 2013 when the said Tenancy Agreement was
produced before the Hon'ble Small Causes Court at Mumbai [as Exhibit
"A" to RAD Suit No. 606 of 2013]. It was only after December 2013 that
Defendant No.2 learnt that the Plaintiff has procured Affidavits from the
Tenants of the said building bearing the stamp of Mr. M. N. Naqvi and
Mr. Mutavalli G. M. The Affidavits relied upon by the Plaintiff [annexed
at Exhibits Exhibits Y-1 to Y-13 & Y-16 to the Plaint] and which have
the same stamp and signature of the Notary M. N. Naqvi and the
signature and stamp of an advocate of this Court, Mutavalli G. M. along
with the words "IDENTIFIED BY ME", were not even in existence at the
time when the Tenancy Agreement dated 31st January 2013 was executed
by Faisal Essa in favour of Defendant No.2. The facts mentioned above
in fact prima facie establish that Faisal Essa used the services of the
advocates Mr. Naqvi & Mr. Mutalvalli regularly. The Tenancy Agreement
executed in favour of Defendant No.2 also has the signature and Notarial
stamp of Mr. Naqvi who is a notary frequently used by Faisal Essa. I say
this because 14 out of the 16 Affidavits executed by the Tenants [Exhibits
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Y-1 to Y-13 & Y-16 to the plaint] and relied upon by the Plaintiff, also
have the Notarial stamp of Mr. Naqvi. Admittedly, these affidavits were
prepared by Faisal Essa's attorneys and Notarised by Mr. Naqvi.
Similarly, 14 out of the 16 Affidavits of the Tenants [Exhibits Y-1 to Y-
13 & Y-16] also have the signature and stamp of Mr. Mutavalli. All this
material, at least prima facie, would show that the Tenancy Agreement
dated 31st January 2013 entered into by Faisal Essa with Defendant No.2
is not forged and fabricated. I say this because prima facie it appears that
the said Tenancy Agreement emanated from Faisal Essa himself.
60. This does not stop here. I find considerable force in the
argument of Mr. Ardeshir that the Tenancy Agreement dated 31st January
2013 is a genuine document as the same is also corroborated by
Defendant No. 2's banks statements. At clause 3 of the Tenancy
Agreement, Faisal Essa and Defendant No. 2 [being the parties thereto]
recorded that Defendant No.2 had paid a sum of Rs. 9,000/- to Faisal
Essa by a post-dated cheque No.098983 dated 1st February 2013 drawn
on Axis Bank, Andheri (West) Branch, on account of advance rent for the
period of 12 months from January 2013 to December 2013. Clause 3 of
the Tenancy Agreement is reads thus:
"3. The landlord has created tenancy of the tenanted premises
and confirm having issued separate rent receipt for standard
rent and permitted increase with effect from 1.8.2012 to the
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name of New Tenant. The Landlord confirm that New Tenant
has paid Rs.9,000/- by post dated cheque No. 098983 dated
01.02.2013 drawn on Axis Bank, Andheri (West) Branch on
account of advance rent of the tenanted premises for
subsequent period of 12 months from January, 2013 to
December, 2013 (both inclusive)."
(emphasis supplied)
61. Defendant No.2 has produced his bank statements, which
shows that cheque No. 098983 dated 1st February 2013 is encashed by
Faisal Essa on 2nd February 2013. It is an admitted position that
Defendant No.2 had no prior relationship with the Plaintiff or Faisal Essa
and therefore had no occasion to pay Faisal Essa any money other than
under the said Tenancy Agreement. Faisal Essa consequently had no
occasion to accept any money from Defendant No.2, except towards rent
under the said Tenancy Agreement. This, to my mind, further
corroborates the submission of Defendant No.2 that prima facie the
Tenancy Agreement executed in favour of Defendant No.2 by Faisal Essa
is a genuine document which was in fact acted upon by Faisal Essa who
accepted the consideration mentioned therein [of Rs.9,000/-]. There is
no explanation coming forth from the Plaintiff either in the pleadings or
during the course of arguments, as to why Faisal Essa encashed the
cheque of Rs.9,000/- from Defendant No.2 in February 2013, when
Defendant No.2, according to the Plaintiff, is a rank trespasser who
trespassed into the Ground Floor Premises only after 6th May 2013.
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Admittedly, there is no other transaction between the Plaintiff/Faisal
Essa and Defendant No.2. There is no conceivable reason as to why
Defendant No.2 would pay the Plaintiff/Faisal Essa Rs.9,000/- by
cheque and which was encashed by Faisal Essa on 2nd February 2013. All
these facts have been specifically stated by Defendant No.2 at paragraph
21 of its reply dated 22nd June 2022 and not controverted by Plaintiff.
62. Even as far as the contention of the Plaintiff that the rent
receipt issued to Defendant No.2 [in relation to the Ground Floor
Premises] is forged and fabricated, I find that no such case is made out.
It is the case of the Plaintiff that Defendant No.2, acting in collusion with
Defendant Nos. 1 and 3, took illegal possession of the Ground Floor
Premises immediately after 6th May 2013 when Faisal Essa left for
Kuwait. It is also the case of the Plaintiff that all the blank receipts,
signature stamps, and seals etc were in the Ground Floor Premises and
the Sixth Floor Premises which were in possession of Faisal Essa till he
left for Kuwait on 6th May 2013. In contrast, it is the case of Defendant
No.2 that he was put in possession of the Ground Floor Premises by
Faisal Essa on 1st August 2012. To protect his tenancy rights, Defendant
No.2 filed RAD Suit No. 606 of 2013 before the Hon'ble Small Causes
Court at Mumbai in April 2013. Annexed to this Suit was the rent receipt
and the Tenancy Agreement issued/executed by Faisal Essa in Defendant
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No. 2's favour. This means that in April 2013 Defendant No. 2 had
produced his Tenancy Agreement and the rent receipt in relation thereto
before the Hon'ble Small Causes Court at Mumbai. However, it is the case
of the Plaintiff that Defendant No.2 only entered/trespassed upon the
Ground Floor Premises on or after 6th May 2013 [i.e. after Faisal Essa left
India for Kuwait]. It is the pleaded case of the Plaintiff that immediately
after 6th May 2013, Defendant No.2 took illegal and forcible possession of
the Ground Floor Premises, and in collusion with Defendant No.1, also
took possession of the rent books, relevant bills, seals, signature stamps
and all other documents pertaining to Al-Sabah Court. Therefore,
according to the pleaded case of the Plaintiff, the blank rent receipts and
all other documents came in possession of Defendant No.2, along with
Defendant Nos. 1 and 3, sometime after 6th May 2013. This case of the
Plaintiff falls to the ground when one sees that Defendant No.2 had
already annexed the rent receipt issued to him by Faisal Essa in his RAD
Suit No.606 of 2013 filed in the Small Causes Court on 3rd April 2013. If
according to the Plaintiff, Defendant No.2 only got access to the blank
rent receipts and documents after 6th May 2013, and thereafter forged the
same, Defendant No.2 could never have annexed the rent receipt issued
to him to his Suit filed in the Small Causes Court being RAD Suit No. 606
of 2013, in April 2013. There is absolutely no explanation by the Plaintiff
either in pleadings or in arguments as to how Defendant No.2 came into
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possession of the rent receipt issued to him, prior to 6th May 2013. Prima
facie, therefore, the case pleaded by the Plaintiff, at the interim stage does
not inspire confidence. At the interim stage, I find that Defendant No.2
has in fact been able to prima facie establish that the Tenancy Agreement
dated 31st January 2013 executed by Faisal Essa in favour of Defendant
No.2 is not a forged and fabricated document and that in fact Defendant
No.2 was put in possession of the Ground Floor Premises by Faisal Essa
acting as the agent of the Plaintiff. I must again mention that it is not the
case of the Plaintiff that Faisal Essa never had the authority to enter into
any Tenancy Agreement for and on behalf of the Plaintiff/owners of the
building called Al-Sabah Court. The Plaintiff has come to Court with a
specific case that the Tenancy Agreements executed in favour of the
Defendants are forged and fabricated. In these circumstances, I find that
no case is made out for appointment of the Court Receiver in relation to
the Ground Floor Premises or for any direction against Defendant No.2
to pay any mesne profit to the Plaintiff.
63. Having dealt with the issue of forgery and fabrication of the
Tenancy Agreement entered into by Faisal Essa with Defendant No.2, I
shall now deal with the issue of forgery and fabrication of the Tenancy
Agreement dated 31st January 2013 entered into by Faisal Essa with
Defendant No.3. Defendant No.3 claims to be a tenant of the Sixth Floor
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Premises [adjacent to the terrace] admeasuring approximately 300 sq.ft.
by virtue of a Tenancy Agreement dated 31st January 2013. Defendant
No. 3 has filed an Affidavit-in-Reply dated 9th March 2015. In this
affidavit, [paragraph 32 thereof] Defendant No.3 has specifically stated
that Faisal Essa inducted Defendant No.3 in Sixth Floor Premises
[adjacent to the terrace] voluntarily and accepted the rent in relation
thereto. This statement of Defendant No.3, like the statements made by
Defendant No.2, is not controverted by the Plaintiff by filing any
Affidavit-in-Rejoinder. This apart, I find that even the Tenancy
Agreement executed by Faisal Essa in favour of Defendant No.3 is
identical to the Agreement executed by Faisal Essa with Defendant No.2.
In fact, both the Agreements were executed on the same day, namely 31st
January 2013. Even the execution page of the Tenancy Agreement with
Defendant No. 3 bears the signature and stamp of the Notary M. N. Naqvi
and the signature and stamp of an advocate of this Court, Mutavalli G.
M. along with the words "IDENTIFIED BY ME". Like in the case of
Defendant No.2, this would prima facie show that even the Tenancy
Agreement executed by Faisal Essa with Defendant No.3 actually
emanated from Faisal Essa. I say this because as mentioned earlier, Mr.
Naqvi was a notary who was regularly used by Faisal Essa, and like
Defendant No.2, Defendant No.3 had no past dealings with Faisal Essa.
In these circumstances, for the reasons already recorded as to why I
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prima facie found that the Tenancy Agreement entered into with
Defendant No.2 is not forged and fabricated, I prima facie find that the
Tenancy Agreement entered into with Defendant No.3 is also not forged
and fabricated. I must mention that even Defendant No.3 had filed RAD
Suit No. 607 of 2013 in the Small Causes Court at Mumbai in April 2013.
In fact, the case of Defendant Nos. 2 and 3 are almost identical. I,
therefore, find that no case is made out for the appointment of the Court
Receiver in relation to Sixth Floor Premises [adjacent to the terrace]
which is in occupation and possession of Defendant No.3, and neither any
case is made out for directing Defendant No.3 to pay any mesne profit to
the Plaintiff in relation to Sixth Floor Premises.
64. This now leaves me to consider whether the Tenancy
Agreement dated 30th October 2012 entered into by Faisal Essa with
Defendant No.1 is a forged and fabricated document. The case of
Defendant No.1 is slightly different from that of Defendant Nos. 2 and 3
in as much as the Tenancy Agreement entered into with Defendant No.1
is not Notarised, like the Tenancy Agreements entered into with
Defendant Nos. 2 and 3. Defendant No. 1 is in possession and occupation
of Flat No.21 on the 5th floor of the building called Al-Sabah Court by
virtue of the Tenancy Agreement dated 30th October 2012. Defendant
No.1 has filed four affidavits in this Court dated 25th July 2014, 29th July
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2015, 19th August 2017, and 17th June 2022 respectively. Certain
documents were also tendered during the course of hearing. The case of
the 1st Defendant is set out in great detail in these affidavits. To put it in a
nutshell, in these affidavits, the 1st Defendant has stated that he entered
into a Tenancy Agreement dated 24th October 2008 with Faisal Essa in
respect of Flat No.3 on the 1st floor of the building called Al-Sabah Court.
The said Agreement was executed by Faisal Essa as the landlord in which
it was asserted that Sheikh Saad was the owner of the said premises. The
rent receipts issued by Faisal Essa pertaining to these premises as well as
the other rent receipts issued by Faisal Essa in respect of the other
premises in the said building bear the signature stamp of Faisal Essa
which indicates that Faisal Essa was the Constituted Attorney of Sheikh
Saad. It is thereafter stated that the brother of Defendant No.1, namely,
Mr. Sandeep Punamiya, also entered into a Tenancy Agreement dated 1st
April 2009 in respect of Flat No. 20 on the 5th floor. This Agreement is
similar to the Tenancy Agreement dated 24th October 2008 entered into
with Defendant No.1 in respect of Flat No.3. Both the aforesaid
Agreements were executed by Faisal Essa after the death of Sheikh Saad
and neither of these Agreements have been disputed by the Plaintiff.
Similarly, other persons in the building Al-Sabah Court also acquired
premises after the death of Sheikh Saad under various Tenancy
Agreements which were executed by Faisal Essa on the basis that he was
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the Power of Attorney Holder of Sheikh Saad and there is no dispute
raised by the Plaintiff in relation to these Agreements as well. Once such
Agreement is a Tenancy Agreement dated 16th February 2010 executed
between Faisal Essa and one Mr. Pradeep Bansal for Flat No.13 on the
2nd floor of the building called Al-Sabah Court.
65. It is thereafter stated that since Defendant No.1 required
further premises, Faisal Essa pointed out that Flat No.21 [on the 5th floor]
was lying locked for many years and could be given on a tenancy basis to
Defendant No.1 along with a garage admeasuring 225 sq.ft. Since
Defendant No.1 agreed to take the said premises on a tenancy basis,
Defendant No.1 gave two cheques bearing No. 387325 and 385341 both
dated 19th September 2012 to Faisal Essa and which were encashed by
Faisal Essa on 20th September 2012. Thereafter, a Tenancy Agreement
dated 30th October 2012 was executed between Faisal Essa and
Defendant No.1 in relation to Flat No.21. Upon execution of the Tenancy
Agreement, the keys of Flat No.21 were handed over to Defendant No.1.
In the replies filed by Defendant No.1, it is stated that immediately
thereafter, since Faisal Essa started demanding more money, Defendant
No.1 was compelled to file RAN Application No. 47 of 2012 seeking
fixation of standard rent and protection of his tenancy rights in the said
RAN proceedings. The Tenancy Agreement and the rent receipt issued in
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relation to Flat No.21 were also annexed to the RAN Application. Apart
from filing the RAN proceedings, Defendant No.1, on 22nd January 2013,
also filed RAD Suit No.174 of 2013 for declaration of his tenancy rights.
This Suit was finally decreed on 9th May 2013.
66. It is further stated in these affidavits that Defendant No.1
also filed a criminal complaint in the Magistrate's Court regarding some
threats given by Faisal Essa leading to an issuance of an order under
Section 156(3) of the Cr.P.C dated 18th February 2013. Pursuant to this
order, an FIR came to be lodged on 4th March 2013. During the
investigation, a panchnama was prepared on 24th March 2013 by the
authorities which reflects that Defendant No.1 was in possession of Flat
No.21. These proceedings were subsequently closed pursuant to an order
of this Court holding that the disputes were essentially of a civil nature.
67. It is thereafter stated that Faisal Essa himself initiated
criminal action against the Defendants and filed Criminal Writ Petition
No. 2663 of 2013 seeking investigation by the CBI or the CID into the
matter of the properties of the Royal Family of Kuwait, register an FIR,
and submit a report. This Court directed Faisal Essa to approach the
appropriate criminal Court which may consider his request for transfer
of the investigation. Accordingly on 15th January 2014, Faisal Essa filed
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a criminal complaint against Defendant No.1 in which an investigation
was ordered. The investigation was thereafter undertaken by the CID
which was apparently at the request of Faisal Essa. The CID carried out
a detailed investigation and found that there was no case of either forgery
or criminal trespass. The CID, on taking a report from the State Agency,
found that the signature of Faisal Essa on the Tenancy Agreement was
not forged. The CID however filed a chargesheet, both against Faisal
Essa and Defendant No.1 alleging that they had colluded together to cheat
the owner. Defendant No.1 challenged the chargesheet and as against
Defendant No.1 further proceedings and the said chargesheet were stayed
by this Court by order dated 28th July 2015 passed in Criminal
Application No. 726 of 2015. Faisal Essa chose not to challenge the
chargesheet. These facts, as pleaded by Defendant No.1 in its various
affidavits, have not been controverted by the Plaintiff or by Faisal Essa
by filing any Affidavit in the present proceedings.
68. Be that as it may, I shall now examine whether the Plaintiff
has made out a strong prima facie case that the Tenancy Agreement
dated 30th October 2012 entered into by Faisal Essa with Defendant No.1
[in relation to Flat No.21] is forged and fabricated. To substantiate the
forgery, the Plaintiff has relied upon a report of a private handwriting
expert produced at Exhibit "G" to the plaint. The plaint states that the
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handwriting expert compared the signature of Faisal Essa on the
Tenancy Agreement with the actual signature of Mr. Faisal Essa Alyousuf
Al-Essa as can be seen from the stamp of the signature of Faisal Essa and
came to the conclusion that the signature of Faisal Essa therein is forged
and fabricated and does not even closely resemble his actual signature.
However, it has been pointed to me, and which is not disputed by the
Plaintiff, is that the handwriting expert did not have the original Tenancy
Agreement nor was any original signature specimen of Faisal Essa
provided to the handwriting expert. There is nothing on record to show
that the Plaintiff or Faisal Essa made any effort to give the handwriting
expert access to the original signature specimens of Faisal Essa. It
appears that the handwriting expert has prepared the said report [Exhibit
G to the plaint] based on comparing the signature of Faisal Essa on a
photocopy of the Tenancy Agreement and other writing/copies of Faisal
Essa's signature. This being the factual position, it would be highly
dangerous to merely rely upon this report to come to the conclusion that
the Tenancy Agreement dated 30th October 2012 entered into with
Defendant No.1 is a forged and fabricated document.
69. In contrast to this, Defendant No.1 has produced a report of
the hand writing expert wherein he has compared the actual signatures
and initials of Faisal Essa on the original Tenancy Agreement dated 30th
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October 2012 as against the undisputed original Tenancy Agreement
dated 24th October 2008 also entered into by Faisal Essa with Defendant
No.1 in relation to Flat No.3 on the 1st floor. The said report inter alia
states that the signature of Faisal Essa on the Tenancy Agreement dated
30th October 2012 is genuine.
70. Apart from the report of the handwriting expert produced by
Defendant No.1, on a criminal complaint filed by Faisal Essa against
Defendant No.1 [in which an investigation was ordered], during
investigation, the CID provided several documents including the Tenancy
Agreement dated 30th October 2012 to the Additional Chief State
Examiner of Documents, CID, Maharashtra State, Mumbai. Various
documents were furnished to the expert. Sample signatures of Faisal
Essa signed before the police authorities, were also taken and those were
also forwarded to the expert. On the basis of these documents, the State
Expert prepared his report. Relying upon this report, the CID in its final
report/chargesheet inter alia came to the conclusion that though Faisal
Essa had denied his signature on the Tenancy Agreement, during the
course of investigation, it was disclosed that there was no uniformity in
his signature. He was changing the manner and the style of the signature
not only from one document to the other but has signed differently on
different pages of the same document. The investigating authority came
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to the conclusion that the admitted documents of Faisal Essa had
different signatures. The investigating authority therefore came to the
conclusion that the report of the Additional Chief State Examiner of
Documents has put an end to the allegations of forgery. It is on this basis
that the investigating authority inter alia came to the conclusion that the
report of the handwriting expert confirmed that Faisal Essa had signed
the Agreements deliberately in such a manner as would give the
impression to others that the signatures had been forged. The
investigating authority came to the conclusion that this was done in case
the matter takes the different turn, and in such an event, Faisal Essa
would have the option to deny his signatures. However, the report of the
handwriting expert put an end to this malafide intention, was the
conclusion of the investigating authority.
71. I must mention that it was pointed to me that despite the
investigating authority coming to the conclusion that no case for forgery
was made out, a charge of forgery was framed by the Court against
Defendant No.1 under Sections 467 and 468 of the IPC. However, this
charge being contrary to the findings in the chargesheet, Defendant No. 1
challenged the same in this Court expressly raising the contention that
the framing of the charge of forgery was clearly contrary to the findings
in the chargesheet and the State Examiner's Report. This Court by its
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order dated 28th July 2015 passed in Criminal Application No. 726 of 2015
stayed the chargesheet as against Defendant No.1. Looking at these facts,
at least at the interim stage, I am of the opinion that the Plaintiff has been
unable to prima facie establish that the signature of Faisal Essa on the
Tenancy Agreement dated 30th October 2012 is forged and fabricated.
72. The other contention raised by the Plaintiff [in the plaint] to
support the case of forgery was that the Tenancy Agreement had been
purportedly signed by Faisal Essa as a Power of Attorney Holder of
Sheikh Saad who died in 2008. The plaint proceeds on the basis that the
Tenancy Agreement dated 30th October 2012 was executed by Faisal Essa
as the Constituted Attorney of Sheikh Saad. However, this is factually
incorrect. A perusal of the Tenancy Agreement discloses that the same is
executed with Faisal Essa as the Constituted Attorney of Sheikh Abdullah
and not as the Constituted Attorney of Sheikh Saad. From the pleadings,
it is clear that even the Plaintiff is confused between the names of Sheikh
Abdullah and Sheikh Saad and this becomes apparent from paragraph
33(i) of the plaint. Be that as it may, the contention of the Plaintiff, in
essence, is that Faisal Essa acted as the Constituted Attorney of a dead
person which not possible and hence this would be a factor to show that
the Tenancy Agreement dated 30th October 2012 is a forged and
fabricated document. I am of the opinion that firstly, this cannot be a
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factor which is an indicator of fabrication of the document. It is one thing
to say that the document has not been signed by Faisal Essa [and which
is the express case of the Plaintiff], and it is wholly another to say that he
had no authority to sign the document because the person who had given
the Power of Attorney had expired and hence the Power of Attorney came
to an end on the death of the person giving the Power. What is also
important to note is that the Plaintiff does not dispute that Faisal Essa
did in fact have the authority to create tenancies in the building even after
the death of Sheikh Abdullah and later Sheikh Saad. After the death of
Sheikh Saad, the Plaintiff continued the authority of Faisal Essa to take
care of the building called Al-Sabah Court. This is expressly admitted in
paragraph 6 of the plaint. In fact, during arguments, a letter addressed
by the Plaintiff to Faisal Essa [and which was annexed as an Exhibit to
Criminal Writ Petition 2662 of 2013 filed by Faisal Essa], was produced
wherein the Plaintiff requested Faisal Essa to continue administering
property in Mumbai and thanked him for all the help and cooperation
rendered. Subsequently, the Plaintiff formalized the authority of Faisal
Essa by executing a Power of Attorney in favour of Faisal Essa in respect
of the building Al-Sabah Court. These facts clearly reveal that even after
the death of Sheikh Abdullah and thereafter Sheikh Saad, Faisal Essa
continued to act in the name of Sheikh Saad, executed various
documents, created tenancies, and even filed legal proceedings in the
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name of Sheikh Saad which have not been disputed. This would, at least
prima facie, show that the Plaintiff had no problem on Faisal Essa acting
in the name of Sheikh Saad even after his death. The fact that Faisal Essa
continued to act in the name of Sheikh Saad [even after his death on 13th
May 2008] and which was accepted by the Plaintiff, is apparent from:-
(a) The Tenancy Agreement dated 24th October 2008
executed by Faisal Essa in favour of Defendant No. 1 for
Flat No.3.
(b) The Tenancy Agreement dated 1st April 2009 executed by
Faisal Essa in favour of Sandeep Punamiya [the brother
of Defendant No.1] for Flat No. 20.
(c) The Tenancy Agreement dated 16th February 2010
executed by Faisal Essa in favour of one Pradeepkumar
Bansal for Flat No. 13.
(d) The undisputed rent receipts issued to various tenants by
Faisal Essa as the Constituted Attorney of Sheikh Saad
for period after 13th May 2008 [the date Sheikh Saad
passed away].
(e) A suit filed in the year 2010 by Faisal Essa in the name of
Sheikh Saad even after his death in which, a settlement
was arrived at, and the Plaintiff has accepted the same.
(f) Even after the filing of the present suit, correspondence
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addressed to Defendant No. 1 and the other Tenants of
Al-Sabah Court in the name of Sheikh Saad.
73. Looking at the conduct of the Plaintiff as set out above, at
least prima facie, it appears that Faisal Essa had the authority of the
owners of the building from time to time to create tenancies in favour of
different people. Acting upon the same, Faisal Essa, from time to time,
in fact created such tenancies. It is also an admitted position that the
owners of the building Al-Sabah Court never came to India, and it was
Faisal Essa alone who created the tenancies in the building and was
dealing with the tenants.
74. Dr. Saraf is right in his contention when the submits that so
far as the occupants of the building and other third parties were
concerned, Faisal Essa, for all purposes, was the person who was
representing the owners and had full authority to create tenancies,
received rents, and do all dealings with the tenants and it is on this basis
that everyone has proceeded. Dr. Saraf is correct that if the Court is
satisfied, that Faisal Essa had the authority to represent the owners and
create tenancies, then whether the Tenancy Agreement was signed by
Faisal Essa as the Constituted Attorney of (i) Sheikh Abdullah; or (ii)
Sheikh Saad; or (iii) the current owners of the building, really becomes
irrelevant. This is because it is at least prima facie established that
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whoever was the owner, he/she/they had authorised Faisal Essa to enter
into and create tenancies, receive rents etc., and which authority is not
disputed. Faisal Essa continued to represent to the world at large that he
was authorised by the landlords to create tenancies etc and which
representation even the Plaintiff does not deny till date. So long as Faisal
Essa had the authority of the existing owners, the mere fact that the
predecessor in title of the existing owners is mentioned in the Tenancy
Agreement can prima facie neither render the Tenancy Agreement void
or illegal nor is it any indication of forgery or fabrication.
75. Another important factor that militates against the case of
the Plaintiff is that it is the case of the Plaintiff that the rent receipts relied
upon by Defendant No.1 in respect of Flat No. 21 are forged and
fabricated. It is the express case of the Plaintiff that the blank rent
receipts along with the seals and the signature stamps were kept in the
office of the Plaintiff, which according to the Plaintiff, was run from the
Ground Floor Premises and the Sixth Floor Premises. These premises
were in the possession of the Plaintiff right up to 6th May 2013 [when
Faisal Essa left for Kuwait]. It is the case of the Plaintiff that sometime
after 6th May 2013, the servants/staff of the Plaintiff/Faisal Essa gave
Defendant No.1 access to the offices of the Plaintiff with all the blank
receipts and seals etc. Thus, according to the Plaintiff, Defendant No.1
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got access to the blank receipt books, seals, signature stamps etc., only
after 6th May 2013, and misused the same to create the forged and
fabricated rent receipts in relation to Flat No. 21. In fact, in paragraph
32 of the plaint, it is stated that the rent receipts relied upon by Defendant
No.1 are from the stolen blank rent bill book. According to the Plaintiff,
as to why the rent receipts are fabricated is set out more particularly in
paragraph 34 of the plaint. To put it in a nutshell, it is the case of the
Plaintiff that the rent receipts are fabricated because:-
(i) There is no bill number mentioned on the purported forged
rent receipt.
(ii) The same is not signed by Faisal Essa.
(iii) No serial number is mentioned on the forged rent receipt.
(iv) No receipt folio number is mentioned in the forged rent receipt.
(v) A seal of the signature of Faisal Essa is affixed on the forged
rent receipt, which seal was stolen by the Defendants from the
office premises on the ground floor.
(vi) The date on the subject rent receipt is handwritten as against
the inserted by a stamp on the rent receipt annexed to the
affidavits of the other tenants.
76. From the plaint, therefore it is clear that according to the
Plaintiff, Faisal Essa was in possession of the office of the Plaintiff run
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from the Ground Floor Premises and the Sixth Floor Premises and which
housed the blank rent receipts along with the seals and the signature
stamps, until 6th May 2013, when he left for Kuwait. It is the specific case
of the Plaintiff that the Defendants, with the help of the staff of Faisal
Essa, gained access to the Ground Floor Premises and the Sixth Floor
Premises and stole the blank rent bill book, seals, signature stamps etc.,
immediately after 6th May 2013 and thereafter hatched the criminal
conspiracy to usurp the valuable property of the Plaintiff. At least prima
facie, I find this case to be incorrect. I say this because on 12th December
2012, [much prior to 6th May 2013] Defendant No.1 filed before the Small
Causes Court at Mumbai RAN Application No. 47 of 2012 for fixation of
standard rent. To this Application, the disputed rent receipt dated 30th
October 2012 is annexed at Exhibit B. If in fact, the case of the Plaintiff
is to be believed that Defendant No.1 got access to the blank receipt books,
seals, signature stamps etc., only immediately after 6th May 2013, I fail to
understand how Defendant No.1 could have produced the rent receipts in
judicial proceedings on 12th December 2012. It does not stop here. On
12th February 2013, Defendant No.1 filed a complaint against Faisal Essa
before the Additional Chief Metropolitan Magistrate. To this complaint
also the subject rent receipt was annexed. Apart from this, on 22nd
January 2013, Defendant No.1 also filed RAD Suit No. 174 of 2013 before
the Small Causes Court for a declaration of his tenancy rights to which
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the subject rent receipt is again annexed. When one looks at these facts,
the entire case of the Plaintiff that the blank receipt books, seals,
signature stamps etc. were stolen by Defendant No.1 in connivance with
Defendant Nos. 2 and 3 immediately after 6th May 2013 and were
thereafter fabricated, clearly falls to the ground. Once it is demonstrated
that the rent receipts were in existence much prior to 6th May 2013, the
entire case of the Plaintiff that the blank receipt books, seals, signature
stamps etc. was stolen after Faisal Essa's departure for Kuwait on 6th May
2013 and that subject rent receipts are created from the stolen rent
receipts book to somehow legitimize Defendant No.1's possession of Flat
No.21 wholly collapses. This is yet another factor which would militate
against the case of the Plaintiff that the Tenancy Agreement dated 30th
October 2012 is a forged and fabricated document. I must mention that
Defendant No.1 has categorically stated in its pleadings that the rent
receipt was issued for Flat No. 21 against a cheque of Rs.50,000 towards
rent and which was duly deposited by Faisal Essa. In fact, this is also
recorded in the supplementary statement of Shri Sayed Mohammad
Qadri dated 21st January 2013 recorded before the CID, Mumbai. There
is no Affidavit-in-Rejoinder filed by the Plaintiff controverting these
facts.
77. I would fail in my duty to mention that Mr. Jagtiani, the
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learned senior counsel appearing on behalf of the Plaintiff, when faced
with the incriminating material of the investigating authority including
the statements of various persons recorded by the CID, in the course of
arguments raised an objection that the chargesheet and the statements
made to the police cannot be looked at by this Court under Section 162 of
the Cr.P.C. To put in a nutshell, it was contended that statements made
to the police officer in the course of an investigation, cannot be relied
upon in the present proceedings. I am afraid this argument proceeds
completely on a wrong premise. Section 162 falls under chapter XII of the
Cr.P.C which relates to information to the police and their powers to
investigate. Section 162 inter-alia provides that no statement made by
any person to a police officer in the course of an investigation under
chapter XII, shall, if reduced to writing, be signed by the person making
it; nor shall any such statement or any record thereof, whether in a police
diary or otherwise, or any part of such statement or record, be used for
any purpose, save as hereinafter provided, at any enquiry or trial in
respect of any offence under investigation at the time when such
statement was made. For the sake of convenience, Section 162 is
reproduced hereunder:-
"162. Statements to police not to be signed: Use of statements in
evidence.--(1) No statement made by any person to a police officer
in the course of an investigation under this Chapter, shall, if reduced
to writing, be signed by the person making it; nor shall any such
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statement or any record thereof, whether in a police diary or
otherwise, or any part of such statement or record, be used for any
purpose, save as hereinafter provided, at any inquiry or trial in
respect of any offence under investigation at the time when such
statement was made:
Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved, may be used by
the accused, and with the permission of the Court, by the
prosecution, to contradict such witness in the manner provided by
Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when
any part of such statement is so used, any part thereof may also be
used in the re-examination of such witness, but for the purpose only
of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement
falling within the provisions of clause (1) of Section 32 of the Indian
Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section
27 of that Act.
Explanation.--An omission to state a fact or circumstance in the
statement referred to in sub-section (1) may amount to contradiction
if the same appears to be significant and otherwise relevant having
regard to the context in which such omission occurs and whether
any omission amounts to a contradiction in the particular context
shall be a question of fact."
78. What Section 162 bars is the use of any statements made
before a police officer in the course of an investigation under chapter XII,
whether recorded in a police diary or otherwise. However, by the express
terms of this Section, this bar is applicable only when such statement is
sought to be used at any enquiry or trial in respect of any offence under
investigation at the time when such statement was made. This is of
course subject to what is provided in Section 162. If the statement made
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before a police officer, in the course of an investigation under chapter XII
is sought to be used in any proceeding other than an enquiry or trial or
even at an enquiry or trial but in respect of an offence other than which
was under investigation at the time when such statement was made, the
bar of Section 162 would not be attracted. This Section has been enacted
for the benefit of the accused and is intended to protect the accused
against the user of statement of witnesses made before the police during
investigation at the trial presumably on the assumption that the said
statements were not made under circumstances inspiring confidence.
Protection against the use of the statement made before the police during
investigation, is, therefore, granted to the accused by stipulating that such
statement shall not be allowed to be used except for the limited purpose
set out in the proviso to the Section, at any enquiry or trial in respect of
the offence which was under investigation at the time when the statement
was made. This protection, and which is given to the accused, can
certainly not bar the Court from looking at the statements made before
the police officer in civil proceedings so long as it is relevant under Indian
Evidence Act. The interpretation of Section 162 which I have taken, is
supported by a decision of the Hon'ble Supreme Court in the case of
Khatri & Ors. vs. State of Bihar [(1981) 2 SCC 493]. In this
decision, it is categorically held that Section 162 is enacted for the benefit
of the accused and the bar created by the Section is a limited one and has
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no application to a civil proceeding or a proceeding under Article 32 or
226 of the Constitution of India. Paragraph 3 of this decision reads thus:
"3. Before we refer to the provisions of Sections 162 and 172 of the
Criminal Procedure Code, it would be convenient to set out briefly a few
relevant provisions of that Code. Section 2 is the definition section and
clause (g) of that section defines "inquiry" to mean "every inquiry, other
than a trial conducted under this Code by a Magistrate or court". Clause
(a) of Section 2 gives the definition of "investigation" and it says that
investigation includes "all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorised by a Magistrate in this
behalf". Section 4 provides:
"4. (1) All offences under the Penal Code, 1860 shall be investigated,
inquired into, tried, and otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same provisions,
but subject to any enactment for the time being in force regulating the
manner or place of investigating, inquiring into, trying or otherwise
dealing with such offences."
It is apparent from this section that the provisions of the Criminal
Procedure Code are applicable where an offence under the Penal Code,
1860 or under any other law is being investigated, inquired into, tried or
otherwise dealt with. Then we come straight to Section 162 which occurs
in Chapter XII dealing with the powers of the police to investigate into
offences. That section, so far as material, reads as under:
"162. (1) No statement made by any person to a police officer in the
course of an investigation under this Chapter, shall, if reduced to writing,
be signed by the person making it; nor shall any such statement or any
record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter
provided, at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved, may be used by the
accused, and with the permission of the court, by the prosecution, to
contradict such witness in the manner provided by Section 145 of the
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Indian Evidence Act, 1872; and when any part of such statement is so
used, any part thereof may also be used in the re-examination of such
witness, but for the purpose only of explaining any matter referred to in
his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement
falling within the provisions of clause (1) of Section 32 of the Indian
Evidence Act, 1872, or to affect the provisions of Section 27 of that Act."
It bars the use of any statement made before a police officer in the
course of an investigation under Chapter XII, whether recorded in a
police diary or otherwise, but, by the express terms of the section,
this bar is applicable only where such statement is sought to be
used "at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made". If the
statement made before a police officer in the course of an
investigation under Chapter XII is sought to be used in any
proceeding other than an inquiry or trial or even at an inquiry or
trial but in respect of an offence other than that which was under
investigation at the time when such statement was made, the bar
of Section 162 would not be attracted. This section has been enacted
for the benefit of the accused, as pointed out by this Court in Tahsildar
Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp 2 SCR 875, 890 : 1959
Cri LJ 1231] it is intended "to protect the accused against the user of
statements of witnesses made before the police during investigation, at
the trial presumably on the assumption that the said statements were
not made under circumstances inspiring confidence". This Court,
in Tahsildar Singh case [AIR 1959 SC 1012 : 1959 Supp 2 SCR 875, 890 :
1959 Cri LJ 1231] approved the following observations of Braund, J.
in Emperor v. Aftab Mohd. Khan [AIR 1940 All 291 : 188 IC 649 : 41 Cri LJ
647] :
"As it seems to us it is to protect accused persons from being
prejudiced by statements made to police officers who by reason of the
fact that an investigation is known to be on foot at the time the statement
is made, may be in a position to influence the maker of it, and, on the
other hand, to protect accused persons from the prejudice at the hands
of persons who in the knowledge that an investigation has already
started, are prepared to tell untruths"
and expressed its agreement with the view taken by the Division Bench
of the Nagpur High Court in Baliram Tikaram Marathe v. Emperor [AIR
1945 Nag 1 : 46 Cri LJ 448 : 218 IC 294] that "the object of the section is
to protect the accused both against overzealous police officers and
untruthful witnesses". Protection against the use of statement made
before the police during investigation is, therefore, granted to the
accused by providing that such statement shall not be allowed to
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be used except for the limited purpose set out in the proviso to the
section, at any inquiry or trial in respect of the offence which was
under investigation at the time when such statement was made.
But, this protection is unnecessary in any proceeding other than an
inquiry or trial in respect of the offence under investigation and
hence the bar created by the section is a limited bar. It has no
application, for example in a civil proceeding or in a proceeding
under Article 32 or 226 of the Constitution and a statement made
before a police officer in the course of investigation can be used as
evidence in such proceeding, provided it is otherwise relevant
under the Indian Evidence Act. There are a number of decisions of
various High Courts which have taken this view and amongst them may
be mentioned the decision of Jaganmohan Reddy, J. in Malakala Surya
Rao v.G. Janakamma [AIR 1964 AP 198 : (1963) 2 Andh WR 485 : (1964) 1
Cri LJ 504] . The present proceeding before us is a writ petition under
Article 32 of the Constitution filed by the petitioners for enforcing their
Fundamental Rights under Article 21 and it is neither an "inquiry" nor a
"trial" in respect of any offence and hence it is difficult to see how Section
162 can be invoked by the State in the present case. The procedure to be
followed in a writ petition under Article 32 of the Constitution is
prescribed in Order XXXV of the Supreme Court Rules, 1966, and sub-
rule (9) of Rule 10 lays down that at the hearing of the rule nisi, if the
court is of the opinion that an opportunity be given to the parties to
establish their respective cases by leading further evidence, the court
may take such evidence or cause such evidence to be taken in such
manner as it may deem fit and proper and obviously the reception of
such evidence will be governed by the provisions of the Indian Evidence
Act. It is obvious, therefore, that even a statement made before, a police
officer during investigation can be produced and used in evidence in a
writ petition under Article 32 provided it is relevant under the Indian
Evidence Act and Section 162 cannot be urged as a bar against its
production or use. The reports submitted by Shri L.V. Singh setting forth
the result of his investigation cannot, in the circumstances, be shut out
from being produced and considered in evidence under Section 162,
even if they refer to any statements made before him and his associates
during investigation, provided they are otherwise relevant under some
provision of the Indian Evidence Act."
(emphasis supplied)
79. In light of this authoritative pronouncement of the Hon'ble
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Supreme Court, the contention of Mr. Jagtiani that this Court cannot look
at the chargesheet or the statements made to the police officers because
of the bar under Section 162 of the Cr.P.C, is wholly misplaced.
80. Having said this, I shall now decide whether the Plaintiff,
prima facie, is able to establish that Faisal Essa was in possession of Flat
No.21 till 6th May 2013 when he left for Kuwait. To substantiate the case
of the Plaintiff that Faisal Essa was in possession of Flat No.21; the
Ground Floor Premises and the Sixth Floor Premises till 6th May 2013,
the Plaintiff has relied upon the documents and the averments more
particularly set out in paragraphs 52 to 61 of the plaint. The first
document relied upon is the visit of Mr. Fahad M. Al-Ajmi to Flat No.21
during March 2013 and the photographs taken by him. A document
styled as an affidavit dated 15th July 2013 executed by Mr. Fahad M. Al-
Ajmi is annexed at Exhibit "V" to the plaint. After going through this
document, I find that the same does not appear to be an affidavit. It is not
executed in India but executed abroad and it is neither notarised nor
signed by before any consulate. More importantly, before the police
authorities, though Mr. Fahad M. Al-Ajmi was listed as a witness, Faisal
Essa made a statement that Mr. Fahad M. Al-Ajmi and even the Plaintiff
herself, should not be called for investigation as they both are not
concerned with the criminal case filed by Faisal Essa against Defendant
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No.1. It is pertinent to note that in the case of criminal trespass filed by
Faisal Essa against Defendant No.1, Mr. Fahad M. Al-Ajmi's statement
was sought to be relied upon before the police authorities. Despite this,
it was stated by Faisal Essa that the Plaintiff and Mr. Al-Ajmi had nothing
to do with the matter. In such circumstances, in my opinion, it would be
dangerous to place any reliance on this document at the interim stage as
the same lacks credence. As far as the photographs taken by Mr. Al-Ajmi
are concerned, they by themselves do not establish possession of Faisal
Essa. Merely because Mr. Al-Ajmi was allowed to visit Flat No.21 and take
photographs, would not establish Faisal Essa's possession, especially
since Defendant No.1 admits that under the terms of the Tenancy
Agreement as well as under the law, at the request of Faisal Essa, he was
allowed to inspect Flat No.21.
81. The Plaintiff, to establish Faisal Essa's possession of Flat
No.21; the Ground Floor Premises and the Sixth Floor Premises, then
relied upon a report of the valuer E. V. Lokhandwala and Associates. The
report of the valuer can be found at Exhibit "S" to the plaint. From this
report, it is suggested that the valuer inspected the premises in March
2013 on Al-Ajmi's instructions and thereafter confirmed that Flat No.21;
the Ground Floor Premises and the Sixth Floor Premises were in the
owner's possession. However, before the CID, the valuer's representative
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made a statement that he had visited the building in the year 2005 and
that he had prepared the valuation on that basis. He confirmed that the
visit referred to in the report is a visit of 2005 and not of 2013, as was
sought to be suggested. In a supplementary statement, the said
representative confirmed that neither he nor anyone from his office
visited in the building Al-Sabah Court in the year 2013. He clarified that
the valuation report was prepared on the instructions of Mr. Fahad M. Al-
Ajmi based on the data available with E. V. Lokhandwala and Associates
from the site visit and valuation report of 2005. Once this is the statement
recorded by the police on behalf of E. V. Lokhandwala and Associates, the
reliance placed by the Plaintiff on the valuer's report, at least at the
interim stage, loses its evidentiary value to prove that Faisal Essa was in
possession of Flat No.21; the Ground Floor Premises and the Sixth Floor
Premises, until 6th May 2013.
82. Even as far as the electricity meter is concerned, merely
because the same stands in the name of the Plaintiff does not establish
that the Plaintiff [through Faisal Essa] was in possession of the premises
in question. In fact, the Plaintiff has not produced a single electricity bill
which has been paid by the Faisal Essa/owner nor is there an averment
that any such electricity bill for the premises [which form the subject
matter of the Suit] were paid by the Plaintiff.
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83. The next set of documents relied upon by the Plaintiff to
establish her possession of Flat No.21; the Ground Floor Premises and
the Sixth Floor Premises, were the affidavits filed by the tenants and
annexed at Exhibits "Y-1" to "Y-16" to the plaint. A perusal of the said
affidavits discloses that all of them are verbatim. Each of the tenants
claim to have made Faisal Essa in all the three premises till the last week
of April 2013 until he left for Kuwait. This itself, without anything more
and at least at the interim stage, would cast a doubt on the veracity of
these affidavits. Prima facie it would appear that these affidavits have
been prepared by Faisal Essa himself and then the tenants have been
called upon to execute these affidavits. This is also clear from the fact
that 14 out of these 16 affidavits have the notary stamp of Mr. M. N. Naqvi
and the stamp of an advocate Mutavalli G. M. with the words
"IDENTIFIED BY ME". This apart, in the investigation carried out by the
CID, most of the tenants gave statements before the police by stating that
they did not know the contents of these affidavits. The statement
recorded was that the affidavits were prepared by Faisal Essa and they
were merely told that these affidavits had something to do with the
building Al-Sabah Court and the tenants signed the same without
knowing the contents. Various tenants even withdrew their affidavits
before the Magistrate. I, therefore, find that even these affidavits, at least
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at the interim stage, do not have great evidentiary value to support the
case of the Plaintiff that Faisal Essa was in possession of Flat No.21; the
Ground Floor Premises and the Sixth Floor Premises until 6th May 2013
when he departed for Kuwait.
84. In view of the discussion in the preceding paragraphs and
when one looks at the overall facts and circumstances, at least at the
interim stage, I am of the opinion that the Plaintiff has failed to establish
that the Tenancy Agreement dated 30th October 2012 entered into
between Defendant No.1 and Faisal Essa is forged and fabricated and
neither have they been able to establish that Faisal Essa was in
possession of Flat No.21; the Ground Floor Premises and the Sixth Floor
Premises in the building called Al-Sabah Court. This becomes even more
significant when one takes into consideration that it is the case of the
Plaintiff that the mastermind behind this entire forgery was Defendant
No.1 and Defendant Nos. 2 and 3 were only his stooges. I have already
discussed in detail earlier as to why I have come to the conclusion that
the Tenancy Agreements executed by Faisal Essa which Defendant Nos.
2 and 3 prima facie appeared to be genuine and not forged and
fabricated. I am therefore of the opinion that the Plaintiff has been
unable to prima facie establish that the Tenancy Agreement dated 30th
October 2012 entered into with Defendant No.1 is a forged and fabricated
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document.
85. Having come to the conclusion that the Plaintiff has not been
able to establish even prima facie that the Tenancy Agreements entered
into by Faisal Essa with Defendant Nos.1, 2 and 3 respectively, are forged
and fabricated, there is no question of either appointing a Court Receiver
in relation to Flat No.21; the Ground Floor Premises and the Sixth Floor
Premises [which form the subject matter of the present Suit] or directing
the Defendants to pay any mesne profit to the Plaintiff. The question of
appointing a Court Receiver would arise only when the Court comes to
the conclusion that prima facie the Plaintiff has an excellent chance of
succeeding in the Suit and further that there is some emergency, danger
or loss demanding immediate action. On an application for the
Appointment of the Court Receiver, the Court would also examine the
conduct of the party who makes the application and would usually refuse
to interfere unless his conduct has been free from blame. In the present
case, there is already an order passed at the ad-interim stage dated 7th
May 2014, under which the Defendants have been restrained from
selling, alienating, transferring, encumbering or creating any third party
rights in respect of Flat No.21; the Ground Floor Premises and the Sixth
Floor Premises in the building called Al-Sabah Court. In my opinion, in
the facts and circumstances of the present case, an injunction restraining
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the Defendants from creating any third party right, title or interest in the
premises which are in their respective possession, would adequately
safeguard the rights of the Plaintiff, if any.
86. In these circumstances, it is directed that pending the
hearing and final disposal of the Suit:
(i) Defendant No.1 is restrained by an order and injunction
from selling, encumbering, parting with possession
and/or creating any third party right, title or interest in
Flat No.21 situated on the 5th floor of the building called
Al-Sabah Court situated at Marine Drive, Mumbai - 400
020 along with the parking garage admeasuring 225 sq.ft.
(ii) Similarly, Defendant No.2 is restrained by an order and
injunction from selling, encumbering, parting with
possession and/or creating any third party right, title or
interest in the room/office premises on the Ground Floor
admeasuring about 270 sq.ft. (carpet) next to Flat No.1, of
the building called Al-Sabah Court situated at Marine
Drive, Mumbai - 400 020.
(iii) Defendant No.3 is also restrained by an order and
Laxmi page 121 of 122
nms 313-14 ORDER.docx
injunction from selling, encumbering, parting with
possession and/or creating any third party right, title or
interest in the room adjacent to the terrace admeasuring
about 300 sq.ft. (carpet) situated on the Sixth Floor of the
building called Al-Sabah Court situated at Marine Drive,
Mumbai - 400 020.
87. The above Notice of is disposed of in the aforesaid terms.
However, there shall be no order as to costs.
88. Considering that the Suit is of the year 2014, the hearing of
the above Suit is expedited and placed on board for framing issues on 16th
December 2022.
89. This order will be digitally signed by the Personal Assistant
of this Court. All concerned will act on production by fax or email of a
digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Laxmi page 122 of 122
