Bombay High Court
Mr. Rajendra Balkrishna Vichare vs M/S. S. D. Corporation Private ... on 3 May, 2023
Bench: N. J. Jamadar
2023:BHC-AS:13744
19-AO-274-23+.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.- 274 OF 2023
WITH
INTERIM APPLICATION NO. 3580 OF 2023
WITH
APPEAL FROM ORDER NO.- 275 OF 2023
WITH
INTERIM APPLICATION NO. 3581 OF 2023
WITH
APPEAL FROM ORDER NO.- 276 OF 2023
WITH
INTERIM APPLICATION NO. 3582 OF 2023
Mr. Rajendra Balkrishna Vichare ...Appellant
Vs.
M/s. S.D. Corporation pvt. Ltd and Others ...Respondents
Mr. Induprakash Tripathi i/b Mr. Abhishek Lalji Tripathi, for
Appellant.
Mr. Ketan Parekh i/b K.R. Parekh and Co., for Respondent
No. 2.
CORAM:- N. J. JAMADAR, J.
DATED:- 3rd May, 2023
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ORDER:-
1) This Appeal is directed against a common order dated 27 th
January, 2023, passed by the learned Judge, City Civil Court in
Notice of Motion Nos. 2067 of 2017, 2366 of 2017 and 1097 of
2018, whereby the Notices of Motion Nos. 2067 of 2017 and 2366
of 2017 taken out by the appellant-plaintiff came to be dismissed
and the Notice of Motion No. 1097 of 2018 taken out by the
respondent-defendant No. 2 came to be partly allowed thereby
directing the respondents-defendant Nos. 1, 5 and 6 to hand over
possession of permanent alternate accommodation i.e. Flat No.
2074 in Building No. 2, to defendant No. 2 with further direction
to the defendant No. 2 not to part with the possession of the
permanent alternate accommodation and create any third party
interest therein, till disposal of the suit.
2) For the sake of convenience and clarity the parties are
hereinafter referred to in the capacity in which they are arrayed
before the City Civil Court.
3) Background facts can be stated in brief as under:-
(a) In the year, 1983, the premises bearing Room No. 2005 in
Building No. 108, Poisar Pancholi Housing Soc. Ltd, the
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defendant No. 5 was allotted to the plaintiff by the Mumbai
Housing and Area Development Board ("suit premises").
(b) After marriage of Ravindra, the plaintiff's brother, the
plaintiff permitted Ravindra and defendant No. 2, his wife, to
occupy the suit premises. The proprietary title in the suit
premises, however, continued to vest in the plaintiff. Ravindra,
plaintiff's brother and husband of defendant No. 2, passed away
on 8th November, 2011. Defendant No. 5-Society went for
redevelopment.
(c) Plaintiff asserts, defendant No. 2 surreptitiously got
executed an agreement for transit/permanent alternate
accommodation with defendant No. 1- the Developer. Upon the
persuasion by the plaintiff, the defendant No. 1 executed another
agreement for permanent alternate accommodation with the
plaintiff.
4) As the defendant Nos. 1, 5 and 6 threatened to deliver the
possession of the permanent alternate accommodation to
defendant, instead of the plaintiff, he was constrained to institute
a suit for declaration that the defendant No. 2 has no right, title
and interest in the suit premises and that agreement dated 28 th
January, 2013, executed by and between the defendant Nos. 1
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and 2 with respect to the suit premises was illegal, void and did
not bind the plaintiff and also for an order to the defendant No. 1
to provide the permanent alternate accommodation in lieu of the
suit premises, to the plaintiff in pursuance of the agreement
dated 20th April, 2013 and restrain the defendant Nos. 1, 5 and 6
from handing over the possession of the permanent alternate
accommodation to defendant No. 2.
5) In the said suit, the plaintiff took out Notice of Motion No.
2067 of 2017 against defendant Nos. 1, 3 and 4 and Notice of
Motion No. 2366 of 2017 against defendant Nos. 1, 5 and 6, to
temporarily restrain the defendant No. 1 and 3 to 6 from
delivering possession of the permanent alternate accommodation
to defendant No. 2 and interim mandatory injunction directing
defendant Nos. 1 and 3 to 6 to hand over the possession of the
permanent alternate accommodation to the plaintiff.
6) The defendant No. 2, in turn, took out the Notice of Motion
No. 1097 of 2018, seeking direction to defendant Nos. 1, 5 and 6
to hand over the possession of the permanent alternate
accommodation to defendant No. 2.
7) By the impugned order, after appraisal of the pleadings and
material pressed into service and the submissions canvassed on
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behalf of the parties, the learned Judge, City Civil Court was
persuaded to dismiss the Notice of Motion taken out by the
plaintiff and partly allow the Notice of Motion taken out by the
defendant No. 2, as indicated above.
8) Being aggrieved the plaintiff is in Appeal.
9) I have heard Mr. Induprakash Tripathi, the learned
Counsel for the appellant, and Mr. Ketan Parekh, the learned
Counsel for the respondent No. 2 at some length. With the
assistance of the learned Counsel for the parties, I have perused
the material on record.
10) Mr. Tripathi strenuously submitted that the learned Judge,
City Civil Court committed a manifest error in granting a
mandatory injunction in favour of the defendant No. 2 in the
absence of counter claim in the suit instituted by the plaintiff.
Though the learned Judge correctly observed that the case of the
defendant No. 2 was not covered by any of the situations
contemplated in Order 39 Rule 1 of the Code of Civil Procedure,
1908 ("the Code, 1908"), yet the learned Judge committed a grave
error in granting injunction by resorting to the provisions
contained in Section 151 of the Code, 1908. Mr. Tripathi urged
with a degree of vehemence that the fact that the suit premises
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was allotted to the plaintiff was incontestible. In the
circumstances, there was no justifiable reason to deprive the
plaintiff from all the incidences of ownership. Thus, the Notice of
Motion taken out by the plaintiff could not have been dismissed,
urged Mr. Tripathi.
11) In opposition to this, Mr. Parekh would urge that the
learned Judge, City Civil Court correctly exercised the discretion
in favour of the defendant No. 2. Emphasis was laid on the fact
that the plaintiff had never been in possession of the suit
premises and on the day the building, in which the suit premises
was situated, went into redevelopment, Defendant No. 2 was in
actual physical possession of the suit premises and thus initially
the permanent alternate accommodation agreement came to be
executed with defendant No. 2. Moreover, since the plaintiff had
divested his interest in the suit premises by executing an
instrument in favour of the husband of defendant No. 2 and was
never in possession of the suit premises, only defendant No. 2 is
legitimately entitled to the possession of the permanent alternate
accommodation.
12) I have given careful consideration to the aforesaid
submissions. It is imperative to note that prima facie findings
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recorded by the learned Judge, City Civil Court that defendant
No. 2 and her husband, during later's life time, were in the
occupation of the suit premises; on the date the suit premises
was vacated for redevelopment, the defendant No. 2 was in actual
physical possession of the suit premises and that defendant No.
1 - Developer had provided transit accommodation to defendant
No. 2, are rather impeccable. Mr. Tripathi attempted to salvage
the position by canvassing a submission that what matters is the
title to the suit premises. The fact that the defendant No. 2 and
her husband were in permissive possession of the suit premises
would not divest the plaintiff's ownership thereof, urged Mr.
Tripathi.
13) At this stage, I find it difficult to accede to the aforesaid
broad submissions unreservedly. The question of title to the suit
premises and the entitlement of the plaintiff to the declaration
that the defendant No. 2 has no right, title and interest in the
suit premises can be legitimately determined at the stage of final
adjudication of the suit. At this stage, the legality and propriety
of impugned order which, in a sense, makes an interim
arrangement till the disposal of the suit deserves to be tested.
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14) The learned Judge, City Civil Court, in my view, correctly
appreciated the parameters of prima facie case and balance of
convenience. In the case at hand, there is not much controversy
over the fact that the defendant No. 2 had been in possession of
the suit premises on the day the defendant No. 5- Society went
into redevelopment. Initially, defendant No. 1 executed
permanent alternate accommodation with defendant No. 2.
Indisputably, the defendant No. 1 has provided transit
accommodation to defendant No. 2.
15) In a situation of this nature, the entitlement to permanent
alternate accommodation primarily turns on the factum of
possession rather than the title to the property, which has since
been redeveloped. Subject to the final determination of the
competing rights of the parties, ordinarily the benefits which flow
from the redevelopment are permitted to be granted to the person
who is found to be in the occupation of the premises which goes
into redevelopment.
16) A useful reference, in this context, can be made to a
judgment of this Court in the case of Heritage Lifestyles and
Developers Pvt Ltd Vs. Amar-Villa Co-operative Housing Society
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Ltd and Others1, wherein this Court held that the person who is
dispossessed would be entitled to the benefits emanating from
redevelopment of the premises, of which he is dispossessed. The
aforesaid pronouncement was followed with approval in another
order of this Court in Commercial Arbitration Petition (L) No.
4301 of 2022, dated 16th March, 2022. The observations in
paragraph No. 9 are material and hence extracted below:-
is in possession of the tenement in question and
would not be handing over possession of such
tenement to the petitioner/society. Hence,
considering the consistent view taken by this
Court in Heritage Lifestyles and Developers Pvt Ltd
Vs. Amar-Villa Co-operative Housing Society Ltd
and Others and in Saikripa Co-operative Housing
Society Ltd V/s Osho Developers and Ors., the
party who is dispossessed, would be entitled to the
transit rent as it is such party who is put to
hardship....."
17) The learned Judge, City Civil Court rightly held that the
fact that the case of the defendant No. 2 did not fall within the
ambit of the provisions under Order 39 Rule 1 of the Code, 1908,
did not constitute an impediment in granting the injunctive relief
in favour of the defendant No. 2. There is nothing in Order 39
rule 1 and 2 which precludes a Court from granting temporary
injunction in cases which are not covered by those rules.
1 2011 (3) Mh.L.J. 865
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Reliance by the learned Judge, City Civil Court on the judgment
of the Supreme Court in the case of Manohar Lal Chopra Vs. Rai
Bahadur2, in the facts of the case, was well placed.
18) The matter can be looked at from the perspective of grant of
an equitable relief. It is incontrovertible that the defendant No. 2
was in possession of the suit premises on the day it went for
redevelopment. It was the defendant No. 2 who, upon being
displaced, was provided transit accommodation by defendant No.
1. Initial agreement for transit/permanent alternate
accommodation came to be executed in favour of the defendant
No. 2. She was constrained to approach the Court for direction to
hand over the permanent alternate accommodation as defendant
No. 1 threatened to evict her from the transit accommodation.
Moreover, the permanent alternate accommodation, despite being
ready in all respect, remains unoccupied on account of the
dispute between the plaintiff and defendant No. 2. In this factual
backdrop, the dictates of justice command that defendant No. 2,
who was dispossessed of the suit premises, be put in possession
of permanent alternate accommodation subject to the final
adjudication of competing claims thereto.
2 AIR 1962 SC 527
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19) In the aforesaid view of the matter, I do not find any
justifiable reason to interfere with exercise of discretion by the
learned Judge, City Civil Court.
20) Hence, the Appeal deserves to be dismissed.
21) Thus, the following order.
-:ORDER:-
i) The Appeal stands dismissed.
ii) In view of the dismissal of the Appeal, the
Interim Application also stands dismissed.
iii) Having regard to the fact that the suit came
to be instituted in the year 2013 and the limited
nature of the controversy, the learned Judge, City
Civil Court is requested to adjudicate the suit as
expeditiously as possible.
[N. J. JAMADAR, J.]
