In such a suit, if the injunction as claimed, has to be
granted, then, the RespondentPlaintiff ought to have placed before the
Court enough material to indicate that his possession in the suit flat was
exclusive and not intermittent. That he visited and resided in the suit flat
on more occasions than the Appellant No.1 is, thus, prima facie not
conclusive. The Appellant must have produced a strong prima facie proof
of his possession of the suit flat and to the exclusion of the Appellant No.1.
That material is found to be lacking, prima facie. In that regard, the
learned Single Judge has relied upon the rent receipts from the time of the
mother's death in August 2001 till the date of the alleged trespass by the
original Defendants. These according to the learned Judge show that for
the last more than 10 years, it is the RespondentPlaintiff who has paid the
rent by cheque and rent receipts have been issued to him by the landlord,
though in the name of his deceased father. In that regard, what we find
from perusal of these bills is that they have been issued in the name of the
deceased father. Each of these bills and which have mentioned the cheque
number and the date and the period indicate the name of Mr. B. N.
Adarkar. If, these rent receipts from Annexures CI onwards are carefully
perused, they do not in any manner indicate that the rent receipts have
been transferred after the death of the father either in the name of the
mother or thereafter in the name of the RespondentPlaintiff. In fact, no
document has been placed on record making such a request and
emanating from the RespondentPlaintiff. Thus, the monthly rent receipts
and payment made by cheque, by the RespondentPlaintiff, are not enough
to show the settled and exclusive possession. The bank account of the
RespondentPlaintiff may show the address of the suit flat and equally the
telephone bills and electricity bills but they do not indicate his exclusive
and settled possession. That there are certain documents in the form of
communications and letters would only show that the RespondentPlaintiff
indicated the address of the suit flat for the purposes of correspondence
and communication with him. That is to indicate the place where he can
be contacted and communicated in India. However, in the backdrop of his
own case as set out in the plaint, this material can never be said to be decisive and even prima facie.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 68 OF 2014
WITH
NOTICE OF MOTION (L)NO.292 OF 2014
WITH
NOTICE OF MOTION (L)NO.670 OF 2014
Mrs. Mina Srinivasan Krishnan
..Appellants
(Original Defendants)
Versus
Arun Bhaskar Adarkar
CORAM: S.C. DHARMADHIKARI
AND
G. S. KULKARNI, JJ.
PRONOUNCED ON : 24TH SEPTEMBER,2014
Citation;AIR2015(NOC)205 Bom
This Appeal under clause 15 of the Letters Patent is directed against
the order passed by the learned Single Judge on an Interim
Application/Notice of Motion No.1548 of 2011 in the above suit. By the
impugned order dated 20th January, 2014, the learned Single Judge has
ig
allowed this Notice of Motion and made it absolute in terms of prayer
under:
clause (a) thereof. Prayer clause (a) of the Notice of Motion reads as
“(a) That pending the hearing and final disposal of the Suit,
the Defendants, their servants and agents be restrained by
temporary order and inunction of this Court from entering
upon or remaining on the Suit Flat viz. Flat No.5, Second
Floor, Goolestan, 37, (East) Wing, Cuffe Parade, Bombay 400
2]
005, or any part thereof without the permission of the
Plaintiff.”
That was a Notice of Motion which was moved by the Respondent
original Plaintiff in the above suit. The Appellants before us are the
original Defendants and they are restrained by the temporary order and
injunction from entering upon or remaining on the suit flat being flat
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No.5, Second Floor, Goolestan, 37, (East) Wing, Cuffe Parade, Bombay
400 005, or any part thereof. This flat shall be referred to as the “suit
3]
flat”.
The Suit has been filed by the RespondentPlaintiff in the following
circumstances:
The RespondentPlaintiff filed the Suit No.1173 of 2011 in this
ig
Court challenging that he is a senior citizen and is physically handicapped.
He had Polio at the age of one year, which considerably weakened both his
legs and his right arm. He has pointed out that this has affected his
mobility. The Appellant No.1 is the original Defendant No.1. She is
younger married sister of the original Plaintiff. The Appellant No.2 is
husband of the Appellant No.1.
4]
The Respondent/ Plaintiff stated in paragraph 1 of the plaint that he
is a resident of Washington D.C., United States of America. He is a tenant
of and in lawful and juridical as well as physical settled possession of Flat
No.5, Second Floor, Goolestan, 37, East Wing, Cuffe Parade, Mumbai
400005. He is approaching this Court seeking permanent injunction
against the Appellants, their servants and agents from interfering with his
possession over the suit flat. It is alleged that the Appellants have
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trespassed into the suit flat on 23.04.2011 and disturbed peace and right
5]
of the Respondent/ Plaintiff therein.
In paragraph 3 of the plaint, it is alleged that the Appellant No.1
and original Plaintiff resided in the suit flat with their parents Bhaskar
Namdeo Adarkar and Mrs.Sarla Bhaskar Adarkar and brother Vivek
Bhaskar Adarkar since December, 1965. The suit flat was then owned by
ig
M/s.Patel Volkart and leased to the Reserve Bank of India where the
Respondent's father was Deputy Governor. The father of Respondent
became a tenant of the suit flat in or about 1969 and was paying monthly
rent to Patel Volkart. The ownership of suit flat was transferred by Patel
Volkart in or about 1983 to M/s. Ruchi Properties Ltd. now renamed as
Isha Infratech Private Limited along with the tenancy of the Respondent's
father.
6]
The Respondent/ Plaintiff stated as to how he was working with
Asian Development Bank. As a part of his employment, he was posted
outside India. The Respondent subsequently joined the services of
International Monetary Fund in January, 1992 and continued to be posted
outside India. He is a person of Indian origin and holds a P
.I.O. Card issued
by Indian Embassy at Washington D.C.. He has also referred to certain
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diplomatic passports issued to him and which stated in the column of
7]
permanent address, the details of the suit flat.
The Respondent/ Plaintiff has narrated as to how he married one
Meenalaxmi Sanzgiri on 22.05.1966 and from this marriage he has a son
It is alleged that the Appellant No.1 married the Appellant No.2 in
ig
8]
and a daughter. The said Meenalaxmi Sanzgiri expired on 04.08.1993.
or about 1970 and left the suit flat. Since the time of Appellant No.1's
marriage, she has been residing with her husband (Appellant No.2) and
not in the suit flat. It is alleged that the Appellant Nos.1 and 2 are residing
at the address mentioned in the cause title of the plaint. They are staying
in a duplex flat which is in the name of a Private Limited Company,
namely, Lotus Learning Private Limited which is believed to be owned and
controlled by the Appellants.
9]
It is then alleged that the Respondent/ Plaintiff married one
Ms.Fiona Shrikhande in November, 1996. Ms.Fiona Shrikhande has a
daughter by name Ms.Marisha from her first marriage to one Mr.Jayant
Kirtane. Ms.Fiona Shrikhande and Mr.Kirtane were divorced in 1983 and
custody of daughter Ms.Marisha was, therefore, handed over to Ms.Fiona
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Shrikhande. After the Respondent's marriage with Ms.Fiona, Ms.Marisha
also lives with the Respondent. The Respondent/ Plaintiff's children from
first marriage are now settled abroad and living independently. They are
married and residing with their respective families in the United States of
America.
In paragraph 8 of the plaint it is alleged that the Respondent/
10]
ig
Plaintiff's father expired in Mumbai on 20.03.1998 leaving behind the
Plaintiff's mother, Plaintiff, Appellant No.1 and one brother of Plaintiff,
namely, Vivek Bhaskar Adarkar as the heirs. In terms of wishes of the
father, the tenancy of suit flat was transferred to the mother of Appellant
No.1 and Plaintiff. The landlord, however, continued to issue rent receipts
in the name of deceased father. The assertion of Respondent/ Plaintiff is
that he paid rent to the landlord in respect of the suit flat after his father's
demise and he continues to pay the same till the date of filing of the Suit.
11]
The mother of Respondent expired at Mumbai on 28.08.2001
leaving behind the Appellant No.1, Plaintiff and their brother Vivek as the
heirs. A reference is made to the Will left behind by the mother dated
26.02.1985 in respect of which the Probate was obtained by the
Respondent/ Plaintiff on 22.12.2005. It is alleged that at the time of the
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death of mother only the Respondent and his wife were residing with her
in the suit flat. The Appellant No.1 was not residing at the suit flat, but at
her matrimonial home at Bandra. In paragraph 9 of the plaint these
assertions are to be found and it is further alleged that since death of the
mother of Respondent in 2001, the Respondent succeeded to the tenancy
of the suit flat. He has been in juridical and settled possession of the suit
flat. It is the Respondent who has been regularly paying rent to the
ig
landlord. The brother of Appellant No.1 and Respondent/ Plaintiff,
namely, Vivek Adarkar was residing in Burough of Queens, New York,
USA. He was bachelor and expired in New York on 19.08.2009. The
specific assertion in the plaint is that as the Respondent and his mother
were residing with the Respondent's father in the suit flat at the time of
his death and thereafter, the Respondent was residing in the suit flat along
with his mother at the time of her death, he became a tenant of the suit
flat in accordance with the provisions of law. In any event, the Appellant
No.1 was not residing with the father or mother in the suit flat at the time
of their death. This assertion coupled with moving out of the suit premises
by the Appellant No.1 since her marriage is reiterated in paragraph 10 of
the plaint.
12]
In paragraph 11 of the plaint, it is alleged as to how at the time of
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father's death in 1998, the mother of Appellant No.1 and Respondent was
suffering from Alzheimer's disease in an advanced stage. The
responsibility of paying monthly rent was taken over by the Respondent/
Plaintiff. The Respondent paid monthly rent to the landlord which the
landlord agreed to receive, but rent receipts were not issued in the name
of the Respondent, but his deceased father. Reliance is placed upon a
sample rent receipt. It is asserted that the rent is being paid by the
The Plaintiff states that though Defendant No.1 does
not have any right, title and interest in the Suit Flat,
she being the Plaintiff's sister, the Plaintiff voluntarily
and out of love and affection towards his sister, offered
to pay her certain amount if the Plaintiff decided to
surrender the tenancy of the Suit Flat. The Plaintiff,
however, did not wish to surrender or transfer tenancy
of the Suit Flat. Hereto annexed and marked Exhibits
“E1” to “E6” are the copies of the emails recently
exchanged between the Plaintiff and Defendant No.1 in
this regard.”
“12.
plaint it is alleged as under:
ig
Respondent alone since his father's death in 1998. In paragraph 12 of the
13]
Thereafter, in paragraphs 14 to 19 of the plaint it is alleged as
under:
“14.
As aforesaid, the Plaintiff is physically handicapped and
unable to freely walk without support. Due to his
physical condition, certain alterations and changes were
made in the bathroom attached to the bedroom occupied
by the Plaintiff in the Suit Flat. All the furniture, fixture
and other items in the Suit Flat were inherited and/or
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On 23rd April, 2011 when the Plaintiff and his wife Ms.
Fiona had just returned to Washington DC from a 19
day sea voyage and the said daughter Ms. Marisha, who
was otherwise residing in the Suit Flat, was on vacation
in Europe, the Defendants rung the door bell at about
12.30 p.m. The said Solkar answered the door bell and
looked out of the peephole on the door and saw the
Defendants. But he had never seen them before and
therefore did not recognize them. At that time Solkar
was alone at home. When Solkar opened the door, the
Defendants pushed their way into the Suit Flat.
Defendant No.1 informed Solkar that she was the
Plaintiff's sister and the man accompanying her was her
husband, Mr. Krishnan. The Defendants told Solkar that
Defendant No.1 also has rights in the Suit Flat. The
Defendants then made a phone call from their mobile
phone, and shortly after that a locksmith arrived and
proceeded to change the lock of the front door. Solkar
was frightened by the Defendants' behaviour as they
were very aggressive. Defendant No.2 demanded from
Solkar his key to the back door which Solkar handed
over to him.
15.
ig
purchased by the Plaintiff and his family and therefore
belong to the Plaintiff. There were three sets of keys to
the Suit Flat. One remained with the Plaintiff, one with
the Plaintiff's daughter Marisha, and one with the
Plaintiff's cousin Ms. Priya Adarkar who resides in
Hyderabad and visits Mumbai frequently and stays in
the Suit Flat with the Plaintiff's knowledge and consent.
The Plaintiff's full time servant Shahshikant Solkar had
a key to the rear door to the Suit Flat. The said Solkar
has been looking after the Suit Flat since 2006 and
resides in the said Flat with the Plaintiff. Even in the
absence of the Plaintiff and his family members, the said
Solkar stays in the Suit Flat. As such, the keys to the
back door of the Suit Flat were with the said Solkar.
16.
Solkar thereafter retreated to the kitchen and made a
phone call to Ms. Priya Adarkar, the Plaintiff's cousin
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who had visited Mumbai from Hyderabad and had been
staying in the Suit Flat till the previous day, and
informed her about what had happened. Ms. Adarkar
asked Solkar to call Shailesh Patkar, a friend of the
Plaintiff and also inform him about what had happened.
Accordingly, Solkar informed Patkar about the same.
The Plaintiff was informed by Solkar that after about 2
hours i.e. at about 3.00 p.m. a few policemen arrived at
the Suit Flat. The said policemen asked Solkar how long
he had been working for the Plaintiff in Goolestan.
Solkar replied that he was with the Plaintiff for six
years. The policemen also enquired with Solkar whether
he recognised the Defendants. Solkar told the policemen
that he had never seen the Defendants before. The police
then left the Suit Flat.
18. Defendant No.2 then demanded to know who had
informed the police and who had given Solkar the
authority to make a phone call. Solkar told the police
that he had called Ms. Priya Adakar and then Patkar as
instructed by Ms. Priya Adarkar.
ig
17.
19.
14]
Defendant No.2 was very upset with Solkar for
informing Ms. Priya Adarkar and Patkar about the
Defendants' entry into the flat. Defendant No.2 then
told him to pack all his belongings and leave the Suit
Flat immediately. Defendant No.2 thrust Rs.7,500/ at
Solkar and threatened Solkar by saying it was in his best
interest to leave. Solkar left as he was scared by the
Defendants' behaviour and went to the next door
neighbours Mrs. and Mr. Malegam and told them what
had happened. The neighbours said they would call the
Plaintiff and asked Solkar to stay at their house. Solkar
has been staying there since.”
In paragraph 20 it is alleged that the Respondent/ Plaintiff had to
interrupt his medical treatment due to a serious fall. He, therefore, came
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to Mumbai with his wife on 25.04.2011 in order to deal with the situation
created by the Appellants' illegal and forceful entry in the suit flat. The
Appellants also tried to bring in certain articles to show their presence in
the flat. It is then alleged that the Appellants are presently occupying the
Respondent's bedroom in the suit flat as a result whereof the Respondent
is using another bedroom and is finding it extremely difficult to use that
and other bathrooms which are not convenient for the use of a
ig
handicapped person. He has to, therefore, stay at a hotel and club. He has,
thus, narrated as to how he and his family are uprooted in a way. There
has been reference made in subsequent paragraphs to the complaints to
the Police. The Respondent/ Plaintiff asserts his settled and lawful
possession by relying on certain documents referred to in paragraph 22
and finally it is submitted that attempts were made to resolve the dispute
between brother and sister amicably, but they could not succeed. With all
these and such allegations including the claim for damages that the suit
has been filed in this Court with other usual averments on 11.05.2011.
The prayers in the Suit read as under:
(a)
that the Defendants be ordered and decreed to jointly
and/or severally pay to the Plaintiff a sum of
Rs.6,69,982/ (Rupees Six Lakhs Sixty Nine Thousand
Nine Hundred Eighty Two only) as per the Particulars of
Claim (being Exhibit “l” hereto) and interest thereon at
the rate of 18% per annum from the date of filing of the
Suit till payment or realisation thereof;
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that this Hon'ble Court be pleaded to permanently
restrain the Defendants, their servants and agents by an
order and injunction from entering upon or remaining
on the Suit Flat viz. Flat No.5, Second Floor, Goolestan,
37, (East) Wing, Cuffe Parade, Bombay 400 005, or any
part thereof without the permission of the Plaintiff;
(c) that pending the hearing and final disposal of the Suit,
the Defendants, their servants and agents be restrained
by temporary order and injunction of this Hon'ble Court
from entering upon or remaining on the Suit Flat viz.
Flat No.5, Second Floor, Goolestan, 37, (East) Wing,
Cuffe Parade, Bombay 400 005, or any part thereof
without the permission of the Plaintiff;
(d) for adinterim relief in terms of prayer clause (c) above.”
ig
(b)
In furtherance of the final reliefs the Respondent/ Plaintiff applied
15]
for interim reliefs by moving the above referred Notice of Motion. The
interim prayer has also been reproduced by us above.
16]
Upon being served with the papers and proceedings, the Appellants
Original Defendants filed their Affidavit in reply. In the two affidavits
which were filed firstly to oppose any adinterim reliefs and thereafter the
interim reliefs, what the Appellants contended was that firstly this Court
has no jurisdiction to entertain and try the suit. Alternatively and without
prejudice, it was urged that the Appellant No.1 Mrs. Mina Srinivasan
Krishnan, is a tenant in the suit flat along with the Respondent. She does
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not require any permission of the Respondent to enter into or remain in
the suit flat. It was urged that the Respondent with malafide intention has
wrongly disputed the Appellant No.1's right as a tenant in respect of the
suit flat. He is falsely seeking to claim exclusive tenancy rights in respect
of the suit flat. There is no such sole tenancy right. It is submitted that
Appellant No.1 is a daughter of the deceased and she has enjoyed
uninterrupted access, use and enjoyment to the suit flat since 1965.
ig
Similarly, the Respondent enjoyed such access being the son of the
deceased tenant. The Appellants denied of having trespassed into the suit
flat on 23rd April, 2011 and/or having disturbed the peaceful rights of the
RespondentPlaintiff. It has been urged that there is no illegal or forceful
attempt to enter the suit flat. Similarly, it is incorrect to urge that the
Appellant No.1 unlawfully attempted to claim possession of the suit flat.
She stated that she is one of the surviving heirs of the deceased parents.
She is the sister of the Respondent and, therefore, has a legal right to the
tenancy of the flat. She claimed that she is not interfering with the
Respondent's peaceful possession of the suit flat.
17]
In para6 of the affidavit in reply filed on 14 th June, 2011 to oppose
adinterim relief, this is what is stated :
“I say that however, the Plaintiff had my name plate on the front
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ig
door of the suit flat removed. I say that this is evident from my
email to the Plaintiff (Exhibit E3 at page 54 to the plaint to the
present suit). I say that on 23rd April, 2011, servant Mr. Solkar
indicated to me several people and keys to the suit flat which
were provided by the Plaintiff. I say that on hearing this I
summoned a locksmith and had the lock to the front door
changed. I say that hence for security reasons, I changed the lock
on the front door on April 23, 2011, and promptly gave Plaintiff
the new key on his arrival in the suit flat on the morning of April
25, 2011. I say that the Plaintiff has suppressed this fact.
I say that the Plaintiff and his wife Ms Fiona have used the
key to gain access to the suit flat repeatedly since then. I say
that the Plaintiff has himself chosen not to stay in the suit flat,
and has trumped up false reasons as to why he is unable to live
there. I say that Plaintiff has falsely claimed that all the
furniture, fixture and other items in the suit flat belong to him
and his family. I say that even by the Probated Will of our
mother it is provided by our mother that “I direct that my sons
Arun and Vivek and daughter Mina shall have equal shares in
my movable estate.” Since Vivek is now deceased, I say that I
have an equal share with Plaintiff as regards the furniture,
fixture and other items in the suit flat.”
18]
It has been claimed that most of the major pieces of furniture in the
flat had been provided by the Appellant No.1 to the parents over the years
and those were also enlisted in this Appeal.
19]
The contents of the affidavit of Shashikant Solkar were denied and
that version was also challenged. Similarly, from para9 onwards the case
of the first Defendant has been extensively set out. It is stated that the
Respondent has suppressed the fact that he is a permanent resident and
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citizen of United State of America (for short “U.S.A.”). The Respondent
Plaintiff does not reside at Mumbai and/or in the suit flat. The
RespondentPlaintiff was not living in the suit flat with the father and/or
mother before his/her demise, or afterwards. It was asserted that the
RespondentPlaintiff left India for U.S.A. in 1992 and became a permanent
resident of the said country. Thereafter, he became a citizen of United
States of America and from or about the year 2000, acquired a U.S.A.
ig
Passport and surrendered his Indian Passport. Reliance was placed on
AnnexureB (pages 21 and 22) to the plaint in the present suit which
according to the Appellant No.1 showed that the Respondent's Indian
Passport has been cancelled. In para9 of this affidavit, this is what is
stated :
20]
“I say that the Plaintiff acquired a U.S. Passport No.01618474
issued at Washington D.C. On 19th September, 2000. This is
evident from the affidavit dated 26th July, 2005 in support of
the Judges order in Probate Petition No.39 of 2005 filed by the
Plaintiff before this Court (page 7) which is affirmed at the
Indian Embassy, Washington D.C. on July 26, 2005. Annexed
hereto and marked as Exhibit “A” is a copy of the affidavit dated
26th July, 2005 in support of the Judges Order in support of the
said Probate Petition No.39 of 2005. I say that the Plaintiff's
latest U.S. Passport number is 467035831 issued by the State
Department, and valid till March 1, 2020. This is evident from
Exhibit “A” page 19 of the Plaint to the present Suit No.1173 of
2011 showing Plaintiff's PIO card and US Passport Number and
date of expiry.”
Thereafter, it was stated that there is another brother of the
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Respondent and the Appellant No.1 Vivek Bhaskar Adarkar, who expired
issueless and as a bachelor in the year 2009. Therefore, it was denied that
the Respondent is using and residing at the suit flat with his second wife
Ms. Fiona and daughter Ms. Marisha. This was sought to be supported by
the affidavit dated 26th July, 2005 verified at the Indian Embassy in
Washington D.C which formed part of Probate Petition No.39 of 2005 filed
in this Court. The contents of this Probate Petition are referred to in para
ig
11 of the affidavit. Then, it is stated that the mother Sarala Adarkar
passed away on 28th August, 2001. In other words, it was stated that the
Respondent's case is that he left for U.S.A. in mid September 2001 or
thereabouts. However, this is totally false. He did visit Bombay very
briefly a few times but was never living and residing much less exclusively
in the suit flat. From 1967, 1968 to 1970 the Respondent lived in U.K. ,
from 1970 to 1975 he lived in Delhi in a flat at Maharani Baug, from
1975 to 1990, the RespondentPlaintiff lived in Manila, and from 1990 till
date he has been a permanent resident in Washington D.C., U.S.A. Thus,
he is a intermittent visitor to the suit flat, coming there only on leave and
for holidays. He visited Bombay only in connection with the funeral of the
parents. After every such visit, he returned to U.S.A.
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Thus, the conduct of the RespondentPlaintiff is unfair. He has not
21]
APEAL(L)68.14
approached the Court with clean hands. In para16 of the affidavit, it has
been stated that Appellant No.1 lived in the suit flat on several occasions
for extended periods i.e. from 1972 till her daughter Ayesha was born,
after various surgeries in 1970's, 1980's and 1990's and when her flats at
Girgaum, Nepean Sea Road and Bandra were being renovated. She also
resided to look after the parents on various occasions as they were old and
ig
infirm. It has also been stated that her daughter Ayesha was the only
grand child living in Mumbai and had spent almost every weekend and a
considerable portion of vacation in the suit flat from 1992 to 2001. Thus,
the Appellant No.1 claimed that she has stayed at the suit flat during the
lifetime of her parents on many occasions and at that time no complaint of
trespass was filed by the RespondentPlaintiff. Further, it was denied that
the RespondentPlaintiff and his family are in lawful, juridical and/or
physical settled possession of the suit flat. It is denied that the
Respondent's wife who is in fact second wife (Ms Fiona) was living in the
suit flat. It is stated that she resides with the Plaintiff in Washington D.C.
The step daughter of the RespondentPlaintiff has also not been residing in
the suit flat and further that she is also a U.S.A. citizen.
22]
Thus, the claim was that the father of RespondentAppellant No.1
late B. N. Adarkar was a tenant in respect of the suit flat and that the
tenancy of the flat was never transferred to the mother after the demise of
the father or after her demise to the RespondentPlaintiff. Even the rent
receipts continued in the name of the deceased B. N. Adarkar.
23]
It was next contended and in para19 of the affidavit that the
RespondentPlaintiff has mixed his personal assets with the assets of the
deceased parents. The RespondentPlaintiff has been paying rent to the
landlord as an executor of the estate of the parents. The Respondent was
paid the amount by cheque and cash by the Appellant No.1 so as to defray
the expenses in relation to the suit flat including the rent thereof.
However, no accounts have been submitted by the RespondentPlaintiff
and, therefore, a Misc. Petition has been filed in this Court seeking
direction to the Respondent as an executor of the estate to render
accounts.
24]
After setting out as to how the tenancy rights of the father would
devolve on the heirs by virtue of section 7(15) of the Maharashtra Rent
Control Act, 1999, it has been stated that a suit has been filed being
R.A.D. Suit (Stamp)No.2242/2011 in the Court of Small Causes at
Bombay for a declaration that the Appellant No.1 is a tenant in the suit
flat and the tenancy is protected by virtue of the Maharashtra Rent
Control Act, 1999. The reliefs claimed by the Appellant No.1 in the plaint
25]
filed in the Small Causes Court are, then, referred.
Thereafter, the Appellants denied that the Appellant No.1 is
occupying the Respondent's Bed room. They referred to the location of
the bed rooms and submit that the Appellant No.1 is occupying her own
bed room. The bath rooms have been modified so as to be accessible for
the elderly and handicapped. The Appellants made an allegation that the
Respondent has locked up two of the bed rooms in the four bed room flat.
The plea of being handicapped is invoked in order to deprive Appellant
No.1 of her own bed room. It has been stated that the offer was made to
install airconditioner in the Respondent's bed room on his arriving in
Mumbai but that offer has been rejected. It has been alleged that the
Respondent has chosen to live in luxury in 5 Star Hotels/clubs on his own
volition. On this basis, the legal right to enter, use and occupy the flat as
one of the surviving heirs of the Appellants has been asserted. There are
various allegations made of intimidation and assault. The area of the flat
has been mentioned as 4000 sq. ft. and, therefore, all the allegations in so
far as the claim of damages is concerned, are denied.
An affidavit in rejoinder has been filed so as to deal with the
26]
contents of the affidavit in reply dated 14 th June, 2011 and the contents of
the documents. We are now not concerned with the issue of jurisdiction
of this Court because that is already dealt with and decided by us by our
judgment and order in Appeal No.312 of 2012 decided on 16 th June,
In the affidavit in rejoinder, the Respondent claims that there are
ig
27]
2014.
admissions with regard to the settled possession of the Respondent in
respect of the suit flat. The Respondent states that the Appellant No.1 has
admitted that whenever the Respondent was in Mumbai, he resides at the
suit flat. The visits are referred and what is crucial according to the
Respondent, is the admission, that the keys to the suit flat prior to 23 rd
April, 2011 were with the Respondent and not with the Appellant No.1.
Therefore, the claim of exclusive possession is admitted. Then, Exhibit E5
to the plaint is the email sent by Appellant No.1 in which the Appellant
No.1's admitted that the Respondent had free and unrestricted use of the
suit flat. There is an admission, further, that after marriage with the
Appellant No.2 in 1971 an Appellant No.1 has left the suit flat and not
residing therein. These extensive references to the pleadings have been
made in paragraph 4(c) of the affidavit in rejoinder.
Thereafter, it is asserted that the Respondent is in settled possession
28]
and the suit is based on the exclusive and settled possession of the
Respondent. In such circumstances and asserting that the Respondent has
been deprived of effective enjoyment of the suit flat, for the reasons which
are set out in para 4(g) that the rejoinder reiterates the case of the
Respondent. It also reiterates the plea that the Respondent has been
paying rent to the landlord since the death of his father, namely, from
ig
1998. The other expenses have also been incurred by the Respondent.
We need not refer to the denials in the rejoinder except the position with
regard to the bedrooms and the bathrooms set out in para25 of the
rejoinder.
29]
This affidavit was filed in August 2011. There is another affidavit
inreply filed on 30th September, 2011 by the Appellants but it reiterates
the stand taken earlier.
30]
It is pertinent to note that on this Notice of Motion, a adinterim
order was passed by this Court on 15 th June, 2011. That order reads as
under:
“1. The learned counsel appearing on behalf of the
defendants confirms that the plaintiff is in exclusive occupation
and possession of two bedrooms in the suit premises the
Then, the report of the Court Commissioner has been placed on
31]
balcony and the bathrooms shown in red hatch lines on the
floor plan, tendered in Court, taken on record and marked “X”.
Rest of the flat other than one bedroom is, even according to
the defendants used in common by the parties.
2.
Mr.Kotwal states that these bedrooms are in very poor
condition and that the plaintiff cannot live in the same.
The Prothonotary & Senior Master shall appoint an
officer of this Court to inspect the suit premises and make a
report. The report shall furnish the condition of each of the
rooms. The officer shall be entitled to avail of the assistance of
a photographer. The costs of the officer shall initially be paid
equally by the plaintiff on the one hand and the defendants
on the other and shall be subject to the final orders.
Stand over after two weeks.”
record and the same reflects that there are bedrooms with attached
toilets/bathroom and a bathroom which has been indicated in the report,
has the amenities and facilities for the purposes of usage by a physically
handicapped person. There is also a floor plan and which is an Annexure
of the report (AnnexureIII). This shows the bedrooms which have been
used by the Appellants and the Respondents. It shows the other amenities
in the suit flat.
32]
It is, on this material, that the Notice of Motion was placed for
hearing and final disposal before the learned Single Judge of this Court
and by the impugned order he has allowed it.
Aggrieved and dissatisfied with this order, the present Letters Patent
33]
34]
Appeal has been filed.
Mr. Madon, learned Senior Counsel, appearing in support of this
Appeal submitted that the impugned order is contrary to law. It is
completely erroneous inasmuch as the suit itself is decreed at the
interlocutory stage. Mr. Madon, has invited our attention to our judgment
on the point of jurisdiction and particularly para79 thereof to urge that
the suit has been labeled as not based on the residence of a member of the
family with the original tenant at the time of his/her death and to the
exclusion of other members. The learned Single Judge while answering
the issue of jurisdiction had held that this case is of a dispute between two
heirs of the deceased tenant and both claiming the tenancy rights to the
exclusion of the other. In other words, this is an assertion of succession to
the tenancy rights in respect of the said suit flat by one heir to the
exclusion of other. This is an interse dispute between two persons who
are the heirs of the deceased tenant and not agreeing as to who amongst
them or one of them would succeed to the tenancy rights.
35]
Mr. Madon submits that such observations have been made by us in
para 79 and 80 of our judgment. He submits that para 102 of our
Mr. Madon submits that learned Single Judge in passing this
36]
judgment would also be relevant on this aspect.
impugned order and making the Notice of Motion absolute in terms of
prayer clause (a) has lost sight of this vital aspect. In that regard, our
attention is invited to paragraph No.8 of the impugned order by Mr.
Madon. He submits that the observation in paras 8, 12 and the operative
part in the learned Single Judge's order, would demonstrate that today the
Appellant's stand completely excluded from the suit flat. Now, even after
there is a dispute with regard to the succession to tenancy rights between
two heirs, the Appellants admittedly being heirs have been restrained from
entering upon, remaining or using the suit flat. The Commissioner's report
indicates that there are 2 bedrooms with attached bathrooms, there is a
pooja room and there is a common area. In such circumstances, and when
the learned Judge has not gone into the question as to who amongst the
Appellants and the Respondents would prima facie succeed to the tenancy
rights, then, the impugned order cannot be sustained. Mr. Madon has
taken us through the plaint averments to support his arguments about the
frame of the suit. He submits that if such vital issues are left unanswered
by the learned Single Judge, then, the impugned order must be set aside
or alternatively, the Notice of Motion must be decided again.
Alternatively and without prejudice to the above submissions,
37]
Mr. Madon submits that the RespondentPlaintiff has failed to make out a
strong prima facie case of his settled and exclusive possession. He
submitted that the learned Judge could not have granted any relief in the
suit of the present nature and in the absence of strong prima facie proof, a
final relief cannot be granted at an interlocutory stage. He submits that if
the prayers in the suit are considered, then, no temporary injunction or
relief in aid of the final relief can be granted. This is not a case of the
RespondentPlaintiff being allegedly dispossessed and wrongfully. If the
suit claim is essentially of damages, then, the reliefs as prayed cannot be
granted at an interlocutory stage. Mr. Madon submits that prayer clause
(a) of the Suit is for damages and that is a money claim. Prayer clause (b)
is for a permanent injunction but there is no declaration claimed
preceding the same. If prayer clause (b) is the final relief in the plaint,
then, that cannot be granted at an interlocutory stage unless there is a
prima facie case and the balance of convenience is wholly in favour of the
RespondentPlaintiff and that grave and irreparable harm and injury will
be caused in case such a relief is not granted. Mr. Madon submits that the
claim of the RespondentPlaintiff in the suit could have been protected by
an appropriate arrangement at an interlocutory stage so as not to oust the
parties from the suit flat. During the pendency of the suit, the subject
matter thereof could have been protected by such arrangement as was
permissible in law including preventing the alienation of the flat or its
disposal by the parties. However, a mandatory order and injunction that is
granted has nonsuited the Appellants completely.
38]
Mr. Madon has, then, taken us through the documents relied upon
by the RespondentPlaintiff to demonstrate his settled and exclusive
possession. Mr. Madon submits that no rent is paid in respect of the suit
flat by the Respondent to the exclusion of the Appellant No.1. There is
absolutely no case of exclusive residence as well. A servant is stated to be
residing in a portion of the flat and allegedly to take care of it. The
possession of the servant cannot be said to be exclusive in such
circumstances, even if, that servant is engaged or employed by the
Respondent. The Respondent himself is not an Indian citizen. He is
permanently residing in U.S.A. His intermittent visits to the flats and India
cannot, therefore, be said to be proving his exclusive settled possession. In
fact, the documents such as bank account extract, the telephone bills,
electricity bills which are produced would show that the learned Judge
could not have relied upon them at an interlocutory stage as the same
carry the name of the deceased tenant B. N. Adarkar and not of the
RespondentPlaintiff. The rent receipts were not transferred in the name
of the RespondentPlaintiff though he claims who have been paying the
rent in respect of the suit flat. The claim of the RespondentPlaintiff to
settled possession is belied by an affidavit filed by him seeking a probate
of the will of the late mother of the Appellant No.1 and Respondent. In
that, it is admitted by the Respondent that he resides in U.S.A. He is an
executor of the estate of the deceased. The rent has been paid by him in
this capacity. The Probate Proceedings are contested. In these
circumstances and when there is no document produced which would
conclusively demonstrate such claim of settled possession, then, the
learned Judge should have refused the prayer and rather continued the
adinterim order which was passed by this Court on 15th June, 2011.
39]
For all these reasons, Mr. Madon submits that the impugned order
deserves to be quashed and set aside. Mr. Madon has relied upon the
compilation of documents which was produced before the learned Single
Judge. Mr. Madon also submits that the email relied upon should be read
in its entirety and not picking one or two sentences therefrom. In fact, the
emails from the Respondent would show that they are not emanating from
the address of the suit flat. The email that has been produced at page 345
of the paper book would show that the Respondent has been coming to
Bombay only on a few occasions. He was not a regular visitor to Bombay
leave aside being such visitor to the flat. In such circumstances and when
the claim of the Appellant No.1 as being a tenant of the flat property, has
been admitted, then, this Notice of Motion should have been dismissed.
The impugned order, therefore, must be set aside. Mr. Madon relies upon
the following judgments and decisions in support of his above
contentions:
1) Mahavir Associates V/s. Anthony reported in 2014 (1) Mh. L.J.
ig
86;
2) Dorab Cawasji Warden V/s. Coomi Sorab Warden And Others
reported in (1990) 2 Supreme Court Cases 117;
3) Mohd. Mehtab Khan And Others V/s. Khushnuma Ibrahim Khan
And Others; and
4) Anathula Sudhakar V/s. P Buchi Reddy (Dead) By LRS. And
.
Others reported in (2008) 4 Supreme Court Cases 594.
On the other hand, Mr. Tulzapurkar, learned Senior Counsel,
40]
appearing on behalf of the RespondentPlaintiff submitted that the Appeal
should be dismissed. He submits that the view taken by the learned Single
Judge is a plausible and possible view. It does not require any interference
in this Courts further appellate jurisdiction. He has invited our attention to
paragraphs 8 and 9 of the impugned order. He submits that this finding is
inconsistent with the pleading and particularly paragraph 10 of the plaint
at page 290. The case pleaded thus, is not only of tenancy but that the
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RespondentPlaintiff is the only person entitled to succeed to the same, is
the position emerging from certain undisputed events. Mr. Tulzapurkar
submits that a proper and fair reading of the plaint would disclose that the
RespondentPlaintiff pleaded his settled possession and to the exclusion of
the original Defendant No.1Appellant No.1 before this Court. Mr.
Tulzapurkar submits that at an interlocutory stage, learned Judge was not
called upon to express any prima facie opinion much less render any
ig
conclusive finding on the issue of succession to the tenancy rights. That
cannot be decided at the interlocutory stage. The learned Judge has not
ignored the case of Appellant No.1 as set out in the affidavits. However,
the argument was that the Defendant No.1 barged into the premises,
namely, suit flat. She was never in possession of the suit flat after the
death of the mother. She has failed to show even, prima facie, that she
retained control or was in possession of the premises which are subject
matter of the suit. Mr. Tulzapurkar has invited our attention to certain
documents from the compilation tendered by the original Defendants and
particularly pages 85 and 88 thereof. He has submitted that the requisite
tests which enable the Court to pass the interim order in this form and
manner are satisfied and in that regard he relies upon the pages 347 and
348 of the paper book and which would indicate that the possession as
also the control of the suit flat with the Respondent No.1. In these
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circumstances and when the Appellant No.1 is not disputing joint tenancy
of the Appellant No.1 and the Respondent in respect of the suit flat, then,
the Notice of Motion was rightly made absolute. Mr.
Tulzapurkar submits that the Defendant No.1 entered the suit flat for the
first time in the month of April 2011. She had left the premises and that is
apparent from the contents of the affidavit particularly page 95 of the
paper book. Then, our attention is invited to the fact that the Defendant
ig
No.1 never resided in the suit flat. The intermittent visits also stopped
after the death of the parents. In such circumstances, when the
Respondent No.1 is in juridical possession and which is to the knowledge
of the Appellant No.1, then, the learned Judge's order cannot be faulted.
The Appeal, therefore, should be dismissed. Mr. Tulzapurkar has also
relied upon the supporting affidavit of Mr. Y. H. Malegam and even the
letter, copy of receipt of which is at AnnexureH, page 355 of the paper
book.
41]
In support of the above contentions, Mr. Tulzapurkar has relied on
the following judgments:
1) Krishna Ram Mahale (Dead) By His LRS. V/s. Mrs. Shobha
Venkat Rao reported in (1989) 4 Supreme Court Cases 131;
2) Rame Gowda (Dead) By LRS. V/s. M. Varadappa Naidu (Dead)
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By LRS. and Another reported in (2004) 1 Supreme Court Cases
769;
3) Variegate Realestate Private Limited V/s. Tehmul R. Irani and
Mehervan R. Irani reported in 2011 Vol. 113 (1) Bom. L.R.
0449;
4) Order of Hon'ble Supreme Court dated 10th December, 2010 in
the case of Tehmul Rustom Irani & Anr. V/s. Variegate Real Estate
P
. Ltd.; and
5) T. Lakshmipathi and Others V/s. P Nithyananda Reddy and
.
With the assistance of the learned Senior Counsel, appearing for
42]
ig
Others reported in (2003) 5 Supreme Court Cases 150.
parties, we have perused the Appeal paper book including the affidavits
filed in reply, rejoinder and further affidavits of parties. We have perused
the relevant documents from the compilation. We have also perused the
impugned order.
43]
The learned Judge has proceeded to grant interim reliefs in terms of
prayer clause (a) and which is widely worded. The prayer is to grant an
injunction against the Appellants from entering upon or remaining on the
suit flat or any part thereof without the permission of the Respondent
Plaintiff. This prayer is identical to prayer clause (b) of the plaint (see
page 303). Thus, a permanent injunction is claimed in the above terms in
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the plaint and in the Notice of Motion for interim reliefs a temporary
injunction in identical form is prayed. The suit is in effect for possession
of the suit flat and to be exclusion of the other heir of the deceased tenant.
A prayer of the nature made, prima facie, is to obtain such exclusive
possession though couched in the form of a mandatory injunction. If the
Respondent establishes finally that he is the only heir entitled to succeed
to the tenancy rights, then, alone he can obtain the above relief. That
ig
inquiry and adjudication will be duly at the Trial. Today, when the
Respondent is also prima facie pleading a case of joint tenancy, then, he
cannot oust the other heir, his real sister from the suit flat at an
interlocutory stage. More so, when the inquiry as above is yet to be held.
Further, the settled possession as claimed and to the exclusion of the
Appellant No.1 must also be seen in this light and the admitted
circumstances of both parties residing and independently far away from
the suit flat. The Respondent is not residing therein continuously. He
does not work for gain in Bombay. Some visits to Mumbai and in
connection with the affairs of the Estate, prima facie, does not amount to
continued, settled possession of the suit flat much less to the exclusion of
the Appellant No.1. While there is no impediment in law in granting a
mandatory injunction at an interlocutory stage or a temporary injunction
in a mandatory form, yet, such reliefs should be granted in exceptional
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circumstances. Both sides have placed reliance on the judgment of the
Hon'ble Supreme Court in the case of Dorab Cawasji Warden (supra).
Having perused that judgment carefully, we are of the opinion that the
Hon'ble Supreme Court has referred to the tests which have to be applied
and which must be satisfied before such a relief is granted. The tests are
laid down in para 16 of the judgment in the case of Dorab Cawasji
44]
ig
bearing in mind these guidelines.
Warden (supra). Thus, the discretion has to be exercised judiciously and
We have considered this matter in the backdrop of these very tests
and guidelines laid down by the Hon'ble Supreme Court. We are also quite
aware of the other set of principles laid down by the Hon'ble Supreme
Court and which are reiterated in the recent decision in the case of Mohd.
Mehtab Khan and others V/s. Khushnuma Ibrahim Khan and others
(2013) 9 SCC 221. An Appellate Court must be slow to interfere with a
discretionary order of the trial Court granting temporary injunction. The
order must not be interfered with only because another view of the matter
is possible. The order must be interfered with only if the exercise of
discretion by the learned Judge was found to be palpably incorrect or
untenable. The Hon'ble Supreme Court, therefore, has cautioned that the
Appellate power is not to be exercised as a matter of course but the tests
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We have, therefore, cautiously and carefully perused the order of
45]
in that behalf have been referred to in para 17 of this judgment.
the learned Single Judge. We are aware that a learned Single Judge of
this Court in exercise of the original jurisdiction of this Court, has
considered the prayer for interim relief. However, for the reasons that we
indicate hereafter, we are unable to agree with the learned Single Judge.
ig
In our opinion, the learned Single Judge has lost sight of the tests and
legal principles in granting such a wide relief. That relief virtually decrees
the suit itself. While the Hon'ble Supreme Court does not hold that grant
of a final relief at an interlocutory stage is totally prohibited but what the
Hon'ble Supreme Court indicates is that such relief should be granted
when the same is in aid of the final relief. If the subject matter of the suit
or the proceedings can be preserved and protected by the interim
arrangement which would balance the case of both sides, then, this is an
exercise which should be carried out. Granting of virtually the final relief
at an interlocutory stage, without a trial, without an opportunity to the
party to lead oral and documentary evidence is, therefore, not justified.
46]
In the present case, Mr. Madon has rightly placed reliance on the
foundation or basis of the Respondent's grievances in the plaint. The
Respondent admittedly is not residing permanently in India. He has
obtained and has been granted a citizenship of the United States of
America. He is a person who was in service and on account of which he
had to travel and settle down in the above referred countries. That his
father was a tenant in respect of the suit flat is not disputed. That his
father died in the year 1998 and thereafter the affairs in relation to the
property were looked into and managed by the RespondentPlaintiff is not
disputed either. That the mother resided in the suit flat till her death but
what the RespondentPlaintiff has essentially pleaded is not a claim of
tenancy on the footing of his residence with and at the time of the death
of the original tenant, namely, his father and mother. He has pleaded that
he is one of the heirs of the parents. In preference to other heir of his
parents, namely, his real sister, Appellant No.1, it was the wish and desire
of his parents that he must succeed to the tenancy rights. That is the basis
on which the plaint proceeds and, therefore, the dispute is as to who
succeeds to the tenancy rights in respect of the suit flat after the death of
the original tenant. In such a suit, if the injunction as claimed, has to be
granted, then, the RespondentPlaintiff ought to have placed before the
Court enough material to indicate that his possession in the suit flat was
exclusive and not intermittent. That he visited and resided in the suit flat
on more occasions than the Appellant No.1 is, thus, prima facie not
conclusive. The Appellant must have produced a strong prima facie proof
of his possession of the suit flat and to the exclusion of the Appellant No.1.
That material is found to be lacking, prima facie. In that regard, the
learned Single Judge has relied upon the rent receipts from the time of the
mother's death in August 2001 till the date of the alleged trespass by the
original Defendants. These according to the learned Judge show that for
the last more than 10 years, it is the RespondentPlaintiff who has paid the
ig
rent by cheque and rent receipts have been issued to him by the landlord,
though in the name of his deceased father. In that regard, what we find
from perusal of these bills is that they have been issued in the name of the
deceased father. Each of these bills and which have mentioned the cheque
number and the date and the period indicate the name of Mr. B. N.
Adarkar. If, these rent receipts from Annexures CI onwards are carefully
perused, they do not in any manner indicate that the rent receipts have
been transferred after the death of the father either in the name of the
mother or thereafter in the name of the RespondentPlaintiff. In fact, no
document has been placed on record making such a request and
emanating from the RespondentPlaintiff. Thus, the monthly rent receipts
and payment made by cheque, by the RespondentPlaintiff, are not enough
to show the settled and exclusive possession. The bank account of the
RespondentPlaintiff may show the address of the suit flat and equally the
telephone bills and electricity bills but they do not indicate his exclusive
and settled possession. That there are certain documents in the form of
communications and letters would only show that the RespondentPlaintiff
indicated the address of the suit flat for the purposes of correspondence
and communication with him. That is to indicate the place where he can
be contacted and communicated in India. However, in the backdrop of his
own case as set out in the plaint, this material can never be said to be
decisive and even prima facie. In that regard, what we find from a
reading of the plaint itself is that the parents, the Defendant
No.1(Appellant No.1) and the RespondentPlaintiff together with their
brother Vivek B. Adarkar resided in this flat since December 1965. The
Respondent'sPlaintiff's father was a Deputy Governor of the Reserve Bank
of India. That the tenancy dates back to 1969 is set out in para 3 of the
plaint.
47]
We have referred to the plaint averments in extenso in the foregoing
paragraphs of this judgment only to satisfy ourselves as to whether any of
the materials referred to by the learned Single Judge can be said to be
prima facie conclusive and to establish exclusive and settled possession as
claimed by the RespondentPlaintiff. Upon these materials at best, it can
be inferred that the RespondentPlaintiff was taking care of and managing
the property after the death of his parents. By paying the amounts such
as rent, maintenance and salaries of the servant and staff so also paying
visits, the RespondentPlaintiff was safeguarding and protecting the rights
claimed in the suit flat. That he had a set of keys for the purpose of
accessing the flat and which were retained by him does not mean that he
was in exclusive possession. His possession, therefore, cannot be said to
Apart therefrom, when we understand the controversy between the
48]
ig
be of the nature and character claimed by him.
parties to be of the nature noted above, namely, succession to tenancy
rights after the death of the parents, then, it is really immaterial as to
whether the RespondentPlaintiff is in possession of the suit flat and after
the marriage of the Appellant No.1 and her departure therefrom. We have
noted that this controversy is not as to who was residing with the
deceased tenant at the time of the death but amongst several heirs who
would succeed to the tenancy rights. Until and unless that issue is
decided and at the trial all that was required to preserve the subject
matter of the dispute. With respect, the learned Judge has clearly missed
this point. Moreover, we also find that the reliance placed by the learned
Judge on the affidavit of the servant Shashikant Solkar is entirely
misplaced. The learned Judge himself has referred to the contents of this
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affidavit. The affidavit indicates that the servant was employed by
RespondentPlaintiff since June 2006. He resides in the suit flat with his
family. That affidavit has been carefully perused by us and we do not find
that the same can establish the continued and exclusive possession of the
RespondentPlaintiff. The affidavit of the neighbour cannot be said to be
conclusive at this prima facie stage and in the teeth of the case of the
RespondentPlaintiff as set out in the plaint. The RespondentPlaintiff
ig
himself has not disputed his employment and his engagement and service
rendered abroad throughout. He has not disputed the acquisition of
citizenship of United States of America. Having only visited the flat
during the lifetime of his parents and thereafter intermittently does not
prima facie mean that the settled and exclusive possession is established
by any means. There is no necessity than to see whether the Appellant
No.1 resided in the flat. That she has been visiting her parents is clear
from the assertions in the plaint. Further, we find that her reliance placed
on the contents of the Probate Petition is appropriate. The acquisition of
the U.S. Passport and citizenship is established by the fact that the
RespondentPlaintiff states therein that he left India for U.S.A. in 1992
leaving his parents who were residents of Mumbai. Since then, he has
been a permanent resident of U.S.A. It has been stated in para 3 of this
affidavit dated 26th July, 2005 verified at the Indian Embassy in
Washington D.C. which formed part of Probate Petition No.39 of 2005 that
after being informed of the imminent demise of the mother, the
Respondent visited Mumbai in August 2007 for the funeral and other
obsequial ceremonies pertaining to the deceased. The mother passed
away on 28th August, 2001. Then, it is stated in this affidavit that the
RespondentPlaintiff left for U.S.A. in mid September 2001 or thereabouts.
He visited Mumbai very briefly few times and during his brief stays he
could not obtain legal advice and only when he visited Mumbai in
September 2004 he consulted the advocate regarding formalities of
obtaining a probate. Thus, when the RespondentPlaintiff does not
dispute that from 1967, 1968 to 1970 he lived in U.K., thereafter in Delhi,
thereafter on several assignments firstly in Manila, Philippines and
thereafter in U.S.A., any occasional or intermittent visit, therefore, could
not be said to be establishing the settled possession prima facie. Apart
therefrom, the case of trespass by the Appellant No.1 is not established in
this case as being a heir of the deceased tenant and whose joint tenancy is
also admitted prima facie, it cannot be said that she is a rank trespasser.
That she entered the suit flat after a long duration and on account of some
differences and disputes cannot, therefore, give a right to the Respondent
to exclude her from possession at an interlocutory stage. He cannot, on
the case as summarized by us above, be entitled to a temporary injunction
in mandatory form particularly in terms of the prayer clause (a)
49]
reproduced above.
In the above circumstances, we are of the opinion that the learned
Single Judge was in clear error in allowing the Notice of Motion.
The reliance placed by the learned Single Judge on the judgments
50]
ig
for granting the above prayer is some what misplaced. In para 13 of the
order under challenge, the learned Judge who was aware of the decision
on the preliminary issue proceeds to term the Appellants possession as
wrongful. The learned Judge has accepted the case of trespass by
Appellants and as pleaded by the Respondent. The learned Judge has
proceeded to hold that the Respondent is in exclusive possession. Once
the Respondent was not able to establish a prima facie case of settled and
exclusive possession, then, the reliance placed on the judgments and
noted in paragraphs 11 to 14 was not appropriate. The reliance placed by
the learned Judge on the judgment of the Supreme Court in the case of
Rame Gowda (Dead) By LRS. V/s. M. Varadappa Naidu (Dead) by LRS.
and another reported in (2004) 1 Supreme Court Cases 769 was not
appropriate. In the case of Rame Gowda (supra) the facts were that a
suit was filed alleging title so also possession over the disputed piece of
land. The trial Court found that although the Plaintiff had failed to prove
his title, he had succeeded in proving his possession over the suit property
which he was entitled to protect unless dispossessed therefrom by due
process of law. On this finding, the injunction was issued against the
Defendant restraining him from interfering with the peaceful possession
and enjoyment of the Plaintiff over the suit property. The Defendants
Appeal has been dismissed throughout. It is in that regard that the
Hon'ble Supreme Court refers to some tests which have been evolved over
a passage of time. In the case of Rame Gowda (supra) the possession was
undisputed. Paragraphs 8 and 9 on which reliance was placed laid down
the principle that the person in peaceful possession is entitled to retain his
possession and in order to protect such possession he may even use
reasonable force to keep out a trespasser. We do not see how any
assistance can be derived from these observations and conclusions for the
Hon'ble Supreme Court itself clarifies that the possession must be settled
possession, extending over a sufficiently long period of time and
acquiesced to by the true owner. In the present case, this test has not
been satisfied for the Appellant No.1, cannot be said to be a trespasser.
Secondly, by not asserting her right as a heir of the deceased tenant, she
could not have prima facie acquiesced in the position, as claimed by the
Respondent. The possession of the Respondent was not settled inasmuch
as the Hon'ble Supreme Court itself clarifies that an occupation of the
property by a person as an agent or a servant acting at the instance of the
owner will not amount to actual physical possession. The physical
possession in this case even applying these standards was not settled.
51]
Once this aspect is clarified, then, no assistance can be derived from
the order of the Division Bench in the case of Variegate Realestate
Private Limited V/s. Tehmul R. Irani and Mehervan R. Irani reported
in 2011 Vol.113 (1) Bom. L.R. 0449. It is in these circumstances that we
find that there was substance in the objection raised by the Appellants that
an interim order which practically amounts to granting a final relief at the
interim stage should not be passed. In this regard, a reference can be
made to the judgment of the Hon'ble Supreme Court in the case of Mohd,
Mehtab Khan and Others V/s. Khushnuma Ibrahim Khan and Others
reported in (2013) 9 Supreme Court Cases 221. There, the Hon'ble
Supreme Court held thus:
“17. While the bar under section 6(3) of the SR Act may not
apply to the instant case in view of the initial forum in which
the suit was filed and the appeal arising from the interim order
being under the letters patent issued to the Bombay High Court,
as held by a Constitution Bench of this Court in P
.S. Sathappan
V/s. Andhra Bank Ltd., what is ironical is that the correctness of
the order passed in respect of the interim entitlement of the
parties has reached this Court under Article 136 of the
Constitution. Ordinarily and in the normal course, by this time,
the suit itself should have been disposed of. Tragically, the logical
conclusion to the suit is nowhere in sight and it is on account of
the proverbial delays that have plagued the system that interim
matters are being contested to the last Court with the greatest of
vehemence and fervour. Given the ground realities of the
situation it is neither feasible nor practical to take the view that
interim matters, even though they may be inextricably
connected with the merits of the main suit, should always be
answered by maintaining a strict neutrality, namely, by a
refusal to adjudicate. Such a stance by the Courts is neither
feasible nor practicable. Courts, therefore, will have to venture
to decide interim matters on consideration of issues that are best
left for adjudication in the full trial of the suit. In view of the
inherent risk in performing such an exercise which is bound to
become delicate in most cases the principles that the Courts
must follow in this regard are required to be stated in some
detail though it must be made clear that such principles cannot
be entrapped within any straitjacket formula or any precise laid
down norms. The Courts must endeavour to find out if interim
relief can be granted on consideration of issues other than those
involved in the main suit and also whether partial interim relief
would satisfy the ends of justice till final disposal of the matter.
The consequences of grant of injunction on the defendant if the
plaintiff is to lose the suit along with the consequences on the
plaintiff where injunction is refused but eventually the suit is
decreed has to be carefully weighed and balanced by the Court
in every given case. Interim reliefs which amount to pretrial
decrees must be avoided wherever possible. Though experience
has shown that observations and clarifications to the effect that
the findings recorded are prima facie and tentative, meant or
intended only for deciding the interim entitlement of the parties
have not worked well and interim findings on issues concerning
the main suit has had a telling effect in the process of final
adjudication it is here that strict exercise of judicial discipline
will be of considerable held and assistance. The power of self
correction and comprehension of the orders of superior forums
in the proper perspective will go a long way in resolving the
dangers inherent in deciding an interim matter on issues that
may have a close connection with those arising in the main suit.
18. There is yet another dimension to the issues arising in the
present appeal. The interim relief granted to the plaintiffs by
the appellate Bench of the High Court in the present case is a
mandatory direction to hand over possession to the plaintiffs.
Grant of mandatory interim relief requires the highest degree of
satisfaction of the Court; much higher than a case involving
grant of prohibitory injunction. It is, indeed, a rare power, the
governing principles whereof would hardly require a reiteration
inasmuch as the same which had been evolved by this Court in
Dorab Cawasji Warden V/s. Coomi Soran Warden has come to b
firmly embedded in our jurisprudence.”
Though both sides have relied on this judgment for different
52]
reasons, what we find is that the Hon'ble Supreme Court has emphasized
the principle that the Courts do not as a matter of course venture to
decide interim matters on consideration of issues that are best left for
adjudication in the full trial of the suit. There is an inherent risk in the
same and, therefore, such issues can be kept out of consideration and the
prayer for interim relief considered and granted on other issues. Meaning
thereby, leaving out those which require adjudication in the full trial of the
suit. The Courts must endeavour to find out whether partial interim relief
would satisfy the ends of justice till final disposal of the matter. A
balancing has to be done and as has been held in the aforesaid paragraphs
by the Hon'ble Supreme Court.
53]
We are of the opinion that this is not a case where we are
interfering with a discretion exercised by the learned Single Judge only
because another view is possible. We have found that the discretion has
not been exercised by applying the settled principles of law. The materials
have not been reassessed in order to reach a conclusion different from the
learned Single Judge but to find out as to whether the discretion could
have at all been exercised in favour of the RespondentPlaintiff. Since the
materials before the learned Single Judge do not lead to a prima facie
conclusion of the Respondent's settled possession and given the nature of
the controversy and dispute, the learned Single Judge was not justified in
granting such a wide and broad interim relief, that we are constrained to
interfere in our appellate jurisdiction. There is a serious doubt as to
whether such a interim injunction could have been granted. In the given
facts and circumstances, the view taken by the learned Single Judge
cannot be termed as a possible one. Therefore, we are not in agreement
with Mr. Tulzapurkar that the appellate jurisdiction cannot be exercised to
upset or reverse the impugned order. We are of the opinion that the
learned Single Judge could have disposed of the Notice of Motion by
maintaining the position as emerging from the report of the Court Officer.
The report of the Court Officer indicates the area of the flat, its division
into living room, kitchen, dinning area/room and bed rooms with attached
bathrooms. They were enough for the purposes of use by the parties
during the pendency of the suit. The learned Judge could have, therefore,
directed that the said position be maintained till the disposal of the suit by
both sides and by additionally restraining them from creating any third
party right or inducting any third party in possession in any manner till
the disposal of the suit. While setting aside and quashing the impugned
order and allowing the Appeal, we direct as under;
(A) Notice of Motion No.1548 of 2011 is disposed of with a
direction that the parties shall, in terms of the Annexure III to
ig
the report of the Court Officer, use and occupy the bed rooms.
The bed rooms which are indicated therein can be used with
attached bathroom and with facility for the disabled. They
can be used by the respective parties. The Respondent is
allowed to use and occupy the bed room with attached Toilet
containing facility for a disabled or physically incapacitated
person.
(B) The adinterim order passed on 15 th July, 2011 is, thus,
directed to be continued till the hearing and final disposal of
the suit. The RespondentPlaintiff can use and occupy two bed
rooms in the suit premises, the balcony and bathroom shown
in red hatch lines on the floor plan, tendered in Court, taken
on record and marked “X”. The other bed room as marked on
the plan shall be used by the Appellants and with the attached
bathroom. In order to enable them to access the flat, the set of
keys to the main door be made and retained by both sides.
They can place their own locks on the bed room earmarked
for their use. However, the common area can be accessed by
both.
(C) The Appeal is allowed accordingly. No costs.
(D) We clarify that our order shall not be held to be binding
on the learned Single Judge trying the suit. All observations
are tentative and prima facie. The Suit be decided
uninfluenced by the same. Since parties are senior citizens,
the hearing of the Suit is expedited.
(S.C. DHARMADHIKARI, J.)
(G. S. KULKARNI, J.)
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