IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2017 OF 2009 IN SUIT NO.855 OF 2001 WITH NOTICE OF MOTION NO. 3081 OF 2009 IN SUIT NO.855 OF 2001 Saga Department Stores Ltd. ... Plaintiff Vs. Falak Home Developers Pvt.Ltd. ....Defendant ----- Dr.Veerendra Tulzapurkar a/w. Anjal Amin and N.B.Amin i/b. B.Amin and Co. for Plaintiff Mr. S.U. Kamdar, Senior Advocate a/w.Mr. Mukul Taly,Rakesh Misar, Rahul Pujari, Shaikh Yusuf i/b. S. Mohamedbhai & Co. for Defendant. ----- CORAM: V.M. KANADE J. DATED: 17TH SEPTEMBER, 2009 P.C. 1. The Notice of Motion no. 2017 of 2009 is taken out by the Plaintiff seeking an order of injunction restraining the Defendant to proceed with the L.E.C. Suit No.6/12 of 2003 filed in the Small Causes Court for ejectment of the Plaintiff. 2. Notice of Motion No.3081 of 2009 is taken out by the Defendant, praying for dismissal of the suit on the ground that it discloses no cause of action against the Defendant and for rejection of the plaint. 3. Brief facts are as under: The Plaintiff has filed the suit against the Defendant for specific performance of the agreement of sale dated 1st April, 1999. This suit was filed on 13.3.2001. The Plaintiff and Defendant entered into two separate agreements dated March/April,1999 in respect of the suit property. One was the agreement for sale dated 1.4.1999, in which Plaintiff had agreed to purchase the suit property for total consideration of Rs.24,60,00,000/- and an amount of Rs.97,00,000/- was paid at the time of execution of the agreement and it was agreed that the balance was to be paid in installments upto 31st December, 2004. The second agreement was a leave and licence agreement in respect of the suit property and it was agreed that the Plaintiff would pay a nominal rent of Rs.50,000/- p.m. for the entire building. According to the Plaintiff, this leave and licence agreement was entered only to confirm that the possession was transferred to the Plaintiff. 4. On 12.1.2001, the Defendant terminated the leave and licence agreement. The Plaintiff initially filed the suit No. 219 of 2000 on 18.1.2000 in this Court for declaration of notice of termination to be bad in law. This suit, however, was withdrawn since it was felt that this Court did not have jurisdiction to try and decide the said suit. Accordingly, the said suit was withdrawn on 17.4.2001. After the present suit was filed. 5. The Plaintiff filed a suit in the Small Causes Court vide R.A.D. Suit No.52 of 2000 for declaration of tenancy / irrevocable licence of the suit premises. 6. Agreement of sale was terminated by the Defendant sometime on or about 7.4.2000 and, therefore, the present suit was filed by the Plaintiff. In this suit, initially, the Plaintiff took out the Notice of Motion No.765 of 2001 for an order of injunction restraining the Defendant from dispossessing the Plaintiff without following due process of law. In the Notice of Motion, the statement has been made by the Defendant that he would file a suit for eviction against the Plaintiff in the Small Causes Court and in view of this statement, the Notice of Motion was withdrawn by order dated 1.8.2003. Accordingly, the Defendant filed eviction suit against the Plaintiff. The Plaintiff is seeking an order of injunction restraining the Defendant from proceeding further in the said suit. 7. Shri Veerendra Tuljapurkar, Senior Counsel appearing on behalf of the Plaintiff submitted that the present suit was filed by the Plaintiff prior in point of time to the suit filed by the Defendant in the Small Causes Court. He further submitted that if the Plaintiff s suit filed in this Court was allowed, the suit filed by the Defendant in the Small Causes Court would become infructuous since the Plaintiff would be declared to be the owner and thereby have title to the said property. Secondly, he submitted that the conduct of the Defendant was such that they were not entitled to proceed further with the eviction suit. The writ of summons was served on the Defendant on 21.1.2001, however, no vakalatnama or written statement was filed after the service of the writ of summons. He submitted that the Plaintiff had took out the Notice of Motion for judgment for want of written statement vide Notice of Motion No.1223 of 2007 and it was only thereafter, the Defendant took out the Notice of Motion 1303 of 2008 for condonation of delay. It was submitted that the Defendant had deliberately not filed the written statement for a period of six years and as a result, the Plaintiff s suit could not be heard and decided by this Court. He submitted that this Court was pleased to condone the delay and the Defendant s Notice of Motion was made absolute. The Appeal filed against this order was dismissed. SLP was also dismissed. Directions, however, have been given by the Apex Court to expedite the suit. He, therefore, submitted that the Plaintiff was entitled to seek an order of injunction restraining the Defendant from proceeding with the eviction proceedings. He submitted that this Court could grant such an order of injunction while exercising its original jurisdiction. In support of the said second submission, he relied on the judgment of the Learned Single Judge of this Court in the case of William Jacks & Co. (India) Ltd., vs. Nilima Dinesh Prasad and others reported in AIR 1992 Bombay 126. He invited my attention to the said judgment of the Learned Single Judge after referring to the judgment of the Full Bench of this Court reported in AIR 1915 Bombay 146 (FB)and earlier judgments of this Court reported in (1908) 10 Bom LR 1141, and a judgment of Calcutta High Court reported in (1907) ILR 34 Cal 97 and also another judgment of Bombay High Court reported in AIR 1943 Bombay page 206, had held that the Court while exercising jurisdiction on the original side has jurisdiction to grant an order of injunction restraining the Defendant from proceeding the suit in the sub-ordinate Court and more particularly, the Small Causes Court at Bombay, functioning as a Court of exclusive jurisdiction under section 28 of the Bombay Rent Act, 1947. He also relied on the judgment of another Learned Single Judge of this Court in the case of Babu Rasul Mujawar vs. Sadashiv Govind Hazare & Ors. reported in AIR 2006 Bombay 305 in support of the said submission. He submitted that another Single Judge of this Court, however, had taken a contrary view, in the view taken by the Learned Single Judge in the case of William Jacks & Co. (India) Ltd (supra) without referring to the said judgment and had observed that the stay could not be granted to the proceedings which were pending in the Small Causes Court by this Court while functioning on the original side. He submitted that firstly judgment in the case of William Jacks & Co. (India) Ltd. was not brought to the notice of the Learned Single Judge in the said Notice of Motion and, secondly, it was submitted that the prayer which was asked for in the said Notice of Motion, was stay of proceedings in the Small Causes Court and, therefore, the stay was rightly not granted since even in the case of William Jacks & Co. (India) Ltd.,the Learned Single Judge was also of the view that stay to the proceedings before the Small Causes Court could not have granted by this Court. 8. On the other hand, the learned Counsel appearing on behalf of the Defendant invited my attention to the another judgment of the Learned Single Judge of this Court wherein the view taken by the Learned Single Judge Justice D.R. Dhanuka was not accepted and the matter was referred by the Learned Single Judge to the Division Bench for deciding the said issue viz. whether the Court finding on the original side could grant an order of injunction restraining the Defendant from proceedings which were pending in the sub-ordinate Court. He secondly submitted that in the present case, the Plaintiff had filed a suit for specific performance in this Court and the result and outcome of this suit was not depended on the outcome of the suit which was filed by the Defendant in the Small Causes Court. He submitted that pursuant to the liberty which was granted by this Court in the Notice of Motion which was taken out by the Plaintiff in his suit, the Defendant had filed the eviction suit in the Small Causes Court and was seeking eviction of the Plaintiff by following due process of law. He further submitted that the two issues raised in two the two suits. One was and agreement for sale and the other was against the order of termination. In respect of the agreement of sale, the Plaintiff had filed the suit for specific performance in this Court and against the second agreement of termination of leave and licence by the Defendant, the Defendant had filed the suit for eviction against the Plaintiff in the Small Causes Court. He submitted that, therefore, the cause of action in both the suits are entirely different and, as such, there was no question of restraining the Defendant from proceeding with the eviction proceedings, which were taken out by him in the Small Causes Court. 9. After having heard both the learned counsel for the Plaintiff and the Defendant for sometime, I am of the view that without going into the legal question as to whether an order of injunction can be passed by this Court while functioning on the original side, restraining the Defendant from proceeding with the suit which was filed in the Small Causes Court, on facts of the case, the Plaintiff, in my view,is not entitled to seek an order of injunction as prayed by him in his Notice of Motion. 10. It is an admitted position that two agreements were executed between the Plaintiff and the Defendant. One was the agreement for sale and other was the agreement for leave and licence. After the termination of the agreement for sale, the Plaintiff has filed the suit for specific performance. The second agreement was an agreement for leave and licence which was also terminated by the Defendant and after termination of the leave and licence agreement, a suit was filed by the Defendant for eviction of the Plaintiff in the Small Causes Court. In my view, therefore, both these suits have been filed on two different causes of action which apparently are not dependent on each other. Even if the Defendant succeeds in the suit which was filed by him in the Small Causes Court if the Plaintiff thereafter succeeds in his suit for specific performance, he can be put in possession of the suit property on execution of the said decree for specific performance. 11. It is no doubt true that there was some delay caused in filing the written statement by the Defendant and for a period of six years, written statement was not filed, however, this delay was condoned by this Court, which order was confirmed by the Division Bench of this Court and also by the Apex Court. Therefore, the said delay now cannot be taken as a ground for staying the eviction proceedings which have been taken out by the Defendant. The Apex Court has expedited the hearing of the suit. The submission made by the learned Senior Counsel appearing on behalf of the Plaintiff that as a result of the conduct of the Defendant, they should be restrained from proceeding with the suit in the Small Causes Court, therefore, cannot be accepted. For the aforesaid reasons, therefore, I am of the view of the facts, the Plaintiff is not entitled to seek an order of injunction as prayed by them in the Notice of Motion. The Notice of Motion is, accordingly, dismissed. 12. So far as the Notice of Motion which is taken out by the Defendant is concerned, taking into consideration the reliefs which are claimed by the Plaintiff in the said Notice of Motion, and the grounds which are taken in the affidavit in support, in my view, it would be appropriate if the said Notice of Motion is heard along with the suit.Accordingly, Suit No.855 of 2001 and Notice of Motion 3081 of 2009 be heard together. 13. Notice of Motion No.2017 of 2009, accordingly, disposed of. 14. Place the matter for direction on 22nd September, 2009. (V.M. KANADE J.)