1 nms2056-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2056 OF 2011 IN SUIT NO.754 OF 2009 Rohit P. Shah & Anr. .. Plaintiffs Versus Devesh Narendra Jani & Ors. .. Defendants Mr.S.V.Doijode i/b. Doijode & Associates for plaintiffs Mr.D.H.Mehta i/b. M/s.Usha Gadagkar i/b. Divyashaha & Associates for defendant No.1 Mr.S.T.Jain with R.D.Vora for defendant No.5 CORAM : S.C.DHARMADHIKARI, J. 17th August 2011. P.C.: 1] This is a notice of motion moved by the defendant No.1 seeking following reliefs:- (a) That this Court be pleased to direct the plaintiffs to hand over to the defendant No.1 the keys of Flat No.502 presently in possession of plaintiffs after removing themselves and all the articles of the plaintiffs lying therein; (b) that the plaintiffs be jointly and/or severally restrained by an order and injunction of this Court from entering into/remaining in the said flat No.502 2 nms2056-11.doc and from disturbing the possession, legal and constructive as also physical of defendant No.1 in respect of the said flat; (c) That the plaintiffs be restrained by an order and direction of this Court from occupying the said Flat No.502 without the occupation certificate and in breach of the stipulation as stated in para 29 read with para 31 of the order dated 27th August, 2009 in Notice of Motion No.1190 of 2009 being Exh.A hereto;” 2] It is stated on affidavit by the defendant No.1 that the above suit is filed for a declaration that the suit agreement and allotment letters dated 9th July 1997 are valid, subsisting and binding upon the defendants and for a declaration that the termination of the same by defendant No.1 is illegal, null, void and not binding on the plaintiffs. 3] It is not necessary to go into any further details because it is the case of defendant No.1 in the affidavit in support of the present motion that an application for interim reliefs was made in this suit by the plaintiffs by moving Notice of Motion No.1190 of 2009 which came to be disposed of by this Court by order dated 27th August 2009, directing that in lieu of Flat No.301 on third floor of the new building, plaintiffs may be put in possession of 3 nms2056-11.doc Flat No.504 on fifth floor in the new building. Thereafter, an application for amendment of the plaint was made and upon amendment being carried out, a further application for interim reliefs being Notice of Motion No.4017 of 2009 was taken out by the plaintiffs and this time this was in relation to Flat No.501. By an order dated 15th December 2009, parties were directed to maintain status quo in respect of this flat. In para 6 of this affidavit in support, it is stated that third application being Notice of Motion No.2288 of 2010 seeking directions against defendant No.1, was moved by the plaintiffs and particularly to hand over possession of flat No.502 and for payment as per clause 8 of the Agreement. Ultimately, on this motion, an order came to be passed on 2nd September 2010 and upon plaintiffs depositing additional sum in relation to flat No.502 and granting liberty to defendant No.1 to withdraw the said sum on obtaining occupation certificate, this motion came to be disposed of. 4] It is stated that the defendant No.1 did all that was necessary for obtaining occupation certificate but it could not be issued before 31st December 2010. In the garb of conducting 4 nms2056-11.doc some religious ceremony, the plaintiffs obtained keys of Flat No. 502 from defendant No.1 and entered the said flat and have remained therein. This act on the part of plaintiffs defies the order dated 2nd September 2010 in Notice of Motion No.2288 of 2010 and earlier orders that have been passed in the suit. 5] Upon perusal of the affidavit in support and annexures thereto and the reply of the original plaintiffs, I am of the view that the first defendant is seeking substantive reliefs against the plaintiffs. It is the plaintiff’s suit in which the prayer is for declaration against defendant No.1 that the allotment letters are valid, subsisting and binding and, their termination is bad in law. That is how the cause of action in the suit proceeds. Now in the intervening period and after interlocutory orders, if the plaintiffs have been entered possession of flat No.502, despite the alleged cancellation of the allotment letters and wrongfully without any permission from first defendant, then, without instituting substantive proceedings, the first defendant cannot obtain any reliefs against the plaintiffs. It is pertinent to note that neither any counter claim is raised nor a substantive suit is filed by the first 5 nms2056-11.doc defendant. In the suit filed by the plaintiffs wherein reliefs are of the aforestated nature, in my view, it will not be possible to consider the claim of first defendant and particularly when it seeks to oust plaintiffs from possession of flat No.502. That is a relief which the first defendant must seek by instituting his own proceedings. The request as made in the instant motion cannot be considered for the obvious reasons that all the interim orders are made in the plaintiffs’ suit on the basis of cause of action accruing in favour of plaintiffs. If by the events of 17th and 20th January 2011, some cause of action accrues in favour of first defendant, then, it is open for first defendant to initiate such proceedings as are permissible in law and claim substantive reliefs in his favour. 6] However, Mr.Mehta appearing in support of this motion argues that the motion is the proper remedy. In his submission, the events of January 2011 are a fall out of the interim order in the plaintiffs' suit. Hence, the contentions of the 1st defendant that the interim order dated 2nd September 2010 is misinterpreted and misconstrued by the plaintiffs be duly considered. Reliance 6 nms2056-11.doc is placed on Order XXXIX Rule 1(a) of CPC in this behalf. It is not possible to accept these contentions. The plaintiffs have denied all these pleas. They do not admit that the order dated 2nd September 2010 is misapplied by them. They claim their rights on the basis of their cause of action. They claim they are rightly in possession of Flat No.502. They deny that they have dispossessed the 1st defendant from flat No.502 or wrongfully obtained possession thereof. Thus, these are not mere incidental or ancilliary issues and arising from the same cause of action. Order XXXIX Rule 1 (a) of CPC has application when the defendant can claim relief on the basis of same cause of action or matters incidental to it, otherwise the defendant must file a counter-claim or a substantive suit of his own. Hence, in this case the remedy of the first defendant is elsewhere and he must institute his substantive action. Leaving all contentions and remedies open for parties, this notice of motion is disposed of. No costs. (S.C.DHARMADHIKARI, J) 7 nms2056-11.doc