1 905 caf 580.10 in fa 265.00.doc k IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 580 OF 2010 IN FIRST APPEAL NO. 265 OF 2000 Pahatu Purshottam Kanojia ..Applicant. Vs. Shrinivas Raghunath Kabra & Ors. ..Respondents. Mr. Manoj S.Mhambrey for the applicant. Mr. Anil Singh i/b Mr. D.R.Shah for the respondents. CORAM : D.B.BHOSALE, J. DATED : 26/10/2010. PC: 1 Heard learned counsel for the parties. 2 The Applicant filed a suit being S.C. Suit No. 1668 of 2007 whereas the Respondents filed S.C. Suit No. 217 of 2008. Both the suits were tried and disposed of by common judgment dated 04.01.2010. The operative portion of the impugned judgment reads thus: “ORDER In Suit NO. 217/08:- 1) Suit is partly decreed. 2 905 caf 580.10 in fa 265.00.doc 2) The defendant, his family members, relatives, servants, Agents and other persons claiming through him are perpetually restrained from entering and remaining upon in any portion of Yashodhan building, situated at plot No.322, Mogul Lane, Mahim, Mumbai 400 016. 3) Separate enquiry under order 22, ruling 12 (c) regarding means profits be made 4) This decree will have effect from 27 January 2010. 5) Parties are left to bear their own costs of the suit. 6) Decreeing be drawn accordingly 7) Original documents produced by the parties be returned to them after the period of appeal is over. In suit No.1668/07:- 1) Suit is hereby dismissed with costs. 3 905 caf 580.10 in fa 265.00.doc 2) Decreeing be drawn accordingly. 3) Original documents produced by the parties be returned to them after the period of appeal is over.” 3 The Applicant/Appellant has filed two First Appeals in this court challenging the judgment and decree passed in the aforesaid two suits. The instant Application is filed in First Appeal No.265 of 2000 which is arising from the judgment and order passed in S.C. Suit No.217 of 2008. The Respondents in this suit (S.C. Suit No.217 of 2008) made the following two prayers: “a) the Defendant, his family members, relatives, servants, agents and persons claiming through him be restrained by a permanent order of injunction from entering Plot No.322, remaining upon on any portion of Plot No.322 and carrying on business of ironing cloth without the license from License Department of M.M.C. at Plot No.322, Yashodhan Building, Mogul Lane, Mahim, Mumbai 400 016; b) that Defendant be ordered to pay mesne profits to the Plaintiffs under O.20, R.12 of the 4 905 caf 580.10 in fa 265.00.doc Code of Civil Procedure and enquiry be held for that purpose;” 4 Whereas, the Applicant in his suit being S.C. Suit No.1668 of 2007 made the following prayer: “A. The Defendants, their servants, agents or anybody claiming through them be restrained by an order of permanent injunction from dispossessing the Plaintiff from the suit premises and/or demolishing or in any manner interfering with the peaceful possession of the Plaintiff in respect of the suit premises i.e. open land admeasuring 8 ft. x 13 ft. with G.I. Sheet on the top, in the compound to the East of the building known as Yashodhan at Plot No.322, Mogul Lane, Near Old Mahim Post Office, Mahim, Mumbai – 400 016,;” 5 The Respondents-Plaintiffs claim to be the owners of Yashodhan building (for short “ the building”) situated at Plot No.322 (Old Survey No.130 and New Survey No.3/139) ad- measuring 243.83 meters. They purchased this property by registered sale deed on 13.05.1974. The Appellant claims that 5 905 caf 580.10 in fa 265.00.doc he has been carrying on laundry business (ironing) in the open space touching the eastern wall situated next to the main entrance of the building. The trial court after having considered the entire material on record in S.C. Suit No.217 of 2008 held that the Appellant-Defendant caused obstruction to the Plaintiffs to the enjoyment of the suit property and hence, granted perpetual injunction restraining the Appellant from entering and remaining upon in any portion of Yeshodhan building. In the suit filed by the Appellant, the trial court held that though the Plaintiff proved that he is in possession of the suit premises, he has failed to prove that he is entitled for injunction as claimed. The trial court also held that the suit filed by the Appellant is not maintainable. It is against this background, I have heard learned counsel for the Applicant. 6 In this Civil Application, the Applicant has prayed for injunction restraining the Respondents from executing the judgment dated 04.01.2010 in S.C. Suit No.217 of 2008. I have perused the impugned judgment. The trial court after considering the entire evidence on record has observed that the Applicant has caused obstruction to the enjoyment of the compulsory open space within the compound of the building. The learned counsel for the Applicant vehemently submitted 6 905 caf 580.10 in fa 265.00.doc that the suit itself was not maintainable and hence the impugned judgment deserves to be set aside as null and void. He submitted that the City Civil Court had no jurisdiction to decide the issues involved in the suit and therefore, the impugned judgment cannot be executed. From perusal of the judgment, it is clear that the suit filed by the Appellant was dismissed as not maintainable. The present Application is filed in the Appeal arising from the suit filed by the Respondents being S.C. Suit No. 217 of 2008. In this suit also issue of jurisdiction was framed, but it was answered in the affirmative. The said suit was filed only for injunction simplicitor. This submission in my opinion, therefore, will not have any effect insofar as the present Application is concerned. 7 It is the case of the Respondents that the Applicant was allowed to place only a table in the premises of the building for ironing purpose. The Applicant, taking advantage of the permission, started spreading his wings and occupied the land, in the premises of the building, ad-measuring 8’ x 13’ and also constructed a shed above the said portion of the land. Learned counsel for the Respondents has placed on record a photograph and a sketch showing the structure in dispute and its exact location. The existence of the structure, as is seen in the 7 905 caf 580.10 in fa 265.00.doc photograph, and its location, shown in the sketch is not in dispute. Hence, the photograph and the sketch are taken on record and marked ‘X’ for identification. The photograph so also the sketch clearly show that the Applicant has occupied part of the passage leadings to the main entrance of the building. The portion occupied by the Appellant is covered by shed. His all household articles including bed are lying in open in the passage from where the occupants of the building including women and children pass to enter the building. 8 Mr. Mhambrey, learned counsel for the Applicant invited my attention to the cross-examination of the Plaintiff’s witness to contend that the Plaintiffs permitted him to occupy the portion within the compound of the building and has been in possession right from inception. I have perused the cross- examination and more particularly the following portion of the cross-examination to which my attention was drawn: “It will be correct to say that Plaintiff has permitted the Defendant to enter the suit premises. In the written statement filed by us in other sister Suit No.1668 of 2007 we have made statement that we 8 905 caf 580.10 in fa 265.00.doc allowed to Plaintiff to place table outside the building premises to do ironing work is correct.” (emphasis applied) 9 It is thus clear that the Applicant was allowed to place only a table for ironing purpose and taking advantage of such permission he has occupied the portion, as is seen in the photograph and in the sketch, ad-measuring 8’ x 13’. This undoubtedly causes an obstruction to the Plaintiffs and the other occupants of the building while entering the building. In view thereof, I asked Mr. Singh, learned counsel for the Plaintiffs whether, it is possible for the Plaintiffs, pending the hearing and final disposal of the Appeal, to shift and/or accommodate the applicant at any other place in the compound of the building, so as to clear the passage leading to the main entrance of the building. Mr. Singh, on instructions, submits that the Plaintiffs, without prejudice to their rights and contentions and subject to final outcome of the Appeals, are ready to provide a table space to the Applicant within the compound of the building. However, this offer is not acceptable to the Applicant. Keeping that in view and having regard to over all facts and circumstances of the case, so also the impugned judgment, I am satisfied that the encroachment, such as one 9 905 caf 580.10 in fa 265.00.doc made by the Applicant in the present case, cannot be allowed to be continued merely because the Appeal is admitted. 10 The judgment relied upon by the learned counsel for the Applicant in Mool Chand Yadav and Another Vs. Raza Buland Sugar Company Limited Rampur And Others. (1982) 3 Supreme Court Cases 484, in my opinion, will not apply to the facts of the present case. Hence, interim relief is refused. However, it is made clear that if the Applicant agrees and expresses his desire in writing to shift at some other location within the compound of the building, without prejudice to his rights and contentions, the Plaintiffs may without prejudice to their rights and contentions, provide him a table space, within four weeks from today. This however, would be subject to final outcome of the Appeal. With these observations, the Civil Application is disposed of. (D.B.Bhosale, J.)