1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO.4871 OF 2008 IN FIRST APPEAL NO.2185 OF 2005 Ladharam D. Ahuja & Anr. ..... Applicants vs. Kalpataru (Indo-Saigaon) ..... Respondents Constructions Pvt.Ltd. & Anr. Mr. S.A. Sawant, Advocate for applicants. Mr. Robin Jaysinghani, Advocate for respondent. Mr. Vinod Mahadik, Advocate for BMC Coram : Smt.R.P. SondurBaldota, J. Date : 25th January, 2010. PC : 1. By the judgment and decree dated 9th May 2003, passed by the Bombay City Civil Court in L.C. Suit 7318 of 1986, respondent no.1 to the present Civil Application was directed to give possession of three shops each admeasuring 300 sq. ft. to original applicants no.1 and 2 and applicant no. 3 on they paying balance consideration of the shops of Rs.2,40,000/- with an additional amount of Rs.50,000/- for each shop. Respondent no.1, who is the builder has challenged the judgment and decree by filing the present appeal. Respondent no. 2 is the Co-operative Housing Society. Respondent No.3, Mumbai Municipal Corporation has been subsequently added as respondent to the present Civil Application. During the pendency of the present Civil Application, applicants no. 1 and 2 elderly persons aged 80 years and 75 years respectively, died and their 2 heirs have been brought on record. 2. Alongwith filing the present appeal, respondent no.1 took out Civil Application No.4719 of 2003 for stay of operation of the judgment and decree. At the time of hearing of the Civil Application on 26th August 2008, respondent no.1 produced a map showing certain portion delineated thereon by red colour, within which were two portions marked by orange colour. The learned counsel appearing for respondent no.1 made a statement before the court that on the red coloured portion, construction admeasuring 996 sq.ft. had been completed and it was lying vacant. On the two portion marked by orange colour, construction was yet to be made after obtaining necessary permission. As and when the construction is carried out thereon the same would also be reserved by the applicants. The learned Single Judge hearing the Civil Application was of the opinion that the interest of the applicants would be protected, if the statement made in the above terms on behalf of respondent no.1 is accepted. Therefore the statement was accepted with a direction to respondent no.1 that it shall keep the constructed portion of 996 sq.ft. shown within the red colour boundary on the map produced and the orange coloured portion as and when constructed, reserved for the applicants. Respondent no.1 was further directed to produce the necessary documents to show that the construction shown within the red boundary has been made with sanction of Municipal authorities. Subject to this condition, the Civil Application was allowed in terms of prayer clause (b). 3 3. Within a short time thereafter i.e. on 11th September 2008, the applicants filed present Civil Application alleging that respondent no.1 had made false statements to the court based on which the order dated 26th August 2008 was passed. On visit to the site, the applicants found that there was no constructed area of 996 sq.ft. as shown to the court by red coloured boundary. There were only columns standing without any walls. It was also alleged that the area of the red coloured boundary was not 996 sq.ft. at site, but it was about 550 sq.ft. Therefore the applicants seek appropriate action against respondent no.1 for making false statement before the court. They also seek direction to the respondents to hand over three shops admeasuring 300 sq.ft. to the applicants, out of the 8 shops constructed by respondent no.1 facing Comrade Harbanslal Road, Seva Samitee Co-operative Housing Society and appointment of receiver of the shops. 4. Considering the nature of the allegations made, by the order dated 26th Sept. 2008, Commissioner was appointed to make spot inspection in presence of both sides. The Commissioner visited the site on on 18th October 2008 and submitted a queer report that the photographs produced by the applicants did not pertain to the shops which were reserved as per the map produced by respondent no.1. Since the report did not throw any light on the disputed property, the Commissioner was directed to once again visit the suit property with specific directions to measure the carpet area of the portion outlined in red colour and note the number of accesses available to the same. This direction 4 was issued in view of the contention of the applicants that though respondent no.1 is liable to hand over possession of three shops each admeasuring 300 sq.ft., the portion marked in red colour has only one access. It would mean that this was only one shop. The commissioner accordingly visited the site for the second time and submitted his report dtd. 21st November 2008. The report divides the entire red boundried area into 8 smaller portions for the convenience of measurements. They are marked A to H. The factual situation found at site noted by the Commissioner is as follows : 1. Total carpet area of suit property is 933.79 sq.ft. approximately. (both parties raised objection in respect of area of one pillar and of shutter area at the entrance (marked in green colour) and the same is not taken into account. 2. Back side wall of portion A to G is not plastered from “ ” inner side, 3. Wall between shop no.5 and 6 is not constructed. 4. Between portion 'G' and H', 5'7 wall is constructed and “ ” above that 5' iron net is fixed up to ceiling. 5. Portion H - Front side and adjacent walls are constructed “ ” upto 3' and above the wall up to ceiling iron net is fixed. Back side and adjacent walls are not constructed. 6. Difference between the plinth level of portion 'A to G' and portion 'H' is 2'.9 (portion H is 2'9 higher than portion 'A to G'). ” ” 7. Small plants are planted in the area (marked in orange colour) adjoining portion 'H'' 8. There is one entry from front side to enter in the shop no.6. 5 However, since there is 5'7 wall and 5' iron net is fixed on the wall ” up to ceiling between portion G and H, we entered in the portion H from outside i.e. from the portion where vehicles were parked. The applicants contend that this second report of Commissioner completely bears out their contentions and therefore the reliefs as sought by the applicants deserve to be granted. 5. Perusal of the order dated 26th August 2008 shows that the same was passed in view of the statement made by respondent no.1 as regards the nature of construction at site as in existence on that date. If the actual position of the site materially defers from the representation made before the Court, the order cannot be allowed to stand. 6. About three weeks after the report of the Commissioner, respondent No.1 filed short affidavit in reply dated 9th December 2008 of it s Director. The reply ’ does not even make an attempt to explain the incomplete work at site. It makes a passing reference towards the end that during the site inspection, it was observed by the representatives of the respondent that a small portion of two walls at the rear end of the shop had not been fully constructed and immediate measures to complete the construction of the two walls were taken. 7. Mr. Sawant, the learned counsel for the applicants draws attention of the court to the statement made by respondent no.1 on 26th August 2008, which was recorded in the order. The same reproduced below: The learned counsel for the appellant has filed a Map “ marked X for identification. In that map, certain portion is “ ” 6 shown by red colour boundary. According to him, in this portion, the construction of 996 sq.ft. has already been completed and it is vacant. Besides this, there are two portions shown in orange colour within the red lines. He states that construction on that portion is yet to be made only after obtaining necessary permission. He also makes a statement that as and when the construction is made on that orange coloured portion, it will also be kept reserved for allotment to the plaintiffs/respondents in case they succeed” Mr.Sawant submits the report of the Commissioner shows that the first statement that the work of construction bounded in red colour was complete as on 26th August 2008 and admeasured 996 sq.ft. is palpably false. Besides there is no sign of the construction coming up on the orange coloured portion as respondent no.1 has already made a garden at the place. He also points out that despite specific directions, respondent no.1 did not produce documents to show that the construction shown within red line boundary has been made with sanction from the Municipal Authorities. 8. Mr.Jaysinghani, the learned counsel for respondent No.1 submits in reply that once the Court accepted the security offered by respondent No.1 on 26th August 2008 which security was not then objected to by the applicants, it is not now open to them to render the order passed on the basis of the security nugatory by seeking the reliefs in the present civil application. 9. The report of the commissioner makes it more than clear that on 26th August 2008, the construction on red bounded portion was not complete. Therefore, it was a false statement made on behalf of the respondent No.1 misleading the Court to pass the order on that date. Besides it was the duty of 7 respondent no.1 to specifically point out to the court that there was difference in the plinth level of different part of the red boundried portion and that it had only one access. The red boundried portion starts from shop No.6 as seen from the map produced and extends over the rear side of shops nos.7 and 8 and beyond that. There is no access to the rear side portion except through shop No.6. Therefore this so called security was no security at all for three independent shops to be given to the applicants each admeasuring 300 sq.ft. pursuant to the decree. All the above deficiencies were within the knowledge of respondent no.1 when the solemn statement came to be made before the court, on the basis of which statement, the interim order dated 26th August 2008 was passed. It is also clear from the order that but for the statement made, the order would not have been passed. 10. Since the statement made by respondent no.1 before the court on 26th August 2008 is found to be a false statement, the order of stay which is conditional upon the statement made, is bound to be vacated though there is no specific prayer made by the applicants for the same. 11. Unfortunately, the prayers as drafted in the Civil Application are not happily worded. It would be difficult to appoint Court Receiver, High Court, Bombay as Receiver of all 8 shops, which were to be constructed pursuant to the plans sanctioned by the Municipal Corporation on 6th May, 2005, a copy of which has been annexed to the affidavit-in-reply filed by 8 the Mumbai Municipal Corporation. This deficiency in the prayers is probably due to non-availability of the relevant information to the applicants, which information was entirely within the powers of respondent no.1. It is seen that the relevant information is not disclosed even in the affidavit-in-reply. It has not bothered to annex the sanctioned plans to the reply though the order dated 26th August 2008 specifically directs respondent no.1 to produce documents about authorisation of the construction on red boundried portion. This is a classic case of a common man pitted against the might of a builder. Respondent no.1 has not disputed in its affidavit-in-reply, the averment at para 11 of the Civil Application that the 8 shops are not sold to anybody. Therefore, the facts and circumstances of the case justify an interim order against respondent no.1 that it shall not create any third party rights over Shops No.1 to 5, Shop No.7 and Shop No.8, which are adjoining to the portion marked in red colour on the map submitted by respondent no.1. Since respondent no.1 has made a false statement to the court, notice must also be issued to the Directors of respondent no.1 to show cause as to why action in contempt should not be taken against them for making a false statement to the court on 26th August, 2008 based upon which the order of interim relief came to be passed on that date. In the circumstances, the Civil Application is disposed of with the following order : 9 O R D E R 1) The interim order dated 26th August 2008 allowing the Civil Application No.4719 of 2003 in terms of prayer clause (b) is set aside and the Civil Application is restored to file for hearing. 2) The respondent no.1 shall not create any third party rights over shops Nos. 1 to 5, 7 and 8, which are adjoining to portion marked in red colour from the plan sanctioned by Mumbai Municipal Corporation on 6th May 2005, pending the hearing of the Civil Application No.4719 of 2003. 3) Office is directed to issue notice to the Directors of respondent No.1 to show cause as to why action in contempt should not be taken against them for making a false statement to the Court on 26th August 2008 for obtaining the judicial order from the Court. 4) The respondent No.1 to pay costs quantified at Rs.25,000/- to the applicants in one set. ( Smt.R.P. SondurBaldota, J.)