1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.43 OF 2006 WITH CIVIL APPLICATION NO.42 OF 2006 WITH CIVIL APPLICATION NO.183 OF 2006 WITH CIVIL APPLICATION NO.232 OF 2006 AND APPEAL FROM ORDER NO.44 OF 2006 WITH CIVIL APPLICATION NO.43 OF 2006 WITH CIVIL APPLICATION NO.184 OF 2006 WITH CIVIL APPLICATION NO.233 OF 2006 Intercon Real Estate Developers. 89, Ararat, N.M.Road, Fort, Mumbai 400 023. ..Appellant. V/s. 1. M/s.Modern Restaurant Kwality House, Ground floor, Kemp’s Corner, Mumbai-400 036. 2. Madan Mohan Paradi, 3. Mr.Pyarelal Bhardwaj, 4. Mrs. Krishna Kumar Ghai 5. Rajkumar Lamba Family Trust, C/o M/s. Modern Restaurants, Kwality House, Ground floor, Kemp’s Corner, Mumbai 400 036. 6. Orion Advertisers 4B, 4th floor, Tardeo A.C.Market, Mumbai 400 034. ..Respondents. Mr. N.V.Walawalkar, Sr.Advocate with Ms.Sheetal Sampat i/b Vimadalal & Co. for appellant. Mr.Kishore Jain with Joe Fernandes for Respondent No.1 to 5. 2 Mr. Navin Parikh with Ms.Hetal Parikh for respondent No.6. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 20, 2006. DATE : MARCH 20, 2006. DATE : MARCH 20, 2006. P.C.: P.C.: P.C.: 1. Heard both sides at length. Perused the relevant documents and pleadings on record. 2. This common order will dispose of both the appeals and six civil applications filed in the respective appeals. The former Appeal from Order No.43 of 2006 is directed against the Judgment and Order passed by the Trial Court dated 9th September, 2005 in Notice of Motion No.5181 of 2004 in S.C.Suit No. 5878 of 2004. The later is filed against self-same common Judgment and Order dated 9th September, 2005 passed by the Trial Court in Notice of motion No. 5150 of 2004 in S.C.Suit No.5769 of 2004. 3. For the sake of brevity I will refer to the contesting parties as "Ashar" on one hand and Intercon Real Estate Developers Private Ltd. as "Intercon" on the other hand. The original owner of the suit building are supporting the cause of Ashar. The dispute relates to right to display hoarding on the suit building which was enjoyed by Ashar in terms 3 of the agreement. According to Ashar the said agreement is subsisting one. On the other hand, according to the Intercon, Ashar had no right to display the hoarding on the suit building. This is so because Ashar claimed that right in terms of agreement executed in his favour by the original owners of the building who themselves have had no subsisting right. Whereas, in view of the rights assigned under the Deed of Assignment in favour of Agarwal which has now vested in Intercon, the Intercon enjoys 2/3 rights even in the terrace premises, besides, being owner of the first and second floor premises in the suit building. I am not elaborating the facts which led to filing of two suits between the parties which are already referred to in the impugned Judgment. Suffice it to observe that as representatives of the Intercon obstructed Ashar from displaying hoarding or for that matter entering upon terrace portion so as to change the advertisement on the hoarding, he filed suit in the City Civil Court being S.C.Suit No.5769 of 2004 for the following reliefs. (a) that this Honourable Court be pleased to restrain Defendant No.6, its agents, servants, representatives, security personnel, watchmen and or any person or persons claiming under or through it by a perpetual order and injunction 4 from in any manner stopping, obstructing, preventing, causing any hindrance or obstacle to the Plaintiff from displaying advertisements from the suit hoarding fixed on the outer wall between the 2nd floor and the terrace of the building known as Kwality House, Kemp’s Corner, near the Peddar Road Fly-over, August Kranti Marg, Bombay 400 036 and from having free access thereto, inter alia, through the terrace of the said building Kwality House; (b) that pending the hearing and final disposal of the suit Defendant No.6, its agents, servants, representatives, security personnel, watchmen and/or any person or persons claiming under or through it be restrained by an order and injunction of this Hon’ble Court from in any manner stopping, obstructing, preventing, causing any hindrance or obstacles to the Plaintiff from displaying advertisements from the suit hoarding fixed on the outer wall between 2nd floor and the terrace of the building known as Kwality House, Kemp’s Corner, near Peddar Road Fly-over, August Kranti Marg, Bombay 400 036 and from having free access thereto, inter alia, through the terrace of the said building Kwality House during such hours and on such terms and conditions as this Hon’ble Court deems fit and proper for the purpose of enabling the workers, mechanics, painters, electricians and/or representatives of the Plaintiff to increase the size of the board as per the Municipal sanction, change/replace the display on the suit hoarding and/or attend to, pain rectify, repair and/or replace the suit hoarding or any part or portion thereof; (c) that ad-interim orders in terms of prayer clause (b) above be granted. (d) that the cost of the suit be provided for 5 and (e) that such other and further reliefs as the nature and circumstances of the case may require be granted. In the said suit Ashar prayed for interim relief during the pendency of the suit consistent with prayer clause (b) referred to above. 4. On the other hand, Intercon filed another suit being S.C.Suit No.5878 of 2004 in the same court for the following reliefs. (a) that this Hon’ble Court be pleased to declare that the defendant Nos. 1 to 5 have no right, title and interest or authority to create any rights in respect of the Hoarding Rights in the said building "Kwality House" at Kemp’s Corner, Mumbai-400 036 and to derive and generate profits and benefits therefrom to the exclusion of the plaintiff without the consent and knowledge of the plaintiff in view of the plaintiff having 2/3 undivided right tin the said building and Hoarding Rights and further that the alleged rights created in favour of the defendant No.6 by the Defendant Nos.1 to 5, under undisclosed agreements, are bad-in-law, illegal and not binding upon the plaintiff; (b) that the defendant Nos.1 to 5 are bound and liable to disclose to the plaintiff the true nature of transaction and right created in favour of the defendant No.6 in respect of the Hoarding Rights and give and provide proportionate 2/3 benefit thereof to the plaintiff and the defendant Nos.1 to 5 be ordered decreed and directed to provide the proportionate 2/3 share in 6 favour of the plaintiff in respect of the Hoarding Rights; (c) that this Hon’ble Court be pleased to restrain the defendant Nos. 1 to 5 by an order of permanent injunction from in any manner dealing with, disposing off, creating or granting or assigning right in respect of Hoarding Rights on the building on the building "Kwality House", Kemp’s Corner, Mumbai-400 036, save and except without consent of the plaintiff in writing; (d) that pending the hearing and final disposal of the present suit, this Hon’ble Court be pleased to restrain the defendant Nos. 1 to 5 by an order of temporary injunction from in any manner dealing with, disposing off, creating or granting or assigning right in respect of Hoarding Rights on the building "Kwality House", Kemp’s Corner, Mumbai-400 036, save and except without consent of the plaintiff in writing; (e) that pending the hearing & hearing and final disposal of the present suit, this Hon’ble Court be pleased to restrain the defendant No.6 from in any manner using, utilizing the space in the building for putting up any Hoarding, without consent of the plaintiff and the defendant No.6 be directed by an mandatory order of injunction to forthwith remove and uninstall the Hoarding put up on the building "Kwality House", Kemp’s Corner, Mumbai-400 036; (f) that pending the hearing and final disposal of the present suit, this Hon’ble Court be pleased to direct the defendants to place on record the true transaction and the alleged rights created in favour of defendant No.6 by defendant Nos. 1 to 5, by disclosing the same on affidavit and annexing all the documents in support thereof along with the affidavit and further defendant No.6 be directed to deposit 7 the monthly compensation with the Plaintiffs; (g) interim and ad-interim reliefs in terms of prayer clauses (d) to (f) be granted. (h) such other reliefs as the Court may required; (i) costs of the suit be provided for; Intercon took out Notice of Motion No.5181 of 2004 in the said suit consistent with the interim relief prayed in the above terms. Ashar took out Notice of Motion No.5150 of 2004 in S.C.Suit No.5769 of 2004. Both these notice of motions have been heard and disposed of together by the trial Judge by the common Judgment and order dated 9th September, 2005. 5. The first controversy that has been addressed by the Trial Court in the impugned Judgment is the nature of rights enjoyed by Ashar. The trial Judge after considering the relevant materials on record has taken the view that the right which was available to Ashar in terms of agreement executed by the representative of original owners continued to operate and the subsequent agreement of Deed of Assignment or purchase of first floor and second floor of the suit building by Intercon does not affect the said right of Ashar. The trial Judge has taken the view that the right in favour of the Ashar 8 has been created by M/s.Modern Restaurant which enured in favour of Ashar under the agreement executed on 25th July, 2002 for a period of five years and was subsisting one. The trial Judge has then noted that although the deed of assignment in favour of Agarwal was executed in 1997, however, at no point of time any obstruction was caused to Ashar in exercising his right under the licence agreement executed in his favour by the original owners. The trial Judge has also noted that there is already pending dispute between the original owners and Intercon questioning transaction of assignment under which intercon claims to have acquired right in respect of second floor of the suit building. In view of the pendency of the said dispute, it was not open to challenge the right of Ashar which is created in terms of agreement executed by the owners and their representatives. The trial Judge has also observed that it is not open to the City Civil Court to dwell upon the issue which may be relevant for consideration in the suit pending between the original owners and Intercon. The trial Judge has then adverted to Clause (G) and (F)(ix) of the assignment agreement in relation to the first floor dated 28.8.1997 whereunder the Intercon acquired right in respect of the one third undivided share in 9 terrace. The trial Judge has found that the said agreement of assignment does not affect the right of Ashar to put up hoarding on terrace above the second floor. The trial Judge has then adverted to assignment agreement dated 10th September, 2004 which pertains to second floor in the suit building. While referring to clause Nos. 1, 10, 11 12 and Second Schedule of the said agreement, it is found that even this agreement will not affect the right of Ashar to display hoarding on the terrace above the second floor. It is noted that the agreement creates right on "AS IS WHERE IS’ and "AS IS WHAT IS " basis, for which reason will not affect the agreement executed in favour of Ashar. Taking this view of the matter the trial Judge was pleased to accept the plea pressed into service on behalf of Ashar and granted interim injunction as prayed for. While doing so, the trial Judge has directed the original owners defendant No.1 to 5 to hand over key of the lock on the terrace to Ashar so as to implement the order passed. Similar direction has been given to Intercon to remove the lock put up by Intercon on the terrace so as to enable Ashar to implement the order. The operative order passed by the trial court reads thus: ORDER 1. Notice of Motion No.5150/04 in S.C.Suit 10 No.5769/04 is made absolute in terms of prayer clause (a). 2. There is no order as to cost. 3. Pending the hearing and final disposal of the suit defendant No.6, its agents, servants, representatives, Security Personnel and watchmen and/or any person or persons claiming under or through it are hereby restrained by an order and injunction of this Court from in any manner stopping, obstructing, preventing, causing any hindrance or obstacles to the plaintiff from displaying advertisements from the suit hoarding fixed on the outer wall between the 2nd floor and the terrace of building know as Kwality House, Kemp’s Corner, near Peddar Road Fly over, August Kranti Marg, Mumbai 400 036 and from having free access thereto inter alia through the terrace of the said building Kwality House and for the purpose of enabling the workers, his mechanics, painters, electricians and/or representatives of the plaintiff to increase the size of the board as per municipal sanction, change/replace the display on the suit hoarding and/or attend to, paint, rectify, repair and/or replace the suit hoarding or any part or portion thereof. 4. The Ld. Advocate Mr.Fernandes for defendants 1 to 5 states that defendants 1 to 5 have put up their lock to the terrace and he is prepared to hand over key of the said lock to the Plaintiff Mr. Ashar. 5. Thus, defendant 1 to 5 are directed to hand over key of the lock on the terrace to the plaintiff so as to enable the plaintiff to implement the said Order granted above. 6. At the same time, I am told that there is lock put up by M/s Intercon Real Estate Developers Pvt.Ltd. on the terrace and hence, they are also directed to open the said lock of the 11 terrace so as to enable the plaintiff to implement the order granted above. 7. The plaintiff is directed to give sufficient advance notice to defendants 1 to 5 and to M/s Intercon Real Estate Developers Pvt.Ltd. for doing anything with regard to the suit hoarding on the terrace. 8. In so far as Notice of Motion No.5181 of 2004 in S.C.Suit No.5878 of 2004 of the plaintiffs is concerned, the same is dismissed. 9. There is no order as to cost. 10. S.C.Suit No.5769 of 04 and S.C.Suit No.5878 of 2004 are adjourned to 24.10.05 before Court room No.2 for direction. 11. Later on : At the request of Ld.Advocate Ms.Hetal Patel for the plaintiff Mr.Ashar the following order is passed. 12. Sheristedar is directed to furnish authenticated copy of roznama to the Ld.Advocate for the plaintiff Mr.Ashar and to defendants 1 to 5. 13. Both parties to act upon certified copy of roznama to implement the Order. 6. As the order was adverse to Intercon, two separate appeals from order have been filed by Intercon before this court. When these appeals from order came up for hearing on 22nd January, 2006 it 12 was contended that specific plea was taken before the trial Court that the document pressed into service on behalf of Ashar dated 25th July, 2002 was fabricated document. It was contended that the said point was argued before the trial Court, which fact is reinforced from the contents of the impugned Judgment as reference has been made by the trial Judge to that aspect. However, the trial Judge failed to adjudicate that issue. In the backdrop of this contention it was thought appropriate to invite finding of the trial Judge on the issue as to whether the document dated 25th July, 2002 was a fabricated document. The trial Judge by his decision dated 18th February, 2006 has returned finding on the said issue as was invited by this court. The trial court has observed that error appearing in the document is obviously a clerical or typographical error and that no advantage is passed on or taken or received by Ashar on account of so called manipulation of the date as the licence period of the earlier agreement was in force. What is relevant to note is that the trial court has clearly found that the jurisdictional facts relevant to question the document being fabricated are not set out in the affidavit in reply nor in any of the pleadings filed on behalf of the Intercon. If so, the trial Judge has noted that, the 13 question of entering upon the controversy whether the document is fabricated or not does not arise. Nevertheless, even on merits the trial Judge answered the said issue against Intercon. By way of Civil application Nos.232 of 2006 and 233 of 2006, finding recorded by the trial Judge on the above issues has been questioned before this court. In other words, the entire controversy arising out of impugned common Judgment dated 9th September, 2005 as well as emanates from the finding recorded in the order dated 18th February, 2006, both passed by the trial court, is put in issue in the present appeals. 7. Essentially, three contentions have been raised on behalf of the appellant Intercon before this court. First contention is that Ashar had no right to display hoarding on the terrace. It is submitted that the source of right available to Ashar has not been established. The documents which are pressed into service on behalf of Ashar are not by the original owners. The second argument canvassed before me is that since the appointment of court receiver, the court receiver was in possession of the suit premises. Consequently, the agreement executed in favour of Ashar on 25th July, 2002 will be illegal and cannot be sustained in law. The third contention 14 raised before me is that taking any view of the matter, the trial Judge has exceeded its jurisdiction in issuing mandatory order directing the appellant to remove the lock from the suit premises. That too without recording any separate or special reasons for issuance of such direction and when no such relief is claimed in the Notice of Motion filed by Ashar. 8. I shall straightway deal with the first contention raised on behalf of the appellant. To addressed this aspect, I will advert to the relevant documents, on which, reliance is placed on behalf of Ashar. According to Ashar, right to display hoardings was given to him under agreement dated 2nd August, 1989. That agreement was executed by M/s. Kwality Catering Services, a Partnership firm. In the recital, it is mentioned in paragraph clause (1) of the agreement that Kwality Catering Services had full right and authority to enter into the said agreement. By virtue of clause (2) Said Ashar was granted permission to erect and display illuminated hoarding of size not exceeding 30ft. in length and 10 ft. in height on the said building overlooking Flyover, for a period of 5 years commencing from 1st August, 1989, provided however, after obtaining necessary permission from the local authorities. It 15 is not necessary to advert to the other terms and conditions of the agreement. This agreement was to subsist for a period of 5 years from 1st August, 1989. The said right was extended in favour of Ashar under another agreement executed between Kwality Catering Services and Ashar on 1st August, 1994. The terms contained in the second agreement are more or less repetition of the terms provided for in the earlier agreement. It is indisputable that on the basis of the first agreement of August 1989 Ashar erected and displayed an illuminated hoarding of the size not exceeding 30 ft. in length and 10 ft. in height, after obtaining necessary permission from the authorities. And since then advertisement of different agencies were displayed on the said hoarding from time to time till recently. Besides, at no point of time the predecessor in title of the Appellant Intercon challenged the authority of Kwality Catering Services to grant licence in favour of Ashar. Moreover, the original owners have supported the claim of the said Ashar that he was legitimately granted licence by Kwality Catering Services. We are not concerned with whether all the terms provided in the agreement executed between Kwality Catering Services and Ashar have been complied or not. The next agreement which was 16 executed is dated 1st August, 1997, once again by Kwality Catering Services. Recital of this agreement states that the building belongs to and is owned by M/s. Modern Restaurant who has granted right and authority to M/s. Kwality Catering Services to install/fix a hoarding structure/Board admeasuring 30 ft. x 10 ft. on the terrace between second floor and terrace of the said building. In the third recital, it is mentioned that Kwality Catering Services are the lessees of M/s Modern Restaurants in the said building. The term of license provided in this agreement is five years, as per clause (2) of the agreement. The other terms of this agreement are more or less repetition of the earlier agreements executed between the Kwality Catering Services and Ashar. While this agreement was subsisting the fourth agreement on which Ashar would rely was executed on 25th July, 2002, once again by Kwality Catering Services. As per this agreement, the said Ashar would be entitled to display hoarding for a period of five years from 1st August, 2002. There is one change which is brought about in this agreement. The size of the hoarding is allowed to be increased to 30 ft. length x 20 ft.height. On considering all these documents singularly or together, it is obvious that Ashar came on the scene on execution of the 17 agreement dated 2nd August, 1989. Hoarding has been erected by Ashar. Ashar has also secured necessary permission from all the local authorities for displaying advertisement on the said hoarding. Since 1989 the hoarding is in place on the terrace. The original size of hoarding viz. 30 ft. length x 10 ft. height has been subsequently increased to 30 ft. length x 20 ft.height in terms of agreement dated 25th July, 2002. The right subsisting in favour of Ashar to display hoarding on terrace under agreement dated 25th July, 2002 is for a period of five years from 1st August, 2002, which means the same still subsists. 9. To get over this position, the appellant would contend that Kwality Catering Services had no right to enter into agreement with any person much less Ashar. It is not possible to accept this submission. For, the original owner has supported the claim of Ashar. Moreover, the documents relied by Ashar issued in his favour by Kwality Catering Services clearly refer to the authority of the executant. That the predecessor in title of the Appellant Intercon had at no point of time since 1989 challenged the authority of Kwality Catering Services or the right of the said Ashar to put up the hoarding 18 and display advertisement on the terrace over the second floor. Taking overall view of the matter at this stage the claim of Ashar will have to be accepted. 10. According to the Appellant they derive right which originates from the Deed of Assignment in favour of Agarwal dated 28th August, 1997, which pertains to first floor premises in the suit building and another Deed of Assignment in favour of Agarwal dated 1st September, 1997 which pertains to second floor in the said building. The second floor premises are lateron purchased by Intercon under the sale certificate issued on 10th March, 2004. Taking these documents as it is, at best, it is seen that the appellant Intercon has acquired undivided right to the extent of 2/3 area in terrace portion. However, these documents in no way affect the right of Ashar which was already created