:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1293 OF 2008 WITH CIVIL APPLICATION NO.1585 OF 2008 M/s.Moti Decorators .. Appellants. Vs. The Municipal Corporation of Greater Mumbai and Ors. .. Respondent. Mr.G.S.Godbole i/b Smt.Sunita Poddar for the appellants. Mr.A.Y.Sakhare, Sr.Advocate a/w Mr.Vinod Mahadik for respondent no.1. Mr.F.D’Vitre a/w Mr.J.P.Sen for respondent no.2. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 26TH MARCH, 2009. DATED : 26TH MARCH, 2009. DATED : 26TH MARCH, 2009. P.C.: P.C.: P.C.: . Heard learned counsel for the parties. 2. This appeal from order is directed against an order dated 17.11.2008 passed by the City Civil Court, dismissing the notice of motion No.2403 of 2006, taken out by the appellants-plaintiffs, for an order of injunction in terms of the prayer clause (a) of the motion. The prayer (a) in the motion reads thus: "(a) that pending the hearing and final disposal of the suit, the defendants, their agents, servants, officers, representatives and all persons acting through and on behalf of the Defendants be restrained by an order :2: :2: :2: and injunction of this Hon’ble Court from using force, dispossession, removing the plaintiffs and the articles, things, furniture, etc. from the suit premises and from entering into the suit premises and causing any acts, prejudicial to the rights of the plaintiffs in respect of the suit premises i.e. the premises admeasuring about 1588.93 sq. mtrs. situated at C-11, Vallabhbhai Patel Road, Lotus Cinema, Behind Nehru Centre, Worli, Mumbai 400 018, in any manner whatsoever without due process of law." 3. I have heard learned counsel for the parties for sometime. At the outset Mr.Godbole, learned counsel for the appellants invited my attention to the judgment and order dated 9th January, 1976 passed in Miscellaneous Appeal No.71 of 1975. That appeal was preferred against the eviction order dated 26.4.1975 passed by the Enquiry Officer under section 105-B(1) of the Bombay Municipal Corporation Act (for short "the BMC Act"). Mr.Godbole, submitted that the subject matter of the said miscellaneous appeal and the instant proceedings is one and the same. That appeal was allowed and the eviction order was set aside with directions to the respondent-corporation to restore to the appellants possession of whatever land and shed taken possession of by them from the appellants before 9th February, 1976. It is on the basis of this order Mr.Godbole submitted that it is sufficient to show that even today the appellants are in possession of the suit property admeasuring :3: :3: :3: 1588.93 sq. mtrs. and they cannot be dispossessed without following due process of law. Mr.Godbole submitted that the appellants are in established possession of the suit property, and they got into possession as sub-lessee of respondent no.2 and, therefore, their possession cannot be disturbed by the respondents without following due process of law. 4. Respondent No.2 is a lessee of respondent no.1 of the larger property admeasuring 92,227 sq. yards. According to the appellants, initially 2154 sq. mtrs. of land, out of the said larger property, was subleased in their favour by respondent no.2 under the lease/agreement. The appellants claim that a small portion of the said property, subleased to them, was acquired for a road widening and they continued to be in possession of 1588.93 sq. mtrs. (for short "the suit property"). It is pertinent to note that a lease/agreement, on the basis of which the appellants claim possession over the suit property has not been produced on record by the appellants. In the earlier round of litigation, when the City Civil Court had refused to grant ad-interim injunction vide order dated 19.6.2006 and when the appeal from order against that order was rejected vide order dated 8th September, 2006, the learned Single Judge observed that the appellants failed to :4: :4: :4: produce on record a copy of the lease/agreement under which he claims to be in possession of the suit property. Even thereafter the appellants have not produced on record the lease/agreement on the basis of which they claim to be in possession of the suit property. Even at this stage, when I asked for a copy of the agreement/lease, Mr.Godbole, expressed his inability to produce the lease/agreement under which the appellants claimed to have come in possession of the suit property. 5. I have perused the judgment and order dated 9th January, 1976 passed in Misc. Appeal No.71 of 1975. Even in this judgment I do not find any reference or description of the suit property, i.e. the land admeasuring 1588.93 sq. mtrs., as a subject matter of the said appeal. That judgment, in my opinion, will not help the appellants to seek the relief, as prayed, in respect of the suit property admeasuring 1588.93 sq. mtrs. 6. In the present suit the appellants-plaintiff have described the suit property in paragraph 1 of the plaint as under: ".... .... .... The Plaintiffs state that the Plaintiffs acquired the premises admeasuring about 2154.75 sq. mtrs. from H.S.C.I. and N.S.C.I. was the lessee of the :5: :5: :5: Municipal Corporation and on 28.2.1967 by an lease/agreement the said N.S.C.I had handed over the said possession of the premises which was taken over by the Plaintiffs and have been on saying the same which was used for storing the goods, articles of the plaintiffs and however, since there was proposal for Road line some portion of the said premises was allowed to use as Road and at present about 1788.93 sq. mtrs. of the premises is in possession of the plaintiffs situated at C-11, Vallabhbhai Patel Stadium, Lotus Cinema, Behind Nehru Centre, Mumbai 400 018 and the said premises shall be hereinafter called the suit premises for the purpose of brevity." 7. The suit property, admittedly is a part of the larger property admeasuring 92,227 sq. yards which was leased out in favour of respondent no.2. Keeping that in view, the description given by the appellants is not sufficient to identify the land in respect of which the interim relief, as prayed in the notice of motion is sought. It was obligatory on the appellants-plaintiffs to give proper description of the suit property alongwith boundaries and also to produce on record the map thereof, as observed by the learned Single Judge in the earlier round of litigation in the order dated 8th September, 2006. Under Order 7 Rule 3 of the C.P.C. it requires that the plaint should contain description of the suit property sufficient to identify it and in case the property can be identified by boundaries the plaint shall specify the boundaries. Though such :6: :6: :6: observations were made in the order dated 8.9.2006, the appellants did not even make an attempt to amend the plaint and place on record the correct description of the suit property. From perusal of paragraph 1 of the plaint, it is clear that the description of the suit property given in the plaint is incomplete and it is not possible to identify the same. The boundaries or even the dimensions (length and breadth) of the suit property are not mentioned in the plaint. Mr.Godbole, learned counsel for the appellants fairly conceded that it is not possible to identify the exact location of the suit property out of the larger property admeasuring 92,227 sq. yards. At this stage the case of the respondents will have to be noticed. According to the respondents, as of today the appellants are not in possession of the suit property and the structure was also removed after the order of the Supreme Court in the proceedings arising from the suit challenging section 351 notice. It is against this backdrop the relief as prayed, in my opinion, cannot be granted. 8. Moreover, the appellants have not approached the court with clean hands. The appellants had instituted a suit (L.C.Suit No.5901 of 1985) in 1985 against the respondents, in respect of the very same subject matter, when the corporation had issued :7: :7: :7: notice under section 351 of the BMC Act, and the appellants had lost the said litigation right up to the Supreme Court. When the appellants filed the instant suit they did not disclose about the previous suit (L.C.Suit No.5901 of 1985), but made a positively false statement in paragraph 9 of the plaint stating that "the plaintiffs have not filed any suit or proceedings either in the City Civil Court or in any other court touching the subject matter of the suit". This was specifically noticed and mentioned by the learned Single Judge in the order dated 8.9.2006 by which the Appeal from Order, against the order of the City Civil Court dated 19.6.2006, rejecting ad-interim relief in favour of the appellants, was dismissed. That order of the learned Single Judge dated 8.9.2006 was carried to the Supreme Court and the Supreme Court confirmed the said judgment vide order dated 13.2.2006. Thereafter it appears that a contempt petition was taken out by respondent no.2 for non-compliance of the undertaking furnished to the Supreme Court. The undertaking was accepted by the Supreme Court vide order dated 13.2.2006. The Supreme Court by order dated 1.9.2006, disposed of the contempt petition by accepting unqualified apology tendered by the appellants for having not complied with the order dated 13.2.2006. The Supreme Court while accepting :8: :8: :8: the unqualified apology tendered by the appellants in its order dated 1.9.2006 has observed thus: ".... .... .... We, however, noted with dismay the conduct of the contemnors. Despite the order passed by this Court and undertaking given by them they filed a suit before the City Civil Court, allegedly by suppressing all material facts. The conduct of the respondents is deprecable." 9. Even after the aforementioned observations were made by the learned Single Judge in order dated 8.9.2006 and by the Supreme Court in its order dated 1.9.2006, the appellants, in the memo of the appeal from order, have gone to the extent stating that "they did not make any reference to the earlier suit as it was not required since both the litigations arise from two different cause of actions". It is thus clear that there was clear suppression of material facts and the suppression was not innocent and it, therefore, deserves to be deprecated, as is observed by the Supreme Court. 10. I have perused the entire material placed before the court. The appellants have miserably failed to prove that they were put in possession by respondent no.2 of the entire suit property admeasuring 1588.93 sq.mtrs. under the lease/agreement. The very source of possession, :9: :9: :9: namely, the lease/agreement has not been produced by the appellants. That apart, in the suit challenging the notice under section 351 of the BMC Act, it appears that a declaration was sought to the effect that the plaintiffs, namely, the appellants in the present proceedings were sub-lessee in respect of the suit land admeasuring 1588.93 sq. mtrs. That issue was, however, deleted. As has been rightly observed by the learned Single Judge in the order dated 8.9.2006, the reasons for deletion of the issues are not clear. It appears that the suit property in the instant suit, was also the subject matter of the previous suit and a declaration was sought in respect thereof. In view thereof the learned Single Judge had asked for a copy of the plaint in the previous suit which the appellants failed to produce on record. Even before this court a copy of the plaint was not placed on record despite specific directions, for the reasons best known to the appellants. In the result, the appellants are not entitled for the relief, as prayed in the appeal from order. The appeal from order is, accordingly, dismissed. Consequently, the civil application is also disposed of. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)