1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.704 OF 2010 WITH CIVIL APPLICATION NO.2799 OF 2010 1. Vinay S/o.Ambadas Kaikini, Male, Indian Inhabitant, Residing at Room No.4, Purshottam Building No.”B”, Purshottam Tribhuvandas Road, Mumbai 400 004. 2. Ajit Maneshwar Shetty, Adult, Occupation: Business, Indian Inhabitant, carrying on business at Room No.4, Purshottam Building No.”B”, Purshottam/Tribhuvandas Road, Mumbai 400 004. .. Appellants V/s The Court Receiver, High Court of Judicature at Bombay, having her office at Bank of India Building, M.G.Road, Mumbai 400 001. .. Respondent Mr.K.K.V.Kurup for the Appellants. Mr.Y.S.Bhate for the Respondent. CORAM: R.G.KETKAR, J. DATE: 13th September, 2010. JUDGMENT: 1. Heard Mr.K.K.V.Kurup, learned counsel for the Appellants and Mr.Y.S.Bhate, learned counsel for the Respondent at length. Admit. Mr.Bhate waives service on behalf of the Respondent. By consent of the parties, appeal is taken up for final hearing forthwith. 2. This appeal is preferred by the original Defendants challenging the judgment and decree dated 22nd February, 2 2010 passed by learned Judge of the Bombay City Civil Court at Bombay in S.C.Suit No.1154 of 2000. By that judgment, the learned trial Judge decreed the suit instituted by Respondent in terms of prayer clause (a). Appellants shall hereinafter be referred as original Defendants and Respondent shall hereinafter be referred as plaintiff. The facts giving rise to the filing of the present appeal are as under:- 3. Plaintiff instituted suit for declaration that Defendants are tresspassers qua the premises bearing Room No.4 in Purshottam Building No.B, situate at Purchottam Tribhuwandas Road, Mumbai 400 004 (for short the suit premises) and for direction to the Defendants to quit, vacate and hand over vacant and peaceful possession of the suit premises in favour of the plaintiff for implementation of the orders passed by the City Civil Court, Mumbai. Plaintiff came with the case that one Narayan Shivram Thakur had filed S.C.Suit No.9083 of 1969 in the City Civil Court at Bombay for dissolution of partnership firm viz. Sunder Printing Press and for consequential reliefs therein against its partners Vishwanath Ramchandra Sawant being Defendant No.1 and Vasant Achyut Desai being Defendant No.2. Partnership was carrying on business from Room Nos.3, 4 and 6 in Purshottam Building No.B. Room Nos.3, 4 and 6 were tenanted premises. There was common rent receipts for Room Nos.3 & 4 which stood in the name of one Nanabhai Parab, original tenant of 3 the said rooms. Even at present in respect Room Nos.3 & 4 rent receipts stand in the name of said Parab. The monthly rent of Room Nos. 3 & 4 is Rs.347/-. Plaintiff further asserted that rent receipts in respect of Room No.6 was and/or is in the name of Defendant No.2-Vasant Achyut Desai in Suit No. 9083 of 1969. Plaintiff and the Defendants in the the said suit were in use and occupation and possession of the Room Nos.3, 4 and 6 and were carrying on partnership business from the said premises. The rent of Room Nos.3 & 4 was regularly paid by Defendant No.2 – Vasant Desai in the said suit and after his death, by his heirs and legal representatives. 4. Suit No.9083 of 1969 was amicably settled between the parties and they filed consent terms dated 27th April, 1981. Under clause 4 of the consent terms, Court Receiver, High Court, Bombay was appointed as a receiver of all assets of the suit partnership and also of tenancy rights of the premises held by the partnership firm, as also of the business carried on by the partnership firm. The decree came to be passed in terms of the consent terms dated 27th April, 1981. 5. It is the case of the plaintiff that Defendant No.1 - Smt.Garijabai R.Kaikini and original Defendant No.2 – Ambadas Ramrao Kaikini in the present suit claimed to be heirs and legal representatives of Ramrao Kaikini who was purportedly in possession of the suit premises. Presently Defendants No.3- Ajit M.Shetty is in possession of the suit 4 premises illegally and he was put in possession by Smt.Girijabai and Ambadas Kaikini. 6. Plaintiff further asserted that in Suit No.9083 of 1969, said Ramrao took out Notice of Motion No.1176/1982 for possession of Room No.3, alleging that the same was handed over by Court Receiver to Mr. Ashok Vishwanath Sawant, son of Defendant No.1 in Suit No.9083 of 1969. Said Ramrao also sought protection against eviction from suit premises and prayed that he should not be evicted from the suit premises without following due process of law. Said Notice of Motion was opposed by Mr.Ashok Vishwanath Sawant by filing reply. 7. Plaintiff further asserted that Vasant Achut Desai, Defendant No.2 in Suit No.9083/1969 took out Notice of Motion No. 2159/1982 in the said suit for direction to the Court receiver to take possession of the suit premises from the said Ramrao in terms of the consent terms dated 27th April, 1981. Notice of Motion No.1176/1982 as also Notice of Motion No.2159/1982 were disposed of in terms of the consent terms dated 13th July, 1982 entered into between the parties to the suit as also said Ramrao and Ashok Sawant. In clause (2) of the said consent terms, Applicant No.1 Ramrao handed over symbolic possession of the suit premises and the Court Receiver was permitted and authorised to adopt legal proceedings against Ramrao for obtaining actual physical possession from him. 8. It is the further case of plaintiff that plaintiff and Defendants in 5 Suit No.9083 of 1969 came to know about death of Ramrao and therefore constituted attorney of the plaintiff in Suit No. 9083 of 1969 addressed a letter dated 16th February, 1994 to the Court Receiver (plaintiff herein) and requested the later to make enquiries about physical possession of the suit premises. Pursuant to this letter, the constituted attorney of the plaintiff in Suit No.9083 of 1969, Mr.Prashant Joshi, one of the officers of plaintiff herein, visited the suit premises on 8th October, 1996 and found Defendant No.3- A.M.Shetty and his employees in possession and they were using the suit premises for manufacture of Agarbattis. Said officer prepared report dated 8th October, 1996. During the visit of the officer it was revealed that the said Ramrao expired on 5th February, 1986. Plaintiff therefore convened meeting in it’s office on 9th December, 1996 and called upon Defendant No.1 Smt.Girijabai and original Defendant No.2 Mr.Ambadas to quit, vacate the hand over vacant possession. Smt.Girijabai and Mr.Ambadas took out the Chamber Summons No.54 of 1996 in Suit No.9083 of 1969 for substitution of their names in place of original applicant Ramrao Kaikini. On 12th March, 1997 order was passed in the said Chamber Summons directing the Court Receiver to visit the suit premises to find out as to who is in actual possession. The officer of the Court Receiver visited the premises on 12th March, 1997 at 4.30 p.m.and submitted report dated 13th March, 1997. Chamber 6 summons was dismissed on 20th March, 1997 and the learned Judge of the City Civil Court directed the plaintiff herein to institute suit against the persons found in possession of the suit premises on or before 13th April, 1997. 9. Plaintiff further asserted that Defendant No.1 – Smt.Girijabai and original Defendant No.2 Mr.Ambadas took out Notice of Motion No.2622 of 1998 in Suit No.9083 of 1969 for transferring tenancy rights of the premises in favour of Appellants-Defendants Nos.1 and 2. Plaintiff further submitted that, as such the Defendants are tresspassers, and as the tresspass is a continuing wrong, suit is not barred by law of limitation. On these among other assertions, plaintiff instituted the suit. 10.The Defendants filed written statement interalia contending that they are tenants of the suit premises and therefore City Civil Court has no jurisdiction to entertain and try the suit, and only the rent court will have jurisdiction to decide the issues involved in the suit. It was further contended that plaintiff has not impleaded all the necessary parties to the suit and consequently suit is liable to be dismissed for non-joinder of necessary parties. Defendants contended that the suit is also barred by limitation. Under the consent terms dated 27th April, 1981, Court directed the Court Receiver to take appropriate action for recovery of possession, however, present suit was instituted on 11th January, 2000 and consequently the same 7 suffers from gross delay and latches. Defendants also submitted that Defendant No.1 Girijabai instituted RAD Suit No.806 of 2000 in the Court of Small Causes at Bombay for declaration that she and Ambadas are the tenants of the suit premises and consequently they cannot be evicted therefrom, otherwise than due process of law. It was further contended that the Notice of Motion No.1176 of 1982 and Notice of Motion No.2159 of 1982 were disposed of by consent terms dated 13th July, 1982. The consent terms provided that Ramrao handed over symbolic possession of the suit premises to the Court Receiver and the Court Receiver was authorised to adopt legal proceedings for obtaining actual physical possession form Ramrao. Even from that time onwards, no action was taken and the present suit instituted on 11th January, 2000 suffers from gross delay and latches. 11.Defendants further submitted that at any rate on 20th March, 1997 the Court directed plaintiff to institute suit on or before 13th April, 1997. Pursuant to that direction, no suit was instituted within the stipulated time and even otherwise suit suffers from gross delay and latches. It was also submitted that the plaintiff is claiming mesne profits and/or compensation from the Defendants @ Rs.3000/- p.m.from the date of filing of the suit and therefore, the City Civil Court will have no pecuniary jurisdiction to entertain and try the suit as suit will have to be valued on the basis of 150 times of the monthly 8 compensation. On these among other grounds, the Defendants resisted the suit. 12.On the basis of rival pleadings of the parties, the learned Trial Judge framed necessary issues. Plaintiff examined Mr.Ajay Yashwant Melekar, constituted attorney of the plaintiff as PW1 and the Defendants examined Defendant No.2 Mr.Ajit M.Shetty. Both the parties produced documents in support of their case. 13.Considering the evidence on record, by the judgment and decree the trial Court decreed the suit in terms of prayer clause (a) of the plaint and declared that the Defendants are tresspassers qua the suit premises and they were further directed to quit, vacate and hand over vacant and peaceful possession of the suit premises in favour of the plaintiff for implementation of the orders passed by this Court. 14.By order dated 13th July, 2010 Record & Proceedings of the case was called for. Learned counsel for plaintiff also filed compilation of relevant documents. With the assistance of learned counsel appearing for the parties I have gone through the record and proceedings of the case. 15.In support of this appeal, I have heard Mr.K.K.V.Kurup, learned counsel for the Defendants and Mr.Y.S.Bhate, learned counsel for the plaintiff at length. Mr.Kurup, learned counsel for Defendants raised the following contentions: (1) City Civil Court, Mumbai has no jurisdiction to entertain 9 and try the suit. Defendants are the tenants of the suit premises and are not the tresspassers. If that be so, only the rent court will have jurisdiction to decide the issues involved in the suit. (2) Even otherwise, the City Civil Court, Mumbai will have no pecuniary jurisdiction to entertain and try the suit. Plaintiff has claimed compensation @ Rs.3000/- p.m and consequently, plaintiff will have to value the suit for possession on the basis of 150 times of the monthly compensation. (3) Under order dated 27th April, 1981, the Court Receiver, High Court, Bombay was directed to institute the suit for obtaining possession of the suit premises and the present suit is instituted on 11th January, 2000. Suit therefore clearly suffers from gross delay and latches and is liable to be dismissed. 16.On the other hand, Mr.Bhate, learned counsel for the plaintiff supported the impugned judgment and decree. He submits that Defendants are clearly the tresspassers and are not the tenants. Defendant No.1 had instituted RAD Suit No.806 of 2000 in the Court of Small Causes at Bombay for a declaration that she and Ambadas are the tenants of the suit premises. Said suit was dismissed for default and no steps were taken for restoration of the said suit. He therefore submitted that it is not open to the Defendants now to contend that they are tenants of the suit premises. He further submitted that the monthly rent in respect of the Room Nos.3 and 4 is Rs.347/- and therefore rate of monthly rent for Room No.4 being the suit premises 10 would be one half of Rs.347/- i.e.Rs.173.50 per month. The suit is for a declaration and possession and is valued at Rs. 26025/- i.e.150 times of Rs.173.50. He therefore submitted that the City Civil Court, Mumbai will have pecuniary jurisdiction as well to entertain and try the suit. He submitted that the Defendants are tresspassers and the tresspass being a continuing wrong, having regard to Section 22 of the Limitation Act, 1963, (for short the Act) a fresh period of limitation begins to run at every moment of time during which the breach continues. He therefore submitted that suit is not barred by limitation. He prayed for dismissal of the appeal. 17.I have considered the rival submissions made by learned counsel for the parties. With the assistance of learned counsel for the parties, I have carefully gone through the material on record. Considering the rival contentions raised by the parties, following points arise for my determination:- (1) Whether plaintiff proves that Defendants are tresspassers in the suit premises? Answer:- Affirmative. (2) Whether plaintiff proves that Defendant No.1 Girijabai and original Defendant No.2 Ambadas had illegally inducated Defendants No.3 (now Def.No.2) Ajit M.Shetty in the suit premises? Answer:- Affirmative. (3) Whether Defenants prove that the City Civil Court, 11 Mumbai has no jurisdiction to entertain and try the suit? Answer:- Negative. (4) Whether Defendants prove that the suit is time barred? Answer:- Negative. (5) Whether Plaintiff is entitled to decree against Defendants as prayed for? Answer:- Affirmative. (6) What order? Answer:- As per the final order. 18.Before I consider the merits of the case, brief reference to the checkered history of the litigation is required to be mentioned. As indicated earlier, Narayan Shivram Thakur had instituted Suit No.9083/1969 in the City Civil Court at Bombay against his partners Defendant No.1 Vishwanath Sawant and Defendant No.2 Vasant Achyut Desai for dissolution of partnership firm viz. Sunder Printing Press and for consequential reliefs. On 18th December, 1969 upon the application made by Advocate appearing for said Thakur and upon reading the affidavit of Thakur affirmed on 17th December, 1969 and upon reading plaint declared on 17th December, 1969 and also upon hearing learned Advocate for Mr.Thakur in support thereof, the learned Judge of the City Civil Court ordered that until hearing & final disposal of the 12 Notice of Motion, the Court Receiver, High Court, Bombay be appointed interim receiver for the limited purpose of taking charge of books of accounts among others. Learned Trial Judge further ordered that in the meantime and until hearing and final disposal of the said Notice of Motion, Defendants and their servants be restrained from disposing of the assets, books of accounts, documents, vouchers and papers, except in the ordinary course of business. Thus by order dated 18th December, 1969 learned trial Judge restrained Defendants being Defendant No.1 Vishwanath Sawant and Defendant No. 2 Vasant Achyut Desai from disposing of the assets of the partnership firm. 19.By order dated 16th February, 1970 learned Judge of the City Civil Court, Bombay appointed Court Receiver and the Notice of Motion was made absolute in terms of prayer clauses (a) and (b). Mr.Vasant Achut Desai, Defendant No.2 in S.C.Suit No.9083/1969 took out Chamber Summons on 17th December, 1973 against Plaintiff - Narayan Thakur and Defendant No.1 – Vishwanath Sawant praying for a direction to the Court Receiver to take possession of the assets, running business etc. and the tenancy rights of the entire premises of Sunder Printing Press, if necessary by force and assistance of police authorities. On 29th March, 1974 learned Chamber Judge, after hearing Advocate for Defendant No.2 (Vasant Achyut Desai) in support of the Chamber Summons, and the 13 Advocate for Plaintiff (Mr.Thakur), as also Advocate for Defendant No.1 (Vishwanath Sawant), by consent appointed the Court Receiver of the suit partnership. Court Receiver was directed to make inventory of the assets of the partnership and to appoint Defendant No.1-Vishwanath Sawant as an agent of the Court Receiver without security on certain terms and conditions. 20.Parties to the suit No.9083/1969 entered into the consent terms on 27th April, 1981. Under clause 4 of the consent terms, Court Receiver, High Court, Bombay was appointed Receiver of all the assets of the suit partnership and also of the tenancy rights of the premises held by the suit partnership. Court Receiver was directed to take all necessary legal steps to recovery possession from the persons who may obstruct possession and to file all necessary suit for that purpose. Clause 4 of the said consent terms reads as under:- “By consent Court Receiver, High Court, Bombay, be and is hereby appointed Receiver of all the assets of the suit partnership and also of the tenancy rights of the premises held by the suit partnership and also of the business carried on by the suit partnership at Purshottam Buildijng, Tribhuvandas Road, Bombay 400 004. The Court Receiver do act on the certified copy of the Roznama of the order passed herein and to take possession of the suit partnership business alongwith the premises thereof at Purshottam Building, Tribhuvandas Road, Bombay 400 004. The court Receiver do take all necessary legal steps to recover possession from any person who may obstruct possession and do file all necessary suits for that purpose.” 14 21.Mr.Ramrao Kaikini claiming to be in possession of the suit premises took out Notice of Motion No.1176/1982 in Suit No. 9083/1969 on 13th January, 1982 praying interalia for mandatory injunction to the Court Receiver to hand over back possession of Room No.3 as also for injunction restraining the Court Receiver from taking possession of the suit premises. In support of this Notice of Motion, Ramrao filed affidavit contending interalia that he was wrongly dispossessed from Room No.3 and that Defendant No.1 Vishwanath Sawant gave him Room No.3 and suit premises on 11th March, 1972 on leave & licence basis. He claims to be in exclusive possession of Room No.3 and the suit premises from 11th March, 1972. This Notice of Motion was opposed by Mr.Ashok V.Sawant, son of Defendant No.1, by filing affidavit in reply dated 28th June, 1982. 22.Defendant No.2 in Suit No.9083/1969 viz. Vasant Achyut Desai took out Notice of Motion No.2159/1982 on 26th April, 1982 praying for direction to the Court Receiver to take possession of Room No.4 being suit premises from Ramrao Kaikini in terms of the decree dated 27th April, 1981 by removing obstruction, if any and by assistance of police, if required. In support of this Notice of Motion, Mr.Vasant Achyut Desai filed affidavit dated 26th April, 1982. Notice of Motion No.1176/1982 taken out by Ramrao and the Notice of 15 Motion No.2159/1982 taken out by Defendant No.2 Vasant Achyut Desai were disposed of by consent terms dated 13th July, 1982. Clause 2 of the consent terms reads as under:- “By consent, the 1st applicant do hand over symbolic possession of Room No.4 at present in his occupation to the Court Receiver, High Court, Bombay. Court Receiver is hereby permitted and authorised to adopt legal proceedings against the 1st applicant herein for obtaining actual physical possession of the said Room No.4 from the 1st applicant. Till the final disposal of these proceedings the Court Receiver will not dispossess the 1st applicant so long as he continues to pay a sum of Rs.75/- p.m on or before the 10th day of each and every calender month in advance from 1st July, 1982 to the court Receiver without committing any default.” Under clause 2 it provided for Ramrao handing over symbolic possession of the suit premises at that time in his occupation to the Court Receiver, Bombay. Court Receiver was permitted and authorised to adopt legal proceedings against him for obtaining actual physical possession of the suit premises. 23.It is the case of the plaintiff that subsequently the plaintiff and Defendants in Suit No.9083 of 1969 came to know that said Ramrao had died. Therefore the constituted attorney of plaintiff, viz.Prashant Joshi addressed a letter dated 16th February, 1994 to the Court Receiver for making inquiries about the physical possession of the suit premises. Pursuant thereto, officer of the Court Receiver visited the premises on 8th October, 1996 and inquired about the possession of suit 16 premises. During his visit, it transpired that Appellant No.2 herein Mr.A.M.Shetty and his employees were found in possession. Officer prepared report dated 8th October, 1996. Pursuant to that, a meeting was convened in the office of Plaintiff on 9th December, 1996 and Smt.Girijabai and Mr.Ambadas original Defendant No.2 and Mr.Vinay Ambadas claiming to be heirs and legal representatives of Ramrao were called upon to quit and handover vacant and peaceful possession of the suit premises. 24.Smt.Girijabai and Mr.Ambadas took out Chamber Summons No.54 of 1996 in Suit No.9083/1969 for substituting their names, which was dismissed on 20th March, 1997 and the plaintiff was directed to institute suit on or before 13th April, 1997. It is the case of the plaintiff that Defendants are the tresspassers and the tresspass being a continuing wrong, suit instituted on 11th January, 2000 is within limitation. 25.The aforesaid facts are brought on record by PW Mr.Ajay Yashwant Melekar. He was cross-examined by Defendants. Mr.Kurup submitted that the said witness has no personal knowledge and consequently, his evidence cannot be taken into consideration. I do not find any merit in this submission. The witness has produced documents on record, which are in the nature of proceedings of the Court. He has deposed on the basis of these documents. The submission that he does not have personal knowledge, in my opinion, is devoid of any 17 substance. 26.Defendants examined Ajit M.Shetty. In the affidavit in examination in chief, he stated that original Defendant No.1 Girijabai in the present suit had instituted RAD suit No.806 of 2000 in the Court of Small Causes at Bombay for declaration that she and Ambadas are the tenants of the suit premises. Girijabai is real sister of his mother. Ambadas, original Defendant No.2 died on 1st September, 2000 and his son Vinay is brought on record. Girijabai expired on 8th August, 2003. As such, suit is now against Defendant No.1 Vinay and Defendant No.2 Ajit M.Shetty. He deposed that the present suit suffers from gross delay and latches and is beyond limitation. In the cross-examination, DW Mr.Shetty expressed ignorance about the orders dated 18th December, 1969 (injunction order) and 16th February, 1970 (order appointing Court Receiver). He admitted that Defendant No.1 Vinay has not given power of attorney to him to appear in this matter. Initially he deposed that he did not know as to whether said suit was numbered R.A.D. Suit No.806 of 2000. He however admitted that suit was filed by Girijabai and Ambadas and in that suit he had filed affidavit to bring heirs and legal representatives of Ambadas on record. He was not sure as to whether the suit was dismissed in default. He further deposed that the suit was dismissed in default. He admitted that he does not have any document to show that the suit premises was transferred in his 18 favour. He however volunteered that he has rent/compensation receipts issued by the Court Receiver. 27.From the material on record, it is abundantly clear that by order dated 18th December, 1969 passed in Suit No.9083/1969 learned Judge of the City Civil Court restrained the Defendants from