-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 ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1280 OF 2008 NOTICE OF MOTION NO. 1280 OF 2008 NOTICE OF MOTION NO. 1280 OF 2008 IN IN IN SUIT NO.1068 OF 2008 SUIT NO.1068 OF 2008 SUIT NO.1068 OF 2008 Shammi Nagpal, .. Plaintiff. Vs 1. Sudhir Nagpal, Director of Hotel Taj-President... 2. Indian Hotels Company Ltd, 3. Commissioner of Police .. Defendants. Mr V.A.Thorat with Satish Maneshinde, i/b N.S.Nappines and Ms. Jayashri Manjrekar, for the plaintiff. Mr Janak Dwarkadas, senior counsel, with Mr. D.D.Madaon, senior counsel, Mr Rahul Narichania and Sanjay Parab i/b Haresh Joshi & Co, for defendant no.1. Mr Iqbal Chhagla, senior counsel, with Mr Naveen Agarwal i/b Mulla & Mulla for defendant no.2. Ms Uma Palsule Desai, AGP, for defendant no.3. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 6th May, 2008 DATE : 6th May, 2008 DATE : 6th May, 2008. ORAL ORDER: ORAL ORDER: ORAL ORDER: (PER D.B.BHOSALE,J.) (PER D.B.BHOSALE,J.) (PER D.B.BHOSALE,J.) 1. This Notice of Motion is taken out by the plaintiff seeking directions to the defendants to forthwith hand over and restore to the plaintiff the vacant and peaceful possession of the premises being flat no.209, Olympus Apartments, Altamound Road, Mumbai -2- (for short, "the suit premises") and, in the alternative, for the appointment of the Court Receiver, High Court, Bombay as Receiver for the suit premises and put the plaintiff in possession thereof as an agent without royalty or compensation. The plaintiff is further seeking a direction to the defendants to restore to the plaintiff all movable furniture/articles taken from the suit premises. The plaintiff has also prayed for the appointment of a Commissioner to inspect and take an inventory of the suit premises and for an injunction restraining the defendants from in any manner dealing with, disposing of, alienating, encumbering or creating third party rights of any nature whatsoever in respect of the suit premises. The suit is instituted under section 6 of the Specific Reliefs Act, 1963 alleging forcible dispossession from the suit premises between 14.3.2008 and 17.3.2008 when the plaintiff was out of India. 2. The relevant factual matrix, as disclosed from the material placed before this Court and the submissions, that are advanced by the learned senior counsel for the parties , to the extent it is necessary for deciding this motion, is as under. Defendant no.1 and the plaintiff are husband and wife, who got married on 1.9.1987. Till 1993, they resided with the parents -3- of defendant no.1. Defendant no.1 is a Director of Piem Hotels Limited (for short, "Piem"). During the period between 1993 and 1995, they were staying in Hotel President. In 1995 the suit premises was purchased by Piem as Director’s accommodation for defendant no.1. According to the plaintiff, she and defendant no.1 resided at the suit premises from 1996 onwards till she was dispossessed in March, 2008. 2.1 On 1.4.2005, defendant no.1 was appointed as the IT Advisor of defendant no.2 - Indian Hotels Co.Ltd and it was then continued vide letter dated 7.3.2007. His appointment was thereafter confirmed by defendant no.2 vide letter dated 24.8.2005. Subsequently, Piem granted licence of the suit premises to defendant no.2 by entering into a Leave and Licence Agreement for the period from 1.8.2005 till 31.7.2007. According to defendant no.2, this agreement was thereafter renewed and it was subsisting till the possession of the suit premises was surrendered by defendant no.1 to them on 17.3.2008. After entering into the Leave and License Agreement, defendant no.2 had allotted the suit premises to defendant no.1 vide their letter dated 20.10.2005. A Service Occupancy agreement was also entered into between the defendants on 20.12.2005 and since then it appears that defendant no.1 continued to -4- be in possession of the suit premises as a licensee. 2.2 The plaintiff and defendant no.1 stayed in the suit premises till August 2006. On 12.8.2006 defendant no.1 left the suit premises and started residing at Taj President at Cuffe Parade and since then, according to the plaintiff, she was in exclusive possession of the suit premises till she was illegally dispossessed. 2.3 In December,2006 defendant no.1 had filed M.J.Petition No.A 210 OF 2007 for annulment of the marriage before the Family Court at Bandra, Mumbai. The said petition, however, came to be disposed of by the Family Court for want of jurisdiction. 2.4 According to the plaintiff, some time in November-December 2006, upon the advice of defendant no.1 she had changed the front door locks of the suit premises since it was found damaged. In January and February, 2008 there were complaints of water leakage from the suit premises which, according to the defendants, were not properly attended to and that the suit premises was also not properly maintained by the plaintiff. 2.5 On 13.3.2008 the plaintiff left on a business -5- trip to Germany and Singapore. On 14.3.2008, defendant no.2 issued a purported termination letter of the service occupancy agreement to defendant no.1. Some time between 14.3.2008 and 17.3.2008 defendant no.1 allegedly entered the suit premises, purportedly through the side door, and cleared out a total of 133 cartons of personal belongings of the plaintiff and stored the same in a godown at Vashi. Out of the 133 cartons defendant no.1 claims that 79 were of the plaintiff and the remainder were his belongings. This bifurcation has not been disputed by the plaintiff. After vacating the suit premises, defendant no.1 handed it over to defendant no.2 on 17.3.2008. 2.6 Defendant no.1 thereafter on 18.3.2008 informed the plaintiff by an e-mail about the alleged termination of the service occupancy agreement and handing over of the suit premises to defendant no.2 after clearing out all the belongings in the suit premises. The plaintiff claims that she saw the e-mail on 19.3.2008 when she first came to know of an alleged agreement of Leave and License and her forcible dispossession of the suit premises. She returned to Mumbai on 19.3.2008 and since she could not enter the suit premises in view of the changed locks to the main door she has approached this Court by way of instant -6- suit. 3. It appears that since the society refused permission to defendant no.2 to induct its employees in the suit premises for want of NOC from Piem, it remained vacant till filing of the suit and thereafter till this date in view of the statement made by their learned senior counsel. When the Motion was placed before this Court for ad-interim relief, the learned counsel for the parties have agreed for final disposal at this stage and accordingly it was adjourned to enable the parties to file their affidavits, rejoinders, sur-rejoinder etc. 4. In short, the case set up by the plaintiff is that she was residing at the suit premises for 13 years and it was her matrimonial home till she was dispossessed in March, 2008. She was in exclusive possession thereof since August, 2006 when defendant no.1 had moved out and was residing separately at the Hotel Taj President. The defendants have colluded illegally and forcibly evicted her from the suit premises in her absence and without her consent between 14.3.2008 and 17.3.2008 and have illegally removed her personal and precious belonging from the suit premises during the above period when she was out of India. -7- 4.1 On the other hand, according to the defendants, defendant no.2 had allotted the suit premises to defendant no.1 who, as per the terms of employment, was entitled to a furnished residential accommodation from defendant no.2. In January, 2008 they learnt that the suit premises were being neglected and were badly maintained. During this time, defendant no.2 also came to know that the lock to the main door of the suit premises had been unlawfully and illegally changed. In view of these breaches committed by defendant no.1, by virtue of their right under the service occupancy agreement, defendant no.2 terminated the said agreement. The suit premises were accordingly handed over by defendant no.1 to defendant no.2 to avoid legal and/or penal action being taken against him and the plaintiff. 5. I have heard learned senior counsel for the parties at great length and with their assistance gone through the entire material placed before this Court. Mr Thorat, learned senior counsel for the plaintiff, at the outset, submitted that the suit premises belonged to Piem and when the plaintiff was dispossessed, defendant no.2 had no right to claim possession thereof either from her or from defendant no.1. The plaintiff -8- and defendant no.1 were allotted the suit premises by Piem in 1995-96 and they continued to be in possession till last. 5.1 Mr.Thorat submitted that the plaintiff had no knowledge about the Leave and Licence and Service Occupancy Agreements. But he then submitted that the suit premises were given on a leave and licence by Piem to defendant no.2 only for a period of two years expiring the said period on 31.7.2007. After this date, defendant no.2 has absolutely no right, title or interest in and to the suit premises. Mr.Thorat, submitted that defendant no.2 had no right either in law or equity to make any claim whatsoever in or to the suit premises or to any alleged breach of the terms of the service occupancy agreement or to question the right of the plaintiff to reside at the suit premises considering that defendant no.1 was separated from her. He submitted that there was a collusion between the defendants who committed the illegal act of forcibly dispossessing the plaintiff without following due process of law. 5.2 Next Mr Thorat submitted that at no point of time Piem had physically handed over the suit premises to defendant no.2 and there was no disturbance to her -9- continuous possession of the suit premises. He submitted that the plaintiff was residing at the suit premises alone and she was not aware about the service occupancy agreement in respect of the suit premises entered between the defendant. In fact, defendant no.1 had no keys of the main door and in view thereof defendant no.1 has attempted to cover up the fact of forcible entry by alleging entry through the side door in his affidavit dated 16.4.2008. The said assertion, according to Mr Thorat, is patently false as the said side door had also been kept locked and latched from inside by the plaintiff. 5.3 Mr Thorat also invited my attention to the provisions in Domestic Violence Act and submitted, the plaintiff’s right as a wife of the defendant to share the home is well protected therein and the defendants have taken possession of the suit premises in flagrant violation of the provisions of the said Act. He submitted that both law and equity are in favour of the plaintiff, an estranged wife, whose husband has resorted to illegal means to gain oust her from her matrimonial home and to steal her belongings in her absence. He submitted, if the defendants wished to obtain possession, they ought to have followed the due process of law. The actions of the defendants in -10- unceremoniously throwing the plaintiff out of her home and depriving her of her personal belongings is in flagrant violation of her rights and in fact her privacy. 5.4 Lastly, Mr Thorat submitted that the defendants, who are very well placed in society and have a high standing and reputation, have unfortunately stooped to forcibly dispossessing the plaintiff by breaking open the front door and entering the suit premises and removing her possession in her absence, have committed several criminal acts and hence the reliefs sought in the Motion, deserve to be granted to protect and restore her rights in and to the suit premises. In support of his submissions, he placed reliance upon the following judgments:(i) B.P.Achala Anand Vs S. Appi B.P.Achala Anand Vs S. Appi B.P.Achala Anand Vs S. Appi Reddy- AIR 2005 Supreme court 986, (ii) Rama Gowda Vs Reddy- AIR 2005 Supreme court 986, (ii) Rama Gowda Vs Reddy- AIR 2005 Supreme court 986, (ii) Rama Gowda Vs M. Varadappa Naidu- (2004) 1 SCC 769, (iii) Dorab M. Varadappa Naidu- (2004) 1 SCC 769, (iii) Dorab M. Varadappa Naidu- (2004) 1 SCC 769, (iii) Dorab Cawasji Warden Vs.Coomi Sorab Warden - AIR 1990 Cawasji Warden Vs.Coomi Sorab Warden - AIR 1990 Cawasji Warden Vs.Coomi Sorab Warden - AIR 1990 S.C.867, (iv) Krishna Ram Mahale Vs Mrs Shobha Venkat S.C.867, (iv) Krishna Ram Mahale Vs Mrs Shobha Venkat S.C.867, (iv) Krishna Ram Mahale Vs Mrs Shobha Venkat Rao- (1989) 4 SCC 131, (v) Nagin Mansukhal Dagli Vs. Rao- (1989) 4 SCC 131, (v) Nagin Mansukhal Dagli Vs. Rao- (1989) 4 SCC 131, (v) Nagin Mansukhal Dagli Vs. Haribhai Manibhai Patel - AIR 1980 Bom.123, (vi) Haribhai Manibhai Patel - AIR 1980 Bom.123, (vi) Haribhai Manibhai Patel - AIR 1980 Bom.123, (vi) Prabhudas Damodar Kotecha Vs. Manharbala Jeram Damodar Prabhudas Damodar Kotecha Vs. Manharbala Jeram Damodar Prabhudas Damodar Kotecha Vs. Manharbala Jeram Damodar - 2007 (5) Bom CR 1. - 2007 (5) Bom CR 1. - 2007 (5) Bom CR 1. 6. On the other hand, Mr.Dwarkadas, learned senior -11- counsel for defendant no.1 submitted, the plaintiff was never in exclusive possession of the suit premises though defendant no.1 had removed himself from the suit premises for quite some time. Technically and legally defendant no.1 continued to be in possession, he being the allottee of the suit premises as an employee of defendant no.2. 6.1 Mr Dwarkadas submitted, the plaintiff and defendant no.1 were in possession of the suit premises by virtue of the service occupancy agreement dated 22.12.2005 and defendant no.1 was liable to surrender it on expiry or termination of the said agreement, which he did and, therefore, contention of the plaintiff that she was forcibly dispossessed is unsustainable in law. 6.2 Next, Mr Dwarkadas, submitted that defendant no.1 had free and unrestricted access to the suit premises all through out and he was never prevented by the plaintiff to have such access. He also had a lot of belongings lying in the suit premises and he used to visit it frequently until January 2008, when, the plaintiff unilaterally changed the locks to the front door. -12- 6.3 Right of the plaintiff, according to Mr Dwarkadas, to reside in the suit premises was subject to the service occupancy agreement and she had no independent right to stay in the suit premises. She was in occupation of the suit premise solely by virtue of being a family member of defendant no.1. 6.4 Mr Dwarkadas also took me through the affidavits, rejoinder and the pleadings in support of his submissions in response to the allegation that the documents executed between the defendants are suspect and that there was collusion between the defendants to dispossess her from the suit premises. Lastly, he submitted that under any circumstances she cannot claim any right to seek restoration of possession of the suit premises. In support of his submissions, he placed reliance upon the following judgments: (i) Vinodkumar Vinodkumar Vinodkumar Jain Vs Cox & Kings (India) Ltd & Ors -1995 (84) Jain Vs Cox & Kings (India) Ltd & Ors -1995 (84) Jain Vs Cox & Kings (India) Ltd & Ors -1995 (84) Comp.Cas, (ii) Gangabai wd/o Mahadeo Ramchandra Badve Comp.Cas, (ii) Gangabai wd/o Mahadeo Ramchandra Badve Comp.Cas, (ii) Gangabai wd/o Mahadeo Ramchandra Badve Vs Jankibai w/o Ramchandra Badve- ILR XLV Bombay Series Vs Jankibai w/o Ramchandra Badve- ILR XLV Bombay Series Vs Jankibai w/o Ramchandra Badve- ILR XLV Bombay Series 337, (iii) Lalita Jalan Vs Bombay Gas Company Ltd -AIR 337, (iii) Lalita Jalan Vs Bombay Gas Company Ltd -AIR 337, (iii) Lalita Jalan Vs Bombay Gas Company Ltd -AIR 2003 SC 3157. 2003 SC 3157. 2003 SC 3157. 7. Mr Chhagla, learned senior counsel for defendant no.2, submitted that party moving a civil court for possession must prove his/her legal entitlement to -13- recover possession and the possession cannot be granted to a stranger or trespasser. He submitted, a licensee does not have juridical possession and on termination of his licence he becomes a trespasser and, therefore, he is not entitled to relief under section 6. 7.1 Mr Chhagla submitted, the plaintiff, who claims to be the wife of defendant no.1, has no independent or personal right to the suit premises and can claim none. There was no privity of contract between the plaintiff and defendant no.2. He then submitted, assuming that the plaintiff is defendant no.1’s wife, a wife of an employee, during her husband’s life time, is permitted a right of occupancy in the property of the company only by virtue of being a family member of the employee. Once the right of an employee to remain in possession of the property gets extinguished either on account of termination of services or otherwise, a wife or other family members in occupation cannot claim any independent right and any such occupation after extinguishment of the right of an employee would in law be unlawful. 7.2 Mr.Chhagla submitted that act of surrender of the suit premises by defendant no.1, even if it is against a wish of the plaintiff, cannot be called -14- illegal and in any case defendant no.2 cannot be stated to have had forcibly dispossessed her. He submitted that no injunction, as prayed in the instant motion can be granted against defendant no.2 who is rightful owner and in favour of a person who cannot have any legal right to claim such possession of the suit premises. 7.3 Mr Chhagla further submitted that the plaintiff is not someone who has no roof over her head, as is sought to be portrayed by her and that she in fact resides in a mansion of about 5000 sq.ft in Singapur and drawing an income of over rupees two crores per annum, and only stays in the suit premises when she visits Bombay occasionally. He, therefore, submitted that the balance of convenience is solely in favour of defendant no.2 who need this premises for its employees. 7.4 Lastly, he submitted that the plaintiff has suppressed material facts and has not approached this Court with clean hands and, therefore, disentitled herself to grant any equitable relief. He submitted that the protection of Women and Domestic Violence Act, 2005 has and can have no application to a third party company. He placed reliance upon the following judgments:(i) Maganlal Radia V State of Maharashtra - Maganlal Radia V State of Maharashtra - Maganlal Radia V State of Maharashtra - -15- The Bombay Law Reporter, Vol.LXXII page 784; (ii) AIR The Bombay Law Reporter, Vol.LXXII page 784; (ii) AIR The Bombay Law Reporter, Vol.LXXII page 784; (ii) AIR 1959 Supreme Court 1262; (iii) Corporation of Calicut 1959 Supreme Court 1262; (iii) Corporation of Calicut 1959 Supreme Court 1262; (iii) Corporation of Calicut Vs K.Shreenivasan-(2002) 5 Supreme Court Cases 361; Vs K.Shreenivasan-(2002) 5 Supreme Court Cases 361; Vs K.Shreenivasan-(2002) 5 Supreme Court Cases 361; (iv) S.R.Batra and anr Vs Taruna Batra - (2007) 3 (iv) S.R.Batra and anr Vs Taruna Batra - (2007) 3 (iv) S.R.Batra and anr Vs Taruna Batra - (2007) 3 Supreme Court Cases 169; (v) Sunita Bhagat and ors Vs. Supreme Court Cases 169; (v) Sunita Bhagat and ors Vs. Supreme Court Cases 169; (v) Sunita Bhagat and ors Vs. Voltas Ltd and ors - Company Cases Vol.84 page 28; and Voltas Ltd and ors - Company Cases Vol.84 page 28; and Voltas Ltd and ors - Company Cases Vol.84 page 28; and (vi) Sopan Sukhadeo Sable and ors Vs. Assistant (vi) Sopan Sukhadeo Sable and ors Vs. Assistant (vi) Sopan Sukhadeo Sable and ors Vs. Assistant Charity Commissioner and ors - (2004) 3 SCC 137. Charity Commissioner and ors - (2004) 3 SCC 137. Charity Commissioner and ors - (2004) 3 SCC 137. 8. Section 6 of the Specific Relief Act,1963 provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. The object of section 6 is to provide a speedy remedy for that class of cases, wherein a person in physical possession of property is forcibly dispossessed from it against, his will and consent. The main question for determination, therefore, in a case under the section is whether, the plaintiff while in physical possession of the property has been dispossessed of the same in the manner and within the time specified in the section. The object is to check the tendency to recover possession of property by taking law in hand. -16- 8.1 There is no prohibition under section 6 to grant interim relief, directing to restore the possession which existed immediately before filing of the suit. However, such power, in my opinion, is to be exercised by the Court with great care and caution and only when the plaintiff shows more than just prima facie case that he/she was in lawful possession of the subject premises just before he/she was evicted unlawfully. In short, where there is sufficient material on record to show that the plaintiff was in lawful possession and he/she has been dispossessed otherwise than in due course of law, the court can grant interim relief. The Supreme Court in Sanjay Kumar Pande Vs. Gulbahor Sanjay Kumar Pande Vs. Gulbahor Sanjay Kumar Pande Vs. Gulbahor Shaikh, 2004 (4) SCC 644 Shaikh, 2004 (4) SCC 644 Shaikh, 2004 (4) SCC 644 relied upon by Mr Thorat,learned senior counsel for the plaintiff emphasised that the nature of the enquiry under section 6 is confined to the question of unlawful dispossession within a period of six months from institution of the suit ignoring the question of title. Keeping this position of law in view, I would now like to advert to the submissions advanced by the learned counsel for the parties against the backdrop of the facts detailed in the earlier paragraphs. 9. The suit premises were purchased by Piem as -17- director’s accommodation. It appears, that until October, 2005 the plaintiff and defendant no.1 were in possession of the suit premises by virtue of the first defendant’s status as a director of Piem and thereafter he continued to be in possession thereof as an employee of defendant no.2 by virtue of the service occupancy agreement. It is against this backdrop, the contention urged on behalf of the plaintiff that she was not aware about the Leave and Licence Agreement dated 11.10.2005 and Service Occupancy Agreement dated 22.12.2005 will have to be examined at the first instance. 9.1 Looking at the sequence of events between January, 2008 and March, 2008, that is, till the plaintiff was allegedly dispossessed, it would be difficult to hold that the plaintiff was totally unaware about the leave and licence and service occupancy agreements. It appears that in January, 2008, an oral complaint of water leakage was made by the society of the suit premises to the plaintiff. Similarly, the complaint was also made to defendant no.1. Defendant no.1, on 4.1.2008, informed defendant no.2 that he had received complaints of water leakage in the suit premises but he could not enter the suit premises as the locks had been changed. On 7.1.2008, Col.Yadav, the representative of defendant no.2, -18- visited the suit premises and found that the front door locks were changed. Admittedly, Col.Yadav is an employee of defendant no.2. The society, vide letter dated 8.2.2008, informed Piem about the leakage asking them to attend it. The plaintiff was also informed orally by the society about the leakage and she allowed the society’s plumber to do some repairs between 9.2.2008 and 16.2.2008. Thereafter, on 26.2.2008, the plaintiff returned to Mumbai and saw a note from Col.Yadav, requesting her to contact him. Admittedly, the plaintiff