1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.270 OF 2009 IN NOTICE OF MOTION NO.15 OF 2009 IN SUIT NO.5866 OF 1999 WITH NOTICE OF MOTION NO.2360 OF 2009 IN APPEAL NO.270 OF 2009 IN NOTICE OF MOTION NO.15 OF 2009 IN SUIT NO.5866 OF 1999 1. Ghanshyam Jamnomal Shewakramani, Age 62 years, Occu – Business. 2. Mrs.Meena Ghanshyam Shewakramani, Aged 58 years, Occu – Business, Both Bombay, Indian Inhabitant, having their address at 11A, Settminar Apartment, Peddar Road, Bombay – 400 026. .... Appellants V/s. 1. Lachmandas Tulsiram Nayar (HUF), by and through its Karta and Manager Shri Ram Gopal Lachhmandas Nayar, 17, St.James Court, Marine Drive, Mumbai – 400 020, owner of building known as “Shiv Sadan”, C Road, Netaji Subhaschandra Road, Marine Drive, Mumbai – 400 020. 2. Smt.Kiran Surjiv Bedi, w/o Late Shri Surjiv Kumar Bedi 2 3. Ms.Sheron Surjiv Bedi, daughter of Late Shri Surjiv Kumar Bedi, 4. Mr.Sunny Surjiv Bedi, son of Late Shri Surjiv Kumar Bedi, All Indian Inhabitants, residing at Flat No.3, 1st Floor, of the Building known as “Shiv Sadan”, C Road, Netaji Subhaschandra Road, Marine Drive, Mumbai – 400 020. ..... Respondents Mr.A.Y.Sakhare, Sr.Advocate, with Mr.Ranjit Thorat i/by Devendra Udani, for the appellants. Mr.F.E.D’vitre, Sr.Advocate, with Ms.Manju Sharma i/by Mr.Amol V. Doijode, for respondent No.1. Mr.J.B.Mitra with Mr.Munir Merchant, for respondent Nos.2 to 4. Mr.S.A.Vichare, representative of the Court Receiver – present. CORAM :P.B.MAJMUDAR & R.C.CHAVAN, JJ. DATE : NOVEMBER 17, 2009 ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J. ) 1. This is a thoroughly misconceived appeal filed by the appellants who have been subsequently added as defendant Nos.4 and 5 in Suit No.5866 of 1999. The respondent No.1 is the owner of a building known as “Shiv Sadan”, situated at ‘C’ Road, Netaji Subhaschandra Road, Marine Drive, Mumbai – 400 020. The aforesaid respondent No.1/original plaintiff has filed the said suit bearing No.5866 of 1999 originally against Tilak Raj Bedi and his son Surjiv as original defendant Nos.1 & 2 on the 3 ground that the said defendants were the trespassers, having no right to retain the possession of the suit premises. While Tilak Raj died on 10-09-2007 and Surjiv died on 16-07-2006, Mahendra, Mausaben and Tapan Zaveri were initially arrayed as defendant No.3 to 5, as the plaintiffs apprehended that they may be inducted in the suit premises by defendant Nos.1 and 2. They had been subsequently deleted from array of defendants. It is the case of the plaintiff that one Lachhmandas, father of Ramgopal and Ors., left behind his widow namely Pushpavati through his second marriage. The said Pushpavati had her permanent residence at 2/3 Model Town, Delhi, where she was normally residing. But she used to pay visits to Mumbai also and the plaintiff actually allowed her to stay at Mumbai whenever she visits Mumbai as a matter of courtesy without charging any rent or licence fee or compensation in the suit flat. It is the case of the plaintiff that the said Pushpavati had no other right except that she was allowed to stay as and when she visits Mumbai. It is not in dispute that there was no issue from the wedlock of Lachhmandas with Pushpavati. The said Pushpavati died on 14-10-1987. According to the plaintiff, in view of the death of Pushpavati, the right given to her to stay during her visits at Mumbai, came to an end. It is the case of the plaintiff that Pushpavati was not co-parcenor of the said HUF and she was only having limited right to say during her visits at Mumbai. 4 2. It is the case of the plaintiff that after the death of Pushpavati, the original defendant No.1 Tilak Raj, started visiting the said premises at Mumbai, though his permanent address is Model Town, Delhi. It is the case of the plaintiff that defendant No.1 had no right to occupy the premises in any manner. It is the case of the plaintiff that the defendant No.1 was a nephew of Pushpavati, being her sister’s son. It is the case of the plaintiff that in the year 1992, the original defendant No.1 inducted original defendant No.2 without the consent of the plaintiff. It is the case of the plaintiff that original defendant No.2 is merely a trespasser in the suit premises and neither defendant Nos1. & 2 have any right, title and interest in the suit premises. 3. It seems that the plaintiff apprehended that the defendant Nos.1 & 2 wanted to transfer the property to original defendant Nos.3, 4 & 5 ( i.e. Zaveri’s) without consent of the plaintiff. On these and such other averments, plaintiff therefore, filed a suit with a prayer that decree for possession may be passed against the defendants, treating them as trespassers. Plaintiff also preferred a Notice of Motion for interim injunction and the learned Single Judge by his order dated 11-12-2000, granted injunction by passing following order : - “1. In the suit of the plaintiffs the reliefs prayed for amongst other is for eviction of the defendants from the suit premises on the ground that the 5 defendants have no right, title and interest in the suit property. Plaintiffs have also taken out motion contending that they apprehend on account of the incidents that have taken place the defendants may induct third parties into the suit premises. 2. On behalf of the defendants the defendant No.2 has filed an affidavit. It is contended that they are in lawful possession and entitled to continue to remain so. The incident which purportedly occurred on 3rd December and 5th December, 2000 have been denied. It is therefore, submitted that the relief as prayed for should be rejected. 3. Prima facie, the plaintiffs on the avermens in the plaint have been able to show that they have an interest in the property. No doubt there is a dispute as to whether the defendants in fact are seeking to create third party rights. Once the plaintiffs have come to the court apprehending that the defendants may create third party rights, the status quo as prevailing on the date of the suit will have to be maintained. Considering that the plaintiffs are entitled to protect the property. Hence, motion made absolute in terms of prayer clause (b). There shall be no order as to costs. Both parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court. P.A. to give ordinary copy of this order to the parties. 4. During the pendency of the suit, since the original defendant Nos.1 and 2 died, the plaintiff took out a Chamber Summons No.801 of 2008 for bringing heirs of original defendant Nos.1 and 2 on record. The learned Single Judge permitted respondent Nos.1 to 3 as heirs of defendant Nos.1 and 2 to be brought on record and added as 6 defendant Nos.1 to 3. Cause title of the plaint was ordered to be amended accordingly. 5. It is the case of the plaintiff that the original defendant No. 2 Surjiv, tried to induct some other persons in breach of the injunction order granted by this Court. This fact came to their knowledge only after the defendant No.2 died. The learned Single Judge while disposing of the Chamber Summons on 11-12-2008, permitted the plaintiff to take out notice of motion for further reliefs if so required. The appellants who have been subsequently arrayed as defendant Nos.4 and 5 claimed that original defendant No.2, Surjiv Bedi, claiming to be tenant of the premises transferred his tenancy rights to them by a document dated 27-04-2006 for a sum of Rs.1.75 crores. 6. Subsequently, plaintiff took out Notice of Motion No.15 of 2009 on the ground that in spite of the order of injunction, the original defendant No.2 has transfered the suit property in favour of defendant Nos.4 & 5. It is the case of the plaintiff that the suit is filed against the original defendants on the basis of trespass and even though, a specific injunction order is passed by this Court on 11-12-2000, restraining the defendants from parting with the possession of the suit premises, the original defendant No.2 Surjiv, has created third party rights and inducted defendant Nos.4 and 5 in the portion of the suit premises 7 admeasuring 1500 sq.ft., in violation of the injunction order granted by this Court. The present defendant Nos.1 to 3 continue to occupy remaining portion of the suit premises of about 1000 sq.ft. There is also an order of injunction restraining defendant Nos.1 to 3 from creating any third party interest in connection with the suit property. 7. The plaintiff while taking out Notice of Motion No.15 of 2009 also prayed that Court Receiver may be appointed in respect of entire suit flat. It is the case of the plaintiff that since original defendant Nos.1 and 2 were trespassers, on that basis, the heirs of defendants who have been brought on record subsequently as defendant Nos.1 to 3, should also be treated as trespassers and decree should be passed against them. Interim injunction was pressed into service which is granted by the learned Single Judge of this Court. 8. At the time of deciding the notice of motion, no reply was filed by the defendant Nos.1 to 3. However, defendant Nos.4 and 5 who have been inducted subsequently, in breach of the injunction, filed their reply resisting the said prayer on the ground that no case is made out for appointment of the Court Receiver. It is the case of the defendant Nos.4 and 5 that original defendant Nos.1 and 2 were occupying the premises as licencees and therefore, the suit is not maintainable on the Original Side of this Court in view of Section 41 of The Presidency Small Cause Courts Act, 8 1882, as the suit is required to be filed with the Small Causes Court, at Mumbai and therefore, the order of injunction granted by this Court is without jurisdiction. 9. The learned Single Judge found that the defendant Nos.4 and 5 have been inducted in the suit premises in breach of the order of injunction of this Court and accordingly, they have no right to use the suit flat at all. The learned Single Judge further directed that the Court Receiver shall take possession of the suit premises occupied by the aforesaid defendant Nos.4 and 5. The remaining portion was allowed to continue with the defendant Nos.1 to 3, though the Court Receiver was appointed even for this portion. The learned Single Judge also directed that defendant Nos.1 to 3 shall not create any further rights or induct any person in the suit premises. It is the aforesaid order of the learned Single Judge which is challenged by way of this appeal by the original defendant Nos.4 and 5, who have been inducted in the suit premises. 10. We have heard the learned counsel for the appellants and the respondent No.1 at considerable length, learned counsel for other respondents had nothing to add. We have gone through the record and proceedings of this case. 11. Mr.Sakhare, the learned counsel for the appellants/original defendant Nos.4 and 5, vehemently submitted that looking to the plaint, it 9 is clear that the original defendant Nos.1 and 2 were occupying the premises as licencees and therefore, in view of the provisions of Section 41 of the Presidency Small Cause Courts Act, 1882, it is the Small Causes Court, which has jurisdiction to try the proceedings against the licencees and the suit filed on the Original Side of this Court is not maintainable. It is submitted on behalf of the appellants that as per mandate of Section 9(A) of the Code of Civil Procedure, which is applicable to State of Maharashtra, before deciding the notice of motion in question, the learned Single Judge should have decided the issue about the jurisdiction as a preliminary issue and therefore, the learned Single Judge gravely erred in deciding the notice of motion without deciding the preliminary issue about the jurisdiction. It is submitted by Mr.Sakhare that defendant Nos.1 to 3 being the licencees, no decree for eviction could be passed in a regular suit, as these proceedings are required to be decided under Section 41 of the Act. The learned counsel for the appellants further submitted that while deciding the question of jurisdiction, the Court is also required to consider the averments made in the written statement and averments made in the plaint alone, cannot be decisive of the matter. It is contended by the learned counsel for the appellants that defendant Nos.4 and 5 were not aware about the injunction order passed by this Court when they entered into the transaction with defendant Nos.1 to 3 and in view of the 10 same, defendant Nos.4 and 5 may be allowed to reside in the suit premises as an agent of the Court receiver, as they invested large amount. It is further submitted that if they are evicted from the suit premises, they will be put to great hardship. It is submitted by the learned counsel for the appellants that though it is true that original defendant Nos.1 and 2 ( or even their heirs present defendant Nos.1 to 3) have not filed any written statement, but since the present appellants i.e. original defendant Nos.4 and 5 are occupying the premises, they have right to raise all the points including the point of jurisdiction. Since the mandatory provisions of Section 9(A) have not been followed by the learned Single Judge before disposing of the notice of motion, the order below notice of motion may be set aside and the matter may be remanded to the learned Single Judge with a direction to decide the question of jurisdiction and then decide the notice of motion. In order to substantiate his case, the learned counsel for the appellants has relied upon certain judgments, to which reference will be made later on. 12. Mr.D’vitre, the learned Counsel for respondent No.1, on the other hand, submitted that as per averments in the plaint, the original defendant No.1 Tilak Raj Bedi had absolutely no right title and interest in the suit property and the suit is filed as simplicitor suit treating him as trespasser. He further submitted that Pushpavati was allowed to occupy 11 the premises at Mumbai, even though she was residing at Delhi and because of sympathy towards her, she was permitted to reside at the suit premises during her visits to Mumbai. The learned counsel for the respondent No.1 further submitted that after the death of Pushpavati, original defendant Nos.1 and 2 were using the suit premises, for which they had no right and in view of the same, suit is filed against them as trespassers to vacate the premises as they were occupying the premises intermittently, without there being any legal right. It is submitted by the learned counsel for the respondent that even from Pushpavati, no amount was charged in any manner and she was allowed to occupy the premises only by way of grace. It is submitted by Mr.Devitre that Pushpavati was never a member of HUF and even otherwise, so far as original defendant Nos.1 and 2 i.e. Tilak Raj Bedi and Surjiv Tilaj Raj Bedi, they had absolutely no right, title and interest in any manner in the suit premises and they were distant relatives of Pushpavati, as according to him, original defendant No.2 was a nephew of Pushpavati. 13. The learned counsel for the respondent further contended that after the death of original defendant No.1 and 2, their heirs have no title over the suit property, but since, they were inducted in the suit premises, they were joined as heirs of original defendant No.2, who expired on 16-07-2006. Present defendant No.1 is the widow of original 12 defendant No.2 Surjiv Bedi and present defendant Nos.2 & 3 are brought on record now as the daughter and son of original defendant No.2 and that is how they are brought on record. 14. It is submitted on behalf of the learned counsel for the respondent that in view of the injunction granted by this Court, it was not open for original defendant No.2 to part with the possession of the suit property in any manner in favour of present defendant Nos.4 and 5. It is submitted by him that even in the past, the plaintiff was apprehending that the original defendant Nos.1 and 2 may part with the possession and that is why defendant Nos.3 to 5 (Zaveri’s) were joined in the suit. But, subsequently, it was found that they have no concern with the suit premises, they were deleted from the proceedings. Mr.Devitre further submitted that provisions of Section 9(A) are not at all applicable in the present proceedings. According to him, the original defendant Nos.1 and 2 have not filed any written statement contesting the suit. The defendant Nos.4 and 5, who have entered into the transaction in spite of the injunction order, cannot claim any better title in the property than original defendant No.2 Surjiv, through whom they have derived their rights on the basis of an agreement. It is contended by the learned counsel for the respondent that in a given case, the Court could decide the question of interim relief, even though the point of jurisdiction is raised and thereafter, 13 may proceed to decide the question of jurisdiction at the earliest, and not to wait for deciding the issue along with the suit. 15. It is submitted on behalf of the respondent that defendant Nos.4 and 5 having entered into the premises in breach of injunction, they cannot be permitted to say that the defendant Nos.1 and 2 were the licencees and not trespassers. It is submitted that even if for the sake of argument, the order of injunction could be said to be without jurisdiction, then also, proceedings for breach of injunction are maintainable and it is not open for any party to flout the order. Considering the aforesaid aspect, no sympathy should be shown in favour of the appellants who have come in the possession by way of violation of injunction order. It is vehemently submitted on behalf of the respondent that defendant Nos.4 and 5 are having another house and at present they are staying at Sett Minar Apartment, Peddar Road, Mumbai, which is clear from the affidavit at Page 36. It is submitted by him that the defendant Nos.4 and 5 are holding up the premises only with a view to defeat the claim of the original plaintiff. It is submitted by the learned counsel for the respondent that the learned Single Judge is perfectly justified in passing the impugned order. He further submitted that the defendant Nos.4 and 5 cannot be allowed to occupy the suit flat even as an agent of the Court Receiver, as they have entered into the premises in breach of the injunction order and 14 they are not required to be protected in any manner. It is further submitted that such transaction, which is in violation, should be treated as null and void, as if the same is not in existence at all, and the position prevailing prior to entering into such transaction may be maintained. The learned counsel for the respondent submitted that if the appellants are allowed to occupy the suit premises, it will be giving a premium to a person who has taken advantage of the situation by flouting the orders of the Court. It is lastly submitted that the points raised in the appeal were never pressed into service before the learned Single Judge and in fact, no submissions were made in the manner they are now made before the learned Single Judge and therefore, those points should not be allowed to be agitated in this appeal. Considering the aforesaid arguments, it is submitted by the learned counsel for the respondent that the appeal may be dismissed with costs. 16. It is required to be noted that earlier the Division Bench of this Court by an order dated 05-08-2009, directed the appellants to deposit Rs.50,000/- per month with effect from 27th April, 2006. The Division Bench further directed that the appeal may be decided finally at the admission stage itself. The learned counsel for the appellants states that in view order dated 05-08-2009, the appellants have deposited Rs. 50,000/- with effect from 27th April, 2006 and that amount has been 15 deposited every month till date. 17. The principal question which requires consideration by this Court is as to whether the order passed by the learned Single Judge is unsustainable on the ground that the defendant Nos.4 and 5 have raised the point of jurisdiction to the effect that the suit is not maintainable before this Court and the same is barred under Section 41 of the Presidency Small Cause Courts Act. It is true that this point has not been raised before the learned Single Judge. But, since it is a jurisdictional point, we have examined the said question in the present appeal. At this stage, reference is required to be made to the provisions of Section 9(a) of the Code of Civil Procedure, which reads as under : - 9(A) : Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue. (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub- 16 section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary pending determination by it of the preliminary issue as to the jurisdiction. 18. The provisions of Section 9(A) of CPC, as also the enforceability of injunction orders issued by a Court which was subsequently found to be without jurisdiction, has been considered by the Supreme Court in the case of Tayabbhai M. Bagasarwalla and Anr., V/s. Hind Rubber Industries Pvt. Ltd., etc., AIR 1997 SC 1240. While considering the scheme of Section 9(A), the Supreme Court has observed in Para No.14, 16 and 21, thus : 14.The first and foremost question in this appeal is whether the High Court was right in holding that since it has been found ultimately that the Civil Court had no jurisdiction to entertain the suit, the interim orders made therein are non est and hence defendants 1 and 2 cannot be punished for their violation even if they had flouted and disobeyed the said interim orders when they were in force. We are of the considered opinion that the High Court was not right in saying so. The landlord-plaintiff came forward with the suit alleging that by virtue of the fire resulting in the destruction of the suit house, the relationship of landlord and tenant between the parties has come to an end and, therefore, he requested the Court to injunct the defendants from carrying on any construction on the suit premises without their permission and without obtaining the sanction from Municipal Corporation. The defendants questioned the jurisdiction of the Civil Court to entertain the 17 suit. According to them, the building