Allowed

S.C. Pakrashi and 3 Ors. v. Balkrishna S. Salehittal and Anr.

Bombay HC4 Dec 2006APP/858/2006

Case brief

AI extract

What is this about?

In an appeal from an ad-interim order granting possession of a terrace, this Court set aside the order based on a letter suggesting dispossession occurred in December 2005, raising reasonable doubt about the suit's compliance with the six-month limitation period of Section 6 of the Specific Relief Act.

What did the court decide?

Set aside the ad-interim order in terms of prayer clauses (a) and (c) of the Notice of Motion; direct return of keys; restrain society from using the terrace.

S.C. Pakrashi and 3 Ors. Vs Balkrishna S. Salehittal and… — Property and Title | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 858 OF 2006

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IN

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NOTICE OF MOTION NO. 3881 OF 2006
IN

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SUIT NO. 3093 OF 2006

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Versus

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1. Balkrishna S. Salehittal & Anr.] .. Respondents
(Ori.Pltff. & Def
No.4)

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Mr. P.K. Samdani, senior counsel i/b Mr. Vishal
Khanavkar & Mr. Kedar Dighe for the appellants.

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Mr. D.D. Madon, senior counsel with Mr. Jay Choksi
i/b M/s. S.C. Naidu & Co. for the respondent No.1.

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Ms. Soma Singh i/b Mr. A.K. Rao for respondent No.2.

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CORAM: R.M. LODHA, &
S.A. BOBDE, JJ.

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DATED: 04TH DECEMBER, 2006

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P.C. :

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.We heard the senior counsel for the parties.
The Appeal being from the ad-interim order, we dispose
of the same at this stage.

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2.By the impugned order, the learned Motion
Judge, pending Notice of Motion, granted the following

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: 2 :

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ad-interim order in favour of the plaintiff:

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"(a)That the defendant nos.1,2, 3 and 5 be
directed to remove the lock placed by them on
the grill door in front of the emergency exit
of the suit terrace and hand over peaceful
and vacant possession of the suit terrace to
the plaintiff for his exclusive use and
enjoyment on terms as Hon’ble Court may deem
fit and proper.

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(b)........

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(c)That pending the hearing and final
disposal of this Suit, the Defendant No.1,2,3
and 5 their agents, survivors and/or any
person claiming for and on behalf of them or
any of the residents (except the plaintiff)
of the building with whom Defendants 1, 2, 3
forming an alliance be restrained by an order
of injunction from entering into, using, or
in any manner dealing with the Suit terrace
and in particular from letting out or hiring
or permitting use of the said terrace for any
function, party, gathering and/or assembling
on the Suit terrace;"

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3.The question that needs to be decided by us is
whether the ad-interim order granted by the learned
Motion Judge deserves interference in the Appeal.

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4.The respondent No.1 (original plaintiff) in
the Suit filed under Section 6 of the Specific Relief
Act against the present appellants (defendants No.1, 2,
3 and 5) set up the case that they purchased the flat
vide registered agreement dated 1st April, 2004, being
flat No.2402 on the 24th floor of the building known as
Lokhandwala Residency Towers, "A" Wing, along with the

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: 3 :

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terrace admeasuring 710 square feet for a consideration
of Rs.40,00,000/- from the defendant No.4. The
plaintiff was put in possession of the flat, terrace
etc. on that very date. However, he was illegally
dispossessed from the terrace on 2nd March, 2006, by
defendants No.1, 2 and 3 without following due process
of law, inter alia, necessitating the Suit under Section
6 of the Specific Relief Act.

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5.A Notice of Motion was taken out by the
plaintiff for interim relief, amongst others, in the
nature of prayer clauses (a) and (c) aforenoticed.

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6.In opposition to the Notice of Motion, the
defendant No.5 filed reply Affidavit and set up the case
that the terrace belongs to the entire body of flat
purchasers and that at the instance of the flat
purchasers (the residents of the society), SRA handed
over possession of the terrace to the Society.

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7.Since the Appeal arises from ad-interim order,
we do not intend to go into the diverse aspects of the
case at length, however, at this stage we find that from
the letter dated 29th December, 2005, sent by defendant
No.4 to the Senior Inspector of Police, Worli Police
Station, Mumbai, it is seen that the terrace door lock

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: 4 :

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was broken open before that date and a notice was pasted
that the property (terrace) belongs to flat owners and
trespassers will be prosecuted. The Senior Inspector of
Police was requested to register the crime of house
breaking against the defendants No.2 and 3 (appellants
No.2 and 3) suspected to have committed the crime. The
said letter casts serious doubt about the correctness of
the case set up by the plaintiff that he was
dispossessed on 2nd March, 2006. Prima facie, it
appears that the dispossession took place in the month
of December, 2005. If that be so, the present Suit
filed by the plaintiff on 2nd September, 2006, under
Section 6 of the Specific Relief Act, prima facie,
appears to be not legally sustainable as such Suit is
required to be filed before the expiry of six months
from the date of dispossession. In this view of the
matter, the impugned order in terms of prayer clauses
(a) and (c) of the Notice of Motion does not appear to
be justified and is set aside accordingly.

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8.We are informed by the senior counsel for the
plaintiff that keys of the lock put up on the terrace
door have been handed over by the appellants’ Advocate
to the Advocate for plaintiff. We direct the
plaintiff’s Advocate to return the keys to the Advocate
for the appellants for handing it over to the Secretary

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: 5 :

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of defendant No.5-Society. We further direct that until
the disposal of the Notice of Motion, the defendant No.5
nor its Members shall use the subject terrace nor the
said terrace shall be given to any third party on
licence or otherwise.

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9. Hearing of the Notice of Motion is expedited.

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.Appeal stands disposed of.

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Sd/-
[S.A. BOBDE, J.]

S.C. Pakrashi and 3 Ors. v. Balkrishna S. Salehittal and Anr.

Case brief

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What did the court decide?

S.C. Pakrashi and 3 Ors. v. Balkrishna S. Salehittal and Anr.

Case brief

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What did the court decide?

What the court decided

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