Quashed

Nakhuda Mohammed Ali Rogay s/o. Nakhuda Mohammed Ameen Rogay v. Anzar Ahmed and Ors.

Bombay HC22 Apr 2013WP/3370/2013

Case brief

AI extract

What is this about?

Respondent challenging High Court order allowing impleadment in an eviction suit. Bench held impleadment inappropriate in suit against trespassers where tenant's possession status undecided, quashing the order while preserving tenant's remedy.

What did the court decide?

Impugned order dated 15-3-2013 allowing impleadment application is quashed and set aside.

Nakhuda Mohammed Ali Rogay s/o. Nakhuda… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3370 of 2013

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Nakhuda Mohd. Ali Rogay ) S/o Nakhuda Mohammed Ameen Rogay ) aged about 47 years, Muslim Indian ) Inhabitant of Mumbai, trustee of Fatmabai ) Binte Nakhuda Mohammed Ameen Rogay ) Religious & Charitable Turst, having office ) at 92-94, Kazi Street, Mumbai 400 003 )..Petitioner

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versus

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1 Anzar Ahmed )
Age and occupation not known )
2 Anwar Ahmed )
Age and occupation not known ) of M/s. Ahemd Brothers illegally ) occupying Shop No.9, Nakhuda Building ) Ground Floor, 21-39, Maulalana Azad Road) Mumbai 400 008 )
3 M/s. Kitabi Traders )
A partnership firm duly registered under ) Indian Partnership Act, 1956 through ) its partners Mr. Abbasbhai Mohammed Ali )
Shop No.9, Nakhuda Building, Azad Road, ) Mumbai 400 009 )..Respondents
Mr. G. S. Godbole with Mr. G.R.Mishra and Mr. A. M. Shinde for the Petitioners
Mr. A. N. Nasikwala i/b Ms Z. A. Lakdawala for the Respondent Nos.1 and 2 Mr. Kunal Bhange for the Respondent No.3

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CORAM:- R M SAVANT, J DATED :- 22^nd APRIL, 2013.

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ORAL JUDGMENT

1 Rule. With the consent of the parties made returnable forthwith and heard.

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2 The Writ Jurisdiction of this Court is invoked against the order dated 15-4-2013 passed by the Trial Court i.e. the Learned Judge of the City Civil

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Court Greater Mumbai by which order, the application filed by the Respondent No.3 herein for his impleadment in the Suit in question came to be allowed.

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3 The parties would be referred to as per their status in the Trial Court. The Petitioner herein is the original Plaintiff. The Respondent Nos.1 and 2 herein are the original Defendant Nos.1 and 2 and the Respondent

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No.3 is the Applicant who had filed the application in question being Chamber Summons No.1079 of 2012 for his impleadment. The Suit in question being S.C. Suit No.1830 of 2010 has been filed by the Plaintiff interalia for a declaration that the Defendant Nos.1 and 2 are rank tresspassers in respect of the suit premises being Shop No.9, Ground floor of Building No.21/39, Nakhuda Building, Maulana Azad Road, Mumbai 400 008 bearing C. S. No.266, “E” Ward Byculla Division, for the further relief that the Defendant Nos.1 and 2 be directed to forthwith quit, vacate and hand over peaceful and vacant possession of the suit premises. The

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relief is also sought as regards the payment of compensation for the said illegal and unauthorised use of the suit premises. The Plaintiff by prayer clause (c) has sought relief that the Court Receiver High Court Bombay be appointed as a receiver in respect of the suit premises .

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4 It is the case of the Plaintiff that the Suit building is occupied by various tenants and in so far as the suit premises being Shop No.9 one M/s. Kitabi Traders was the monthly tenant in respect thereof the suit premises are on the ground floor of the said building and have a carpet area of 200 sq.ft. and the contractual rent in respect of the same is Rs. 158 per month exclusive of permitted increases and property taxes. It is the case of the Plaintiff that the Defendant Nos.1 and 2 are illegally occupying the suit premises without any authority and that the said original tenant M/s. Kitabi Traders has left the suit premises. The Plaintiff therefore addressed a Advocates notice dated 5-11-2009 to the Defendant Nos.1 and 2 M/s. Ahmed Brothers calling upon them to quit, vacate and handover vacant possession. The said notice sent to the Defendants was also sent by the postal certificate which was received by the Defendants. However, inspite of the receipt of the said notice, the Defendant Nos.1 and 2 neither

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replied to the said notice nor did they comply with the requisitions contained therein. It is the case of the Plaintiff that a copy of the said

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notice was forwarded to the Senior Inspector of police, Nagpada Police Station for necessary action.

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5 It is the case of the Plaintiff in the said Suit that the Defendant Nos.1 and 2 have no right and authority to remain in possession of the suit premises and that they are rank trespassers as there is no privity of contract between the Plaintiff and the Defendant Nos.1 and 2.

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6 The suit summons came to be served on the Defendant Nos.1 and 2

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who appeared in the Suit and filed their Written Statement which is dated 27-8-2012. It is their case that they are not concerned with the Suit premises. In the said Suit, the Plaintiff had filed a Notice of Motion being No.2034 of 2012 for appointment of the Court Receiver. It is at the hearing of the said Notice of Motion that the Defendant Nos.1 and 2 raised a preliminary issue as regards the jurisdiction of the Court on the ground that the City Civil Court, Bombay would have no jurisdiction and it is the Small Causes Court, Bombay, in view of the fact that the premises are tenanted premises that would have jurisdiction. The Trial Court accordingly framed a preliminary issue and by its order dated 24-12-2011 decided the same and held that it had jurisdiction to try and entertain the

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Suit as the issue before it was not of any sub-tenancy but the issue was as regards the eviction of the Defendants, which was sought on the ground

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that they were trespassers. The Defendant Nos.1 and 2 aggrieved by the said order dated 24-12-2011 passed by the Learned Judge of the City Civil Court, Bombay invoked Writ Jurisdiction of this Court by filing a Writ Petition No.2353 of 2012. The said Writ petition was amongst a group of three petitions which were filed by the other Defendants against whom also the Suits were filed by the Plaintiff for declaration and eviction. This court by Judgment and order dated 29-6-2012 dismissed the said Writ Petition No.2353 of 2012 as also the companion matters and thereby upheld that order passed by the Trial Court holding that it had jurisdiction to try the Suits in question. It seems that the said order dated 29-6-2012 was not carried higher by the Defendant Nos.1 and 2 and has therefore became final and binding. After the decision on the said preliminary issue was rendered the Trial Court took for consideration the said Notice of Motion No.2034 of 2012 for appointment of the Court Receiver. The Trial Court by order dated 21-7-2012 allowed the said Notice of Motion and appointed the Court Receiver, High Court Bombay as the Receiver for the suit premises. Since the Defendant Nos.1 and 2 were in occupation of the suit premises, the Court Receiver was directed to take symbolic possession of the suit premises. However, the symbolic possession could not be taken in view of the fact that the Respondent No.3 herein i.e. the Applicant had

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filed the Chamber Summons in question for his impleadment in the Suit in question.

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7 It is after the order dated 21-7-2012 whereby the said Notice of motion No.2034 of 2012 was allowed that the Respondent No.3 herein i.e. the Applicant filed the instant Chamber Summons No.1071 of 2012 seeking his impleadment in the suit. The said Chamber Summons was founded on the fact that the Applicant was admittedly a tenant of the premises in question and therefore was a necessary party. It was further the case of the Applicant that it became aware of the proceedings filed by the Plaintiff i.e. the Suit in question when the Defendant No.2 informed one of the partners of the Applicant that he has to be prepared for handing over possession as the learned Judge of City Civil Court Bombay has appointed a Receiver for the property in question. It is the case of the Applicant that the Suit in question seems to be a collusive Suit between the Plaintiff and the Defendant Nos.1 and 2.

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8 The said Chamber Summons No.1079 of 2012 was replied to on behalf of the Plaintiff. It was contended in the reply that the Chamber Summons is false, frivolous, baseless and also misconceived and in fact it is

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the Applicant and the Defendant Nos.1 and 2 who are in collusion with each other. It was averred in the said reply that the Applicant is not at all

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concerned with the suit premises and in fact is running his business from Shop No.5 ground floor, Kitabi Manzil, 13, Kamathipura, M.A.Road, Mumbai 400 008 and is not in possession of the suit premises. It is further averred in the reply that the trust in question had issued a notice dated 6-3-2006 and had terminated the tenancy and has also demanded the arrears of rent from the Applicant. It is averred that the said notice was sent by courier and the packet was returned back with the remark that the premises are locked. It is lastly averred that the application for impleadment is filed just to get over the order passed by this Court in Writ Petition No.2353 of 2012 and companion matters as also the order passed by the City Civil Court appointing the Court Receiver.

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9 The Trial Court i.e. the Learned Judge of City Civil Court, considered the said application being Chamber Summons No.1079 of 2012 and has by the impugned order allowed the same. The Trial Court by adverting to the fact that it was the case of the Plaintiff that the tenancy of the Applicant was terminated opined that if that be so the right course for the Plaintiff was to approach the Court of proper jurisdiction i.e. the Small Causes Court for eviction of the Applicant. The Trial Court observed that the Plaintiff has however adopted a novel method of seeking possession from the Defendant Nos.1 and 2. The Trial Court also adverted to the case of the

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Defendants that since from beginning the Defendants have maintained that they have no concern with the suit premises. The Trial Court on the ground that the invaluable right of the Applicant who is admittedly a tenant is at stake, the present suit could not be effectively and finally disposed of without him being before the Court. Significantly the Trial Court has also observed that there seems to be some collusion between the Applicant and the Defendant Nos.1 and 2 but later on observed that the said collusion and suspicion is not sufficient to take away the right of the Applicant for being impleaded in the Suit. The Trial Court as indicated above has therefore by the impugned order dated 15-2-2013 has allowed the application for impleadment.

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10 Heard the Learned Counsel for the parties.

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11 The Learned Counsel appearing on behalf of the Petitioner Mr. Godbole would contend that the application for impleadment filed after this Court had dismissed the Writ Petition No.2353 of 2012 and had decided the issue of jurisdiction and after the Trial Court had by its order dated 21-7-2012 appointed the Court Receiver, was to get over the said two orders. The Learned Counsel would contend that the Trial Court had

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erred in coming to the conclusion at the stage of considering the application for impleadment that the Defendant Nos.1 and 2 have no

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concern with the Suit property. The Learned Counsel would contend that the Trial Court failed to appreciate that the Suit notices have been accepted by the Defendants at the Suit address that they have participated in the proceedings raised a preliminary issue prosecuted the said preliminary issue and thereafter challenge the order rendered on the preliminary issue by filing a Writ Petition in this Court. The said fact according to the Learned Counsel unequivocally is a pointer to the fact that it is the Defendant Nos.1 and 2 who are concerned with the suit premises. The Learned Counsel would contend that the Trial Court erred in holding that the Plaintiff had to file a Suit in the Small Causes Court. This finding the Trial Court could not have rendered in the teeth of the order passed by this Court in Writ Petition No.2353 of 2012 to which a reference was made before the Trial Court. The Learned Counsel would contend that the Respondent No.3 if he has any grievance in respect of the termination of his tenancy by the Plaintiff or in respect of possession, he has to approach the appropriate Court, may be in his case the Small Causes Court, for seeking reliefs, but he could not file an application in the instant suit which has been filed by the Plaintiff for the eviction of the Defendant Nos.1 and 2 who are trespassers. The Learned Counsel would lastly contend that allowing the application by the impugned order would amount to

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nullifying the order passed by this Court in the said Writ Petition No.2353 of 2012 and companion matters as also the order dated 21-7-2012 passed by the Trial Court appointing the Court Receiver.

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12 Per contra, the Learned Counsel appearing for the Respondent No.3 i.e. the Applicant Mr. Bhange would contend that since the Applicant is admittedly a tenant, he is a necessary party to the Suit in question, which Suit relates to the premises in respect of which he is a tenant. The Learned Counsel would contend that in so far as the application under Order 1 Rule 10 is that the party must have some interest in the subject matter of the Suit. Since in the instant case, the Applicant is admittedly a tenant he has a right to seek his impleadment having regard to Order 1 Rule 10 of the Civil Procedure Code. The Learned Counsel would contend that the fact that the Applicant is in possession is also accepted by the Defendant Nos.1 and 2 who has so averred in the Written Statement and if that be so the Applicant is required to be joined as party Defendant in the Suit. The Learned Counsel in support of his contentions would seek to rely upon the Judgment of a Learned Single Judge of this Court reported in 2012(1) Bom. C.R. 836 in the matter of Sushil Kaur Sukhbirsingh Chhatwal & Ors. Vs. Aurangabad Ginning & Pressing Factory & Anr. which lays down

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that the interest in the Suit property is the sine qua non for seeking

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impleadment in the Suit where the property is the subject matter. It is the submission of the Learned Counsel that it is for the Plaintiff to file a Suit in the Small Causes Court to recover possession from the Applicant and the Suit filed in the City Civil Court Bombay as rightly observed by the Trial Court was a novel method to get possession from the tenant.

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13 Having heard the Learned counsel for the parties I have bestowed my anxious consideration to the rival contentions. As mentioned herein above, the Suit in question has been filed by the Plaintiff against the Defendant Nos.1 and 2 for a declaration that they are trespassers and for possession. The Suit is founded on the fact that it is the Defendant Nos.1 and 2 who are in possession. It is pertinent to note that the Defendant Nos.1 and 2 appeared in the Suit and at the consideration of the application for appointment of the Court Receiver raised a preliminary issue as regards the jurisdiction of the City Civil Court to try the Suit. The said preliminary issue was decided by the City Civil Court and answered against the Defendant Nos.1 and 2 by holding that it had jurisdiction to try the Suit as the Suit in question did not involve any issue under the Rent Act but was filed for declaration and for eviction of the Defendant Nos.1 and 2 who are trespassers. Against the order passed by the City Civil Court Bombay dated 24-12-2011 the Defendant Nos.1 and 2 had filed a Writ

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Petition in this Court along with the other Defendants who had filed the other two companion Writ Petitions. The Writ Petition filed by the Defendant Nos.1 and 2 was Writ Petition No.2353 of 2012 challenging the order dated 24-12-2011 passed by the City Civil Court. The said Writ Petition came to be dismissed by this Court by Judgment and Order dated 29-6-2012. This Court therefore upheld the order passed by the City Civil Court holding that it had jurisdiction to try the Suit. After the decision that was rendered on the preliminary issue and after its confirmation by this Court in the said Writ Petition No.2353 of 2012, the Notice of Motion being No.2034 of 2012 for appointment of the Court Receiver was taken up for hearing by the City Civil Court. The said Notice of Motion was allowed by the City Civil Court by order dated 24-7-2012. It is thereafter that the Applicant chose to file the instant Chamber Summons No.1079 of 2012. The timing of the filing of the said Chamber Summons i.e. after the order appointing the Court Receiver was passed by the City Civil Court, therefore lends credence to the submission made by the Learned Counsel appearing for the Petitioner that the said application in question for impleadment has been filed to get over the orders passed by this Court in the said Writ Petition No.2353 of 2012 as also the order appointing the Court Receiver. On this aspect, it would be relevant to note that it is the

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case of the Applicant that its partner was informed by the Defendant No.2 that the Court Receiver would visit the suit premises for taking possession and it is at the said time that the Applicant became aware of the proceedings filed by the Plaintiff. It is impossible to believe that till the said time the Applicant was not aware of the proceedings. It seems that the Applicant was watching the proceedings from the fringes and ultimately when the Court Receiver was appointed that the Applicant chose to jump in the fray and file the instant application. The Trial Court undoubtedly without appreciating the fact that the jurisdictional issue has already been decided against the Defendant Nos.1 and 2 has gone on to observe that the Plaintiff should approach the proper forum i.e. the Small Causes Court. This the Trial Court erred in observing probably on the basis that it is the eviction of the tenant that is sought and not the trespasser. The Trial Court as can be seen from the impugned order has further gone on to record a finding that the Defendant Nos.1 and 2 have nothing to do with the property. On what basis the said finding has been rendered is not clear, the Trial Court thereafter has gone on to observe that the proper forum for the Plaintiff would have been the Small Causes Court. The Trial Court failed to

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take into consideration the fact that it is the Defendant Nos.1 and 2 who are prosecuting the proceedings and had filed the application raising the

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preliminary issue and thereafter the Writ Petition in this Court. The said fact by itself as contended by the Learned Counsel appearing for the Petitioners is a pointer to the fact that it is the Defendant Nos.1 and 2 who seem to have something to do with the suit premises. The Trial Court also failed to take into consideration the averments in the plaint that the Plaintiff found the Defendant Nos.1 and 2 in possession and that the Applicant was doing business at some other place.

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14 In so far as the application filed by the Applicant is concerned, what is significant to note is that prior to the said Chamber Summons being filed, the Applicant never applied to the Court. As indicated above it is impossible to believe that the Applicant was not aware of the proceedings. It is also required to be noted that it is the Applicant who claims to be in possession, however the aspect of possession is sought to be vaguely mentioned in the Written Statement filed by the Defendant Nos.1 and 2. The Suit in question being one for eviction of trespassers the success of the Plaintiff in the Suit would undoubtedly hinge upon the fact as to whether the Plaintiff proves its case that the Defendant Nos.1 and 2 are in possession. If the Defendant Nos.1 and 2 are found to be in possession of

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the premises then undoubtedly the Plaintiff's case for getting reliefs in the Suit becomes stronger. It is therefore for the Applicant to approach the

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appropriate court for seeking the relief for protecting his tenancy in the event it is his case that he is in possession and that the tenancy has been wrongly terminated. The decision in the instant suit which has been filed against the Defendant Nos.1 and 2 on the ground that they are trespassers and they therefore be evicted would not bind the Applicant. In the facts and circumstances of the present case therefore though the Applicant is admittedly a tenant considering the averments made in the plaint and considering the facts which have been adverted to herein above the Applicant can neither be said to be a necessary nor a proper party for adjudication of the lis between the Plaintiff and the Defendant Nos.1 and 2. In my view, therefore the Trial Court has erred in allowing the said Chamber Summons No.1079 of 2012, the impugned order dated 15-32013 is therefore required to be quashed and set aside and is accordingly quashed and set aside. However, it is clarified that the instant order or the decision that would be rendered in the Suit would not come in the way of the Applicant from prosecuting such remedies as are available to it in law.

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15 Rule is accordingly made absolute in the aforesaid terms with parties

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to bear their respective costs of the Petition.

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(R M SAVANT, J)

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Nakhuda Mohammed Ali Rogay s/o. Nakhuda Mohammed Ameen Rogay v. Anzar Ahmed and Ors.

Case brief

What is this about?

What did the court decide?

Nakhuda Mohammed Ali Rogay s/o. Nakhuda Mohammed Ameen Rogay v. Anzar Ahmed and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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