Bombay High Court
Alveena Ceaser Gonsalves vs The Administrator Swapna Akar ... on 19 October, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
10,11.IAL.23940.22 in SL.23933.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 23940 OF 2022
IN
SUIT (L) NO. 23933 OF 2022
Alveena Ceaser Gonsalves ... Applicant/Plaintiff
Versus
The Administrator
Swapna Akar CHSL & Ors. ... Defendants
WITH
INTERIM APPLICATION (L) NO. 23976 OF 2022
IN
SUIT (L) NO. 23968 OF 2022
Rita Martis ... Applicant/Plaintiff
Versus
The Administrator
Swapna Akar CHSL & Ors. ... Defendants
Mr. Naushad Engineer a/w Mr. Sharad Bansal, Mr. Ritesh K. Jain and Mr.
Krishkumar Jain i/b MJ Juris for the Applicant/Plaintiff in
IAL/23940/2022.
Mr. Naushad Engineer a/w Mr. Sharad Bansal, Mr. Ritesh K. Jain and Mr.
Krishkumar Jain i/b MJ Juris for the Applicant/Plaintiff in
IAL/23976/2022.
Mr. Nishit Dhruva, Mr. Prakash Shinde, Ms. Niyati Merchant, Mr. Yash
Dhruva, Mr. Harsh Sheth i/b MDP & Partners for Defendant Nos.3 and 4.
Mr. H.B. Takke, A.G.P. for the State.
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10,11.IAL.23940.22 in SL.23933.22.doc
CORAM : R.I. CHAGLA, J.
DATED : 19th OCTOBER, 2022
ORDER :
1 Mr. Naushad Engineer, learned Counsel appearing for the Applicant/Plaintiff has advanced arguments in support of his application for ad-interim relief. He has placed reliance upon the decision of the Supreme Court in Sadashiv Shyama Sawant vs. Anita Anant Sawant (2010) 3 SCC 385 to contend that the Supreme Court has laid down that a person is said to have been dispossessed when he has been deprived of his possession. Such deprivation may be of actual possession or legal possession. He has further relied upon the decision of this Court in Kumar Gorakhnath Shinde vs. Wider Church Ministries , 2013 (6) Mh.L.J. page 650. In that decision, this Court had laid down three ingredients that are required to establish a claim under Section 6 of the Specific Relief Act which are (i) that the Plaintiff No.1 was in possession of the suit property (ii) it has been dispossessed without the consent of the Plaintiff and otherwise than in due course of law, and (iii) the suit for recovery of possession is filed within a period of six months from the date of alleged dispossession.
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10,11.IAL.23940.22 in SL.23933.22.doc 2 Mr. Engineer has further submitted that this Court in Kumar Gorakhnath Shinde (supra) has held that the question of title or better title of possession does not arise for adjudication in a Suit under Section 6, where the only issue required to be decided is as to whether the Plaintiff was in possession at any time of six months prior to the date of filing of the suit.
3 Mr. Engineer has submitted that 3 ingredients laid down in the decision of this Court in Kumar Gorakhnath Shinde (supra) has been satisfied in the present case. He has relied on certain dates and submitted that purchase of the suit flat from Defendant Nos.3 and 4 was on 18.02.2009. Defendant Nos.3 and 4 had in turn purchased the suit flat from the Society pursuant to agreement dated 09.08.2000. He has then referred to certain proceedings before the Maharashtra State Co-operative Court where dispute was between the Society and Defendant Nos.3 and 4. The Plaintiff had sought impleadment in those disputes and file Miscellaneous Application before the Co-Operative Court seeking recall/review /alteration/modification/revision of order dated 27.09.2021 by which the Co-Operative Court had disposed of the dispute between the Society and Defendant Nos.3 and 4 in favour of the Society by appointing an Administrator. Mr. Engineer has also pointed out that on 04.06.2022 the Plaintiff was dispossessed as lock had been affixed on the suit flat and Waghmare 3/5 10,11.IAL.23940.22 in SL.23933.22.doc notice dated 04.06.2022 had been issued by the Administrator which is pasted on the door of the suit flat.
4 Mr. Engineer has submitted that Defendant No.1 Administrator had unlawfully dispossessed the Plaintiff without following the due process of law. Mr. Engineer has relied on certain documents which are annexed to the Plaint but from these documents it is noticed that there is no mentioned of the Plaintiff's name appearing on these documents which are maintenance bills and receipts of the Society. 5 Mr. Engineer has sought leave to file additional affidavit in support of the Interim Application placing on record the documents to show that the Applicant/Plaintiff has in fact paid these maintenance bills as well as the original receipts are in the possession of the Applicant/Plaintiff to show that the Applicant/Plaintiff was in possession of the subject premises.
6 Defendant No.5 appearing in person has sought time to file application challenging the jurisdiction of this Court as well as disputing the possession of the Plaintiff in respect of the suit premises. 7 The Applicant/Plaintiff shall file additional affidavit in support of the Interim Application on or before 11.11.2022. Waghmare 4/5
10,11.IAL.23940.22 in SL.23933.22.doc 8 Defendant No.5 shall also file additional affidavit in reply to the Interim Application as well as take out appropriate application on or before 11.11.2022.
9 Place the Interim Applications as well as any application that may be taken out by Defendant No.5, on 16.11.2022 to be placed high on board.
10 Defendant No.1-Administrator shall remain present in Court on the next date. The Advocate for the Applicant/Plaintiff shall serve notice of this order on the Defendant No.1-Administrator. 11 Ad-interim relief granted earlier shall continue till the next date.
Digitally WAISHALI signed by WAISHALI SUSHIL (R.I. CHAGLA, J.) SUSHIL WAGHMARE WAGHMARE Date:
2022.10.21 15:42:49 +0530 Waghmare 5/5