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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.704 OF 2010
WITH
CIVIL APPLICATION NO.2799 OF 2010
1. Vinay S/o.Ambadas Kaikini,
Male, Indian Inhabitant,
Residing at Room No.4, Purshottam Building No."B",
Purshottam Tribhuvandas Road, Mumbai 400 004.
2. Ajit Maneshwar Shetty,
Adult, Occupation: Business,
Indian Inhabitant, carrying on business at
Room No.4, Purshottam Building No."B",
Purshottam/Tribhuvandas Road, Mumbai 400 004. .. Appellants
V/s
The Court Receiver,
High Court of Judicature at Bombay, having her office
at Bank of India Building, M.G.Road, Mumbai 400 001. .. Respondent
Mr.K.K.V.Kurup for the Appellants.
Mr.Y.S.Bhate for the Respondent.
CORAM: R.G.KETKAR, J.
DATE: 13th September, 2010.
JUDGMENT:
1. Heard Mr.K.K.V.Kurup, learned counsel for the Appellants
and Mr.Y.S.Bhate, learned counsel for the Respondent at
length. Admit. Mr.Bhate waives service on behalf of the
Respondent. By consent of the parties, appeal is taken up for
final hearing forthwith.
2. This appeal is preferred by the original Defendants
challenging the judgment and decree dated 22nd February,
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2010 passed by learned Judge of the Bombay City Civil Court
at Bombay in S.C.Suit No.1154 of 2000. By that judgment, the
learned trial Judge decreed the suit instituted by Respondent in
terms of prayer clause (a). Appellants shall hereinafter be
referred as original Defendants and Respondent shall
hereinafter be referred as plaintiff. The facts giving rise to the
filing of the present appeal are as under:-
3. Plaintiff instituted suit for declaration that Defendants are
tresspassers qua the premises bearing Room No.4 in
Purshottam Building
ig No.B, situate at Purchottam
Tribhuwandas Road, Mumbai 400 004 (for short the suit
premises) and for direction to the Defendants to quit, vacate
and hand over vacant and peaceful possession of the suit
premises in favour of the plaintiff for implementation of the
orders passed by the City Civil Court, Mumbai. Plaintiff came
with the case that one Narayan Shivram Thakur had filed
S.C.Suit No.9083 of 1969 in the City Civil Court at Bombay
for dissolution of partnership firm viz. Sunder Printing Press
and for consequential reliefs therein against its partners
Vishwanath Ramchandra Sawant being Defendant No.1 and
Vasant Achyut Desai being Defendant No.2. Partnership was
carrying on business from Room Nos.3, 4 and 6 in Purshottam
Building No.B. Room Nos.3, 4 and 6 were tenanted premises.
There was common rent receipts for Room Nos.3 & 4 which
stood in the name of one Nanabhai Parab, original tenant of
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the said rooms. Even at present in respect Room Nos.3 & 4
rent receipts stand in the name of said Parab. The monthly
rent of Room Nos. 3 & 4 is Rs.347/-. Plaintiff further asserted
that rent receipts in respect of Room No.6 was and/or is in the
name of Defendant No.2-Vasant Achyut Desai in Suit No.
9083 of 1969. Plaintiff and the Defendants in the the said suit
were in use and occupation and possession of the Room Nos.3,
4 and 6 and were carrying on partnership business from the
said premises. The rent of Room Nos.3 & 4 was regularly paid
by Defendant No.2 – Vasant Desai in the said suit and after his
death, by his heirs and legal representatives.
4. Suit No.9083 of 1969 was amicably settled between the parties
and they filed consent terms dated 27th April, 1981. Under
clause 4 of the consent terms, Court Receiver, High Court,
Bombay was appointed as a receiver of all assets of the suit
partnership and also of tenancy rights of the premises held by
the partnership firm, as also of the business carried on by the
partnership firm. The decree came to be passed in terms of the
consent terms dated 27th April, 1981.
5. It is the case of the plaintiff that Defendant No.1 –
Smt.Garijabai R.Kaikini and original Defendant No.2 –
Ambadas Ramrao Kaikini in the present suit claimed to be
heirs and legal representatives of Ramrao Kaikini who was
purportedly in possession of the suit premises. Presently
Defendants No.3- Ajit M.Shetty is in possession of the suit
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premises illegally and he was put in possession by
Smt.Girijabai and Ambadas Kaikini.
6. Plaintiff further asserted that in Suit No.9083 of 1969, said
Ramrao took out Notice of Motion No.1176/1982 for
possession of Room No.3, alleging that the same was handed
over by Court Receiver to Mr. Ashok Vishwanath Sawant, son
of Defendant No.1 in Suit No.9083 of 1969. Said Ramrao also
sought protection against eviction from suit premises and
prayed that he should not be evicted from the suit premises
without following due process of law. Said Notice of Motion
was opposed by Mr.Ashok Vishwanath Sawant by filing reply.
7. Plaintiff further asserted that Vasant Achut Desai, Defendant
No.2 in Suit No.9083/1969 took out Notice of Motion No.
2159/1982 in the said suit for direction to the Court receiver to
take possession of the suit premises from the said Ramrao in
terms of the consent terms dated 27th April, 1981. Notice of
Motion No.1176/1982 as also Notice of Motion No.2159/1982
were disposed of in terms of the consent terms dated 13th July,
1982 entered into between the parties to the suit as also said
Ramrao and Ashok Sawant. In clause (2) of the said consent
terms, Applicant No.1 Ramrao handed over symbolic
possession of the suit premises and the Court Receiver was
permitted and authorised to adopt legal proceedings against
Ramrao for obtaining actual physical possession from him.
8. It is the further case of plaintiff that plaintiff and Defendants in
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Suit No.9083 of 1969 came to know about death of Ramrao
and therefore constituted attorney of the plaintiff in Suit No.
9083 of 1969 addressed a letter dated 16th February, 1994 to
the Court Receiver (plaintiff herein) and requested the later to
make enquiries about physical possession of the suit premises.
Pursuant to this letter, the constituted attorney of the plaintiff
in Suit No.9083 of 1969, Mr.Prashant Joshi, one of the officers
of plaintiff herein, visited the suit premises on 8th October,
1996 and found Defendant No.3- A.M.Shetty and his
employees in possession and they were using the suit premises
for manufacture of Agarbattis. Said officer prepared report
dated 8th October, 1996. During the visit of the officer it was
revealed that the said Ramrao expired on 5th February, 1986.
Plaintiff therefore convened meeting in it’s office on 9th
December, 1996 and called upon Defendant No.1
Smt.Girijabai and original Defendant No.2 Mr.Ambadas to
quit, vacate the hand over vacant possession. Smt.Girijabai
and Mr.Ambadas took out the Chamber Summons No.54 of
1996 in Suit No.9083 of 1969 for substitution of their names in
place of original applicant Ramrao Kaikini. On 12th March,
1997 order was passed in the said Chamber Summons
directing the Court Receiver to visit the suit premises to find
out as to who is in actual possession. The officer of the Court
Receiver visited the premises on 12th March, 1997 at 4.30
p.m.and submitted report dated 13th March, 1997. Chamber
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summons was dismissed on 20th March, 1997 and the learned
Judge of the City Civil Court directed the plaintiff herein to
institute suit against the persons found in possession of the suit
premises on or before 13th April, 1997.
9. Plaintiff further asserted that Defendant No.1 – Smt.Girijabai
and original Defendant No.2 Mr.Ambadas took out Notice of
Motion No.2622 of 1998 in Suit No.9083 of 1969 for
transferring tenancy rights of the premises in favour of
Appellants-Defendants Nos.1 and 2. Plaintiff further submitted
that, as such the Defendants are tresspassers, and as the
tresspass is a continuing wrong, suit is not barred by law of
limitation. On these among other assertions, plaintiff instituted
the suit.
10.The Defendants filed written statement interalia contending
that they are tenants of the suit premises and therefore City
Civil Court has no jurisdiction to entertain and try the suit, and
only the rent court will have jurisdiction to decide the issues
involved in the suit. It was further contended that plaintiff has
not impleaded all the necessary parties to the suit and
consequently suit is liable to be dismissed for non-joinder of
necessary parties. Defendants contended that the suit is also
barred by limitation. Under the consent terms dated 27th April,
1981, Court directed the Court Receiver to take appropriate
action for recovery of possession, however, present suit was
instituted on 11th January, 2000 and consequently the same
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suffers from gross delay and latches. Defendants also
submitted that Defendant No.1 Girijabai instituted RAD Suit
No.806 of 2000 in the Court of Small Causes at Bombay for
declaration that she and Ambadas are the tenants of the suit
premises and consequently they cannot be evicted therefrom,
otherwise than due process of law. It was further contended
that the Notice of Motion No.1176 of 1982 and Notice of
Motion No.2159 of 1982 were disposed of by consent terms
dated 13th July, 1982. The consent terms provided that
Ramrao handed over symbolic possession of the suit premises
to the Court Receiver and the Court Receiver was authorised
to adopt legal proceedings for obtaining actual physical
possession form Ramrao. Even from that time onwards, no
action was taken and the present suit instituted on 11th
January, 2000 suffers from gross delay and latches.
11.Defendants further submitted that at any rate on 20th March,
1997 the Court directed plaintiff to institute suit on or before
13th April, 1997. Pursuant to that direction, no suit was
instituted within the stipulated time and even otherwise suit
suffers from gross delay and latches. It was also submitted that
the plaintiff is claiming mesne profits and/or compensation
from the Defendants @ Rs.3000/- p.m.from the date of filing
of the suit and therefore, the City Civil Court will have no
pecuniary jurisdiction to entertain and try the suit as suit will
have to be valued on the basis of 150 times of the monthly
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compensation. On these among other grounds, the Defendants
resisted the suit.
12.On the basis of rival pleadings of the parties, the learned Trial
Judge framed necessary issues. Plaintiff examined Mr.Ajay
Yashwant Melekar, constituted attorney of the plaintiff as PW1
and the Defendants examined Defendant No.2 Mr.Ajit
M.Shetty. Both the parties produced documents in support of
their case.
13.Considering the evidence on record, by the judgment and
decree the trial Court decreed the suit in terms of prayer clause
(a) of the plaint and declared that the Defendants are
tresspassers qua the suit premises and they were further
directed to quit, vacate and hand over vacant and peaceful
possession of the suit premises in favour of the plaintiff for
implementation of the orders passed by this Court.
14.By order dated 13th July, 2010 Record & Proceedings of the
case was called for. Learned counsel for plaintiff also filed
compilation of relevant documents. With the assistance of
learned counsel appearing for the parties I have gone through
the record and proceedings of the case.
15.In support of this appeal, I have heard Mr.K.K.V.Kurup,
learned counsel for the Defendants and Mr.Y.S.Bhate, learned
counsel for the plaintiff at length. Mr.Kurup, learned counsel
for Defendants raised the following contentions:
(1) City Civil Court, Mumbai has no jurisdiction to entertain
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and try the suit. Defendants are the tenants of the suit premises
and are not the tresspassers. If that be so, only the rent court
will have jurisdiction to decide the issues involved in the suit.
(2) Even otherwise, the City Civil Court, Mumbai will have
no pecuniary jurisdiction to entertain and try the suit. Plaintiff
has claimed compensation @ Rs.3000/- p.m and consequently,
plaintiff will have to value the suit for possession on the basis
of 150 times of the monthly compensation.
(3) Under order dated 27th April, 1981, the Court Receiver,
High Court, Bombay was directed to institute the suit for
obtaining possession of the suit premises and the present suit is
instituted on 11th January, 2000. Suit therefore clearly suffers
from gross delay and latches and is liable to be dismissed.
16.On the other hand, Mr.Bhate, learned counsel for the plaintiff
supported the impugned judgment and decree. He submits that
Defendants are clearly the tresspassers and are not the tenants.
Defendant No.1 had instituted RAD Suit No.806 of 2000 in
the Court of Small Causes at Bombay for a declaration that
she and Ambadas are the tenants of the suit premises. Said suit
was dismissed for default and no steps were taken for
restoration of the said suit. He therefore submitted that it is not
open to the Defendants now to contend that they are tenants of
the suit premises. He further submitted that the monthly rent
in respect of the Room Nos.3 and 4 is Rs.347/- and therefore
rate of monthly rent for Room No.4 being the suit premises
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would be one half of Rs.347/- i.e.Rs.173.50 per month. The
suit is for a declaration and possession and is valued at Rs.
26025/- i.e.150 times of Rs.173.50. He therefore submitted
that the City Civil Court, Mumbai will have pecuniary
jurisdiction as well to entertain and try the suit. He submitted
that the Defendants are tresspassers and the tresspass being a
continuing wrong, having regard to Section 22 of the
Limitation Act, 1963, (for short the Act) a fresh period of
limitation begins to run at every moment of time during which
the breach continues. He therefore submitted that suit is not
barred by limitation. He prayed for dismissal of the appeal.
17.I have considered the rival submissions made by learned
counsel for the parties. With the assistance of learned counsel
for the parties, I have carefully gone through the material on
record. Considering the rival contentions raised by the parties,
following points arise for my determination:-
(1) Whether plaintiff proves that Defendants are
tresspassers in the suit premises?
Answer:- Affirmative.
(2) Whether plaintiff proves that Defendant No.1
Girijabai and original Defendant No.2 Ambadas had
illegally inducated Defendants No.3 (now Def.No.2) Ajit
M.Shetty in the suit premises?
Answer:- Affirmative.
(3) Whether Defenants prove that the City Civil Court,
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Mumbai has no jurisdiction to entertain and try the suit?
Answer:- Negative.
(4) Whether Defendants prove that the suit is time
barred?
Answer:- Negative.
(5) Whether Plaintiff is entitled to decree against
Defendants as prayed for?
Answer:- Affirmative.
(6) What order?
Answer:- As per the final order.
18.Before I consider the merits of the case, brief reference to the
checkered history of the litigation is required to be mentioned.
As indicated earlier, Narayan Shivram Thakur had instituted
Suit No.9083/1969 in the City Civil Court at Bombay against
his partners Defendant No.1 Vishwanath Sawant and
Defendant No.2 Vasant Achyut Desai for dissolution of
partnership firm viz. Sunder Printing Press and for
consequential reliefs. On 18th December, 1969 upon the
application made by Advocate appearing for said Thakur and
upon reading the affidavit of Thakur affirmed on 17th
December, 1969 and upon reading plaint declared on 17th
December, 1969 and also upon hearing learned Advocate for
Mr.Thakur in support thereof, the learned Judge of the City
Civil Court ordered that until hearing & final disposal of the
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Notice of Motion, the Court Receiver, High Court, Bombay be
appointed interim receiver for the limited purpose of taking
charge of books of accounts among others. Learned Trial
Judge further ordered that in the meantime and until hearing
and final disposal of the said Notice of Motion, Defendants
and their servants be restrained from disposing of the assets,
books of accounts, documents, vouchers and papers, except in
the ordinary course of business. Thus by order dated 18th
December, 1969 learned trial Judge restrained Defendants
being Defendant No.1 Vishwanath Sawant and Defendant No.
2 Vasant Achyut Desai from disposing of the assets of the
partnership firm.
19.By order dated 16th February, 1970 learned Judge of the City
Civil Court, Bombay appointed Court Receiver and the Notice
of Motion was made absolute in terms of prayer clauses (a)
and (b). Mr.Vasant Achut Desai, Defendant No.2 in S.C.Suit
No.9083/1969 took out Chamber Summons on 17th
December, 1973 against Plaintiff – Narayan Thakur and
Defendant No.1 – Vishwanath Sawant praying for a direction
to the Court Receiver to take possession of the assets, running
business etc. and the tenancy rights of the entire premises of
Sunder Printing Press, if necessary by force and assistance of
police authorities. On 29th March, 1974 learned Chamber
Judge, after hearing Advocate for Defendant No.2 (Vasant
Achyut Desai) in support of the Chamber Summons, and the
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Advocate for Plaintiff (Mr.Thakur), as also Advocate for
Defendant No.1 (Vishwanath Sawant), by consent appointed
the Court Receiver of the suit partnership. Court Receiver was
directed to make inventory of the assets of the partnership and
to appoint Defendant No.1-Vishwanath Sawant as an agent of
the Court Receiver without security on certain terms and
conditions.
20.Parties to the suit No.9083/1969 entered into the consent terms
on 27th April, 1981. Under clause 4 of the consent terms,
Court Receiver, High Court, Bombay was appointed Receiver
of all the assets of the suit partnership and also of the tenancy
rights of the premises held by the suit partnership. Court
Receiver was directed to take all necessary legal steps to
recovery possession from the persons who may obstruct
possession and to file all necessary suit for that purpose.
Clause 4 of the said consent terms reads as under:-
“By consent Court Receiver, High Court, Bombay, be and
is hereby appointed Receiver of all the assets of the suit
partnership and also of the tenancy rights of the premises
held by the suit partnership and also of the business carried
on by the suit partnership at Purshottam Buildijng,
Tribhuvandas Road, Bombay 400 004. The Court Receiver
do act on the certified copy of the Roznama of the order
passed herein and to take possession of the suit partnership
business alongwith the premises thereof at Purshottam
Building, Tribhuvandas Road, Bombay 400 004. The court
Receiver do take all necessary legal steps to recover
possession from any person who may obstruct possession
and do file all necessary suits for that purpose.”
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21.Mr.Ramrao Kaikini claiming to be in possession of the suit
premises took out Notice of Motion No.1176/1982 in Suit No.
9083/1969 on 13th January, 1982 praying interalia for
mandatory injunction to the Court Receiver to hand over back
possession of Room No.3 as also for injunction restraining the
Court Receiver from taking possession of the suit premises. In
support of this Notice of Motion, Ramrao filed affidavit
contending interalia that he was wrongly dispossessed from
Room No.3 and that Defendant No.1 Vishwanath Sawant gave
him Room No.3 and suit premises on 11th March, 1972 on
leave & licence basis. He claims to be in exclusive possession
of Room No.3 and the suit premises from 11th March, 1972.
This Notice of Motion was opposed by Mr.Ashok V.Sawant,
son of Defendant No.1, by filing affidavit in reply dated 28th
June, 1982.
22.Defendant No.2 in Suit No.9083/1969 viz. Vasant Achyut
Desai took out Notice of Motion No.2159/1982 on 26th April,
1982 praying for direction to the Court Receiver to take
possession of Room No.4 being suit premises from Ramrao
Kaikini in terms of the decree dated 27th April, 1981 by
removing obstruction, if any and by assistance of police, if
required. In support of this Notice of Motion, Mr.Vasant
Achyut Desai filed affidavit dated 26th April, 1982. Notice of
Motion No.1176/1982 taken out by Ramrao and the Notice of
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Motion No.2159/1982 taken out by Defendant No.2 Vasant
Achyut Desai were disposed of by consent terms dated 13th
July, 1982. Clause 2 of the consent terms reads as under:-
“By consent, the 1st applicant do hand over symbolic
possession of Room No.4 at present in his occupation to the
Court Receiver, High Court, Bombay. Court Receiver is
hereby permitted and authorised to adopt legal proceedings
against the 1st applicant herein for obtaining actual physical
possession of the said Room No.4 from the 1st applicant.
Till the final disposal of these proceedings the Court
Receiver will not dispossess the 1st applicant so long as he
continues to pay a sum of Rs.75/- p.m on or before the 10th
day of each and every calender month in advance from 1st
July, 1982 to the court Receiver without committing any
default.”
Under clause 2 it provided for Ramrao handing over symbolic
possession of the suit premises at that time in his occupation to
the Court Receiver, Bombay. Court Receiver was permitted
and authorised to adopt legal proceedings against him for
obtaining actual physical possession of the suit premises.
23.It is the case of the plaintiff that subsequently the plaintiff and
Defendants in Suit No.9083 of 1969 came to know that said
Ramrao had died. Therefore the constituted attorney of
plaintiff, viz.Prashant Joshi addressed a letter dated 16th
February, 1994 to the Court Receiver for making inquiries
about the physical possession of the suit premises. Pursuant
thereto, officer of the Court Receiver visited the premises on
8th October, 1996 and inquired about the possession of suit
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premises. During his visit, it transpired that Appellant No.2
herein Mr.A.M.Shetty and his employees were found in
possession. Officer prepared report dated 8th October, 1996.
Pursuant to that, a meeting was convened in the office of
Plaintiff on 9th December, 1996 and Smt.Girijabai and
Mr.Ambadas original Defendant No.2 and Mr.Vinay Ambadas
claiming to be heirs and legal representatives of Ramrao were
called upon to quit and handover vacant and peaceful
possession of the suit premises.
24.Smt.Girijabai and Mr.Ambadas took out Chamber Summons
No.54 of 1996 in Suit No.9083/1969 for substituting their
names, which was dismissed on 20th March, 1997 and the
plaintiff was directed to institute suit on or before 13th April,
1997. It is the case of the plaintiff that Defendants are the
tresspassers and the tresspass being a continuing wrong, suit
instituted on 11th January, 2000 is within limitation.
25.The aforesaid facts are brought on record by PW Mr.Ajay
Yashwant Melekar. He was cross-examined by Defendants.
Mr.Kurup submitted that the said witness has no personal
knowledge and consequently, his evidence cannot be taken
into consideration. I do not find any merit in this submission.
The witness has produced documents on record, which are in
the nature of proceedings of the Court. He has deposed on the
basis of these documents. The submission that he does not
have personal knowledge, in my opinion, is devoid of any
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substance.
26.Defendants examined Ajit M.Shetty. In the affidavit in
examination in chief, he stated that original Defendant No.1
Girijabai in the present suit had instituted RAD suit No.806 of
2000 in the Court of Small Causes at Bombay for declaration
that she and Ambadas are the tenants of the suit premises.
Girijabai is real sister of his mother. Ambadas, original
Defendant No.2 died on 1st September, 2000 and his son
Vinay is brought on record. Girijabai expired on 8th August,
2003. As such, suit is now against Defendant No.1 Vinay and
Defendant No.2 Ajit M.Shetty. He deposed that the present suit
suffers from gross delay and latches and is beyond limitation.
In the cross-examination, DW Mr.Shetty expressed ignorance
about the orders dated 18th December, 1969 (injunction order)
and 16th February, 1970 (order appointing Court Receiver).
He admitted that Defendant No.1 Vinay has not given power
of attorney to him to appear in this matter. Initially he deposed
that he did not know as to whether said suit was numbered
R.A.D. Suit No.806 of 2000. He however admitted that suit
was filed by Girijabai and Ambadas and in that suit he had
filed affidavit to bring heirs and legal representatives of
Ambadas on record. He was not sure as to whether the suit
was dismissed in default. He further deposed that the suit was
dismissed in default. He admitted that he does not have any
document to show that the suit premises was transferred in his
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favour. He however volunteered that he has rent/compensation
receipts issued by the Court Receiver.
27.From the material on record, it is abundantly clear that by
order dated 18th December, 1969 passed in Suit No.9083/1969
learned Judge of the City Civil Court restrained the
Defendants from disposing of the assets. By subsequent order
dated 16h February, 1970 the Court Receiver was appointed.
By order dated 29th March, 1974 Court Receiver was directed
to make inventory of the assets of the partnership and
Defendant No.1 was appointed as an agent of the Court
Receiver, without security. In support of the Notice of Motion,
Ramrao filed affidavit wherein it is his specific case that
Defendant No.1 Vishwanath Sawant, put him in possession of
the Room No.3 and the suit premises on 11th March, 1972.
Thus, Defendant No.1 acted contray to the injunction order
dated 18th December, 1969 and inducted Ramrao. As noted
earlier, Defendant No.1 Vishwanath Sawant was appointed as
agent of the Court Receiver and consequently, he could not
have inducted Ramrao in the suit premises. In suit No.
9083/1969 consent terms dated 27th April, 1981 were filed and
a decree was passed in terms of the consent terms. Under
clause 4 of the consent terms, the Court Receiver was
appointed of all the assets of the partnership firm and also of
the tenancy rights of the premises held by the partnership.
Since Defendant No.1 Vishwanath had already inducted
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Ramrao in the suit premises, Court Receiver was directed to
take all necessary steps to recover possession from any person
who may obstruct the possession and to file necessary suit for
that purpose. Notice of Motion No.1176/1982 taken out by
Ramrao and Notice of Motion No.2159/1982 taken out by
Defendant No.2 Vasant Achyut Desai were disposed of by
consent terms dated 13th July, 1982.Clause 2 thereof provided
that by consent first applicant therein, Ramrao do hand over
symbolic possession of the suit premises at present in his
occupation to the Court Receiver, High Court, Bombay. The
Court Receiver was permitted and authorised to adopt legal
proceedings against the Ramrao for obtaining actual physical
possession of the suit premises.
28.Mr.Kurup submitted that the suit in the City Civil Court is not
maintainable as the Defendants are the tenants of the suit
premises. In my opinion, considering the material on record,
the said submission is devoid of any substance. Defendants
cannot claim to be tenants of the suit premises as it has come
on record that Ramrao was put in possession of the suit
premises, contrary to the injunction order dated 18th
December, 1969. That apart, RAD Suit No.806 of 2000
instituted by Girijabai and Ambadas for declaration of tenancy
in respect of the suit premises was dismissed in default.
Nothing is brought on record to show that the present
Defendants took out any proceedings for restoration of the said
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suit. In these circumstances, it cannot be said that the
Defendants are tenants. Since Ramrao was put in possession
contrary to the injunction order, in my opinion, Defendants are
tresspassers. Mr.Ajit M.Shetty also admitted in the cross-
examination that he does not have any documents to show that
the suit premises were transferred in his favour. I am therefore
clearly of the opinion that the suit instituted in the City Civil
Court, Mumbai against the tresspassers is maintainable.
29.Mr.Kurup further submitted that at any rate the City Civil
Court, Mumbai will have no pecuniary jurisdiction as the
plaintiff claimed monthly compensation @ Rs.3000/-. I am not
impressed by this submission as well. In paragraph No.26 of
the plaint, the plaintiff has valued the suit at Rs.26025/- i.e.150
times of Rs.173.50 (being the monthly rent of Room No.4 –
suit premises). Considering the valuation made by plaintiff,
the City Civil Court, Mumbai will undoubtedly have
pecuniary jurisdiction to entertain and try the suit.
30.Mr.Kurup submitted that at any rate suit is barred by
limitation. He submitted that under consent terms dated 27th
April, 1981, the Court Receiver was directed to take steps for
recovering possession by filing necessary suit for that purpose.
Even thereafter as per the consent terms dated 13th July, 1982
the Court Receiver was permitted to adopt legal proceedings
against Ramrao for obtaining actual physical possession. That
apart by order dated 20th March, 1997 learned Judge directed
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plaintiff to instituted suit on or before 13th April, 1997. Even
by that time, suit was not instituted and the present suit is
instituted on 11th January, 2000 and consequently it suffers
from gross delay and latches, and hence the suit is liable to be
dismissed, being barred by limitation. On the other hand
Mr.Bhate relying upon Section 22 of the Act, submitted that
Defendants are tresspassers and have no semblance of right,
title and interest in the suit premises. Tresspass, being a
continuing wrong, fresh period of limitation begins to run at
every moment of time during which the breach continues. He
therefore submitted that the suit is well within limitation.
31.I have already held that Defendants are tresspassers and they
have no semblance of right, title and interest in the suit
premises. Section 22 of the Act reads as under:-
“In the case of a continuing breach of contract or in the case
of a continuing tort, a fresh period of limitation begins to
run at every moment of the time during which the breach or
the tort, as the case may be, continues.”
Section 2(m) of the Act defines “tort” to mean a civil wrong
which is not exclusively the breach of a contract or the breach
of a trust. Tresspass upon the immovable property is
unwarrantable entry upon the immovable property of another
or any direct and immediate act of interference with the
possession of such property. Tresspass is a wrongful act done
in disturbance of the possession of the property of another or
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against the person of another against his will. The tresspass
continues so long as unlawful entry lasts. Thus the right to
sue will continue de die in diem till it is removed. The
wrongful acts of Defendants are of such a character that the
injury caused by them is continuous. The acts of Defendants
constitute a continuing wrong. Tresspass being a continuing
wrong, having regard to section 22 of the Act, in my opinion,
suit is not time barred.
32.Even otherwise in respect of the suit premises the Court
Receiver was appointed. Suit premises
ig are custodia legis.
Court Receiver is an officer of the Court and acts in
accordance with the directions issued by the Court. It is a
settled principle of law that party should not suffer because of
the mistakes committed either by the Court or its officers. The
Court Receiver was directed by the Court to institute suit for
recovery of possession. By order dated 27th April, 1981 Court
Receiver was further directed to auction the goodwill and
trade-name of the partnership alongwith the benefit of the
tenancy rights of the suit business as a going concern among
the parties in Suit No.9083/1969 and the parties in that suit
were at liberty to bid for the same for themselves only, and
not for the benefit of any third party.
33.Since the Court Receiver was appointed by the Court, the
parties to Suit No.9083/1969 could not have instituted the suit.
For all these reasons, I do not find any substance in the
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contentions raised by Defendants that suit is time barred.
Considering the facts and circumstances of the case, as also
the material on record, I do not find that the learned Trial
Judge has committed any error in decreeing the suit. First
appeal is devoid of any substance and is liable to be dismissed.
First appeal is dismissed. In the circumstances of the case,
there shall be no order as to costs.
34.In view of dismissal of the first appeal, Civil Application No.
2799 of 2010 stands disposed of.
35.After pronouncement of the judgment, Mr.Kurup submitted
that the Court Receiver took possession of the suit premises on
30th June, 2010. When the Court Receiver took possession of
the suit premises, certain articles of Defendants were lying,
in respect of which inventory was made. Said inventory is
jointly signed by plaintiff and Defendants. Mr.Kurup therefore
submitted that since these articles are admittedly belonging to
Defendants, plaintiff may be directed to hand-over the same to
Defendants at the earliest. Mr.Bhate submitted that within one
week from today these articles will be handed over to
Defendants at the suit premises. Statement is accepted. Order
accordingly.
36.Parties to act on the authenticated copy of this order.
(R.G.KETKAR, J.)
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