Panorame Estate and Another vs Raad Khalid and Another

D.R. Dhanuka, J.—By this notice of motion, the plaintiffs seek directions from this Court to the Court Receiver, High Court, Bombay, to take physical possession of the suit flats and various other interim reliefs as set out therein.

The plaintiffs No. 1 is the owner of the suit flats described in para 1 of the plaint. The plaintiffs have filed this suit for possession, arrears of compensation and mesne profits against the defendants after obtaining consent of the Central Government as required u/s 86(2) of the Code of Civil Procedure. The plaintiffs have filed this suit based on title and have formulated their cause of action in the plaint on the footing that the occupation of the suit premises by the defendants constitutes a trespass and the defendants are liable to handover vacant and peaceful possession of the suit flats to the plaintiffs. The plaintiffs have so stated in para 24 of the plaint. The defendants claim that the defendant No. 2 is the tenant in respect of the suit flats. The plaintiffs deny the said claim of the defendants. The suit is still to be heard.

Soon after filing of the suit, the plaintiffs took out a notice of motion No. 1777 of 1993 in this Court for Interim Reliefs including for appointment of Court Receiver, High Court, Bombay as the Receiver of the suit flats. By an Order dated 2nd December, 1993, A.P. Shah, J. dismissed the said notice of motion.

Being aggrieved by the said Order dated 2nd December, 1993, the plaintiffs preferred an appeal before the Hon''ble Division Bench of this Court. The said appeal was numbered as Appeal No. 86 of 1994. The said appeal was admitted. By an Order dated 8th February, 1994, passed on notice of motion taken out in the said appeal, the Hon''ble Division Bench of this Court appointed Court Receiver, High Court, Bombay as Receiver of the suit flats. In view of the events which has happened during the pendency of the appeal the Hon''ble Division Bench of this Court issued suo motu Contempt Notice No. 124 of 1994 against the various contemners including defendant No. 1 in this suit. By an Order dated 23rd June, 1994, the said contempt proceedings were disposed of by the Hon''ble Division Bench of this Court. The Hon''ble Division Bench accepted the apologies tendered by the various contemners and directed discharge of the suo motu contempt notice as well as cancellation of the non-bailable warrants issued against the contemners.

It appears to be desirable to refer to para 4 of the Order passed by the Hon''ble Division Bench in the said proceedings. It appears that the defendants were ready and willing to handover vacant possession of the suit flat to the plaintiffs provided the plaintiffs did not pursue their monetary claim in the suit in sum of Rs. 2,40,00,000/- and future compensation. It was stated by the learned Counsel for the defendants at the bar as recorded by the Hon''ble Division Bench that the keys of the suit premises will be brought to the Court to handover vacant possession of the suit flat to the plaintiffs provided the plaintiffs agreed not to claim for their monetary claim. The plaintiffs decided not to give up their monetary claim and the dispute could not be, therefore, settled. It is so stated in para 4 of the order.

On 4th July, 1994, the above referred appeal i.e. Appeal No. 86 of 1994 was finally disposed of in terms of the minutes of the order tendered before the Court. There is a controversy between the parties as to whether order passed by the Hon''ble Division Bench on 4th July, 1994 was a consent order or was passed as an order in invitum. By the said minutes of the Order, it was provided that during the pendency of the suit, the Court Receiver shall continue to be in formal possession of the suit premises without dispossessing the defendants and the defendants shall enter into an agreement with the Court Receiver agreeing to pay certain amounts to Court Receiver every month. It may be stated here and now that Review Petition filed being Review Petition No. 7 of 1995, was dismissed by the Division Bench of this Court by its Order dated 13th October, 1995. The said Review petition was filed by the plaintiffs much earlier.

On 24th October, 1994, the plaintiffs presented draft notice of motion No. 2738 of 1994 and applied for Ad interim Relief in terms of prayer (a) of the notice of motion. After the usual leave was granted by the Court entitling the plaintiffs to get the said notice of motion registered, the said notice of motion was numbered and registered as notice of motion No. 2738 of 1994 in regular course.

By an Order dated 24th October, 1995 A.V. Savant, J. directed the Court Receiver, High Court, Bombay to take physical possession of the suit flats and thus passed an Ad-interim Order in terms of prayer (a) of this notice of motion i.e. Notice of Motion No. 2738 of 1994. The defendants were not represented before the Court on 24th October, 1994. Since the defendants came to know about the said Order, the defendants moved this Court for setting aside the above referred ex parte Order dated 24th October, 1994 by taking out notice of motion No. 1766 of 1995. By an Order dated 26th October, 1995, the said ex parte Ad-interim Order dated 24th October, 1995 was stayed. Notice of Motion No. 2738 of 1994 and Notice of Motion No. 1766 of 1995 are now heard by this Court.

The learned Counsel for the plaintiffs has mainly relied on the following documents on record in support of their case regarding change of circumstances and subsequent events justifying this application.

(a) By letter dated 6th February, 1995 (Exhibit-1 to the additional affidavit of plaintiff No. 2 being affidavit dated 21st June, 1995), the Govt. of India Ministry of External Affairs informed plaintiff No. 2 as under.

Please refer to your letter dated 2nd January, 1995 regarding vacation of your premises occupied by the Consulate General of Iraq in Bombay. The matter was referred to Iraqi Embassy in New Delhi for its comments. Iraqi Embassy vide their note verbal No. 17/95 dated 31st January 1995 has furnished their reply in this regard. The copy of the reply which is self explanatory is enclosed for your information. Copy of the said note dated 31st January, 1995 forms part of Exhibit 1 to the above referred affidavit dated 21st June, 1995.

(b) By letter dated 17th February, 1995, the Govt. of India, Ministry of external Affairs informed plaintiff No. 1 that the Consulate General of Iraq in Bombay was closed and no appointment of Consulate General had been made by the Iraqi Government after the departure of Mr. Raad Khalid, in June, 1994. A copy of the said letter is Exhibit "2" to the said affidavit dated 21st June, 1995;

(c) By letter dated 26th July, 1995, the Govt. of India, Ministry of External Affairs has informed the plaintiff No. 1 as under:

It is hereby informed that Mr. Hosham A. Ibrahim is a Counsellor at Embassy of Iraq, Delhi. However, no permission has been granted for reopening of the Iraqi Consulate General at Bombay after its closure last year

It follows from the facts that w.e.f. June, 1994, the office of Iraq and Consulate General at Bombay does not exist and no permission has yet been granted by the Govt. of India to defendant No. 2 to reopen the office of the Iraq Consulate General at Bombay. Thus the purpose for which the suit flats could be lawfully used, if at all, does not subsist.

The learned Counsel for the plaintiffs has also relied on bailiff report dated 2nd September, 1994, copy whereof is Exhibit-C to the affidavit dated 21st October, 1994, made by the plaintiff No. 2 in support of the notice of motion. It is stated in the said report that "upon making inquiries with the Manager of the Society it was revealed that the defendants abandoned premises in the month of June, 1994 and Iraq Consulate General was stated to be closed since then."

The learned Counsel for the defendants has relied on letter addressed by Mr. Hosham A. Ibrahim to Mr. Ghelani being letter dated 11th April, 1995 and note of Embassy of Republic of Iraq bearing No. 54/94 dated 28th March, 1994. Copies of the said two documents are annexed to the affidavit of Mr. Hosham A. Ibrahim dated 13th September, 1995 filed in Review Petition No. 7 of 1995. It appears to be the case of the defendants that the decision of the Government of India to close down the Iraq Consulate General in Bombay was a temporary measure and the Govt. of Iraq had decided to reopen the office of Consulate General in Bombay in near future, i.e. since the reasons which enforced the Government of Iraq to take the said temporary measure had vanished. It is also the case of the defendants that the defendants have already made an application to the Government of India for its permission to reopen the office of the Consulate General at Bombay. It is not the case of the defendants that the defendants have received any written permission from the Govt. of India in this behalf even though about a year and half has gone by since the office of the Iraq Consulate General in Bombay was closed down. The learned Counsel for the defendants has informed the Court that he has received a fax message dated 15th December, 1995 from Mr. Hosham A. Ibrahim from Delhi to the effect that the Gulf Division of the Ministry of External Affairs New Delhi has informed the Embassy orally that the Iraq Government can re-start the work of its Consulate General in Bombay as and when the Government of Iraq wishes to so start. The said fax message is not supported by any letter from Government of India. No weightage can be attached to a bald plea in absence of a supporting letter from Govt. of India.

The learned Counsel for the defendants has also invited attention of the Court to the report submitted by the Court Receiver to the Hon''ble Division Bench of this Court in pursuance of the Order passed by the Hon''ble Division Bench on 17th June, 1994 and also the report submitted by the Court Receiver''s representative to the Court Receiver. Copies of the said reports formed part of annexures to the affidavit in reply filed by Mr. Hosham A. Ibrahim in notice of motion No. 2738 of 1994. It is stated in the said report that all the furniture, fixtures, things, articles, electrical fittings, telephone etc. including the partition cabins etc. were already removed from the suit premises and the suit flats appear to be in a non-habitable condition. It appears from the said report that no furniture was found in the suit flat in June, 1994 when the Court Receiver''s representative alongwith the Court Receiver himself visited the suit flats.

I shall refer to the submissions made by the learned Counsel for the defendants across the bar during course of the detailed hearing of this notice of motion.

The learned Counsel for the defendants submitted that this Hon''ble Court has no jurisdiction to entertain the suit itself and the issue of jurisdiction must be tried as a preliminary issue here and now in view of the mandatory provisions of law contained in Section 9-A of the CPC incorporated in the Code by the Maharashtra Amendment to the said provisions. The learned Counsel for the defendants submitted that the defendants are in a position to demonstrate to the satisfaction of the Court on the basis of documentary evidence in their possession that the defendants are the tenants of the suit flats since several years. It is well settled law that the jurisdiction of the Court is to be determined on the basis of averments made in the plaint. In the plaint, the cause of action is formulated on the footing of an action in trespass. If the material averments in the plaint are not proved by the plaintiffs at the trial of the suit, the suit shall be liable to be dismissed on merits. The jurisdiction of the Court to entertain the suit is not to be determined with reference to the defence plea. It is, therefore, Irrelevant to consider the defence plea for purpose of deciding the jurisdiction of the Court to entertain the suit at the threshold. Since there is no averment in respect of relationship of landlord and tenant between the parties in respect of the suit flats in the plaint, Section 28 of the Bombay Rent Act 1947 is not attracted. I have, therefore, no hesitation in rejecting this submission of the learned Counsel for the defendants.

The learned Counsel for the defendants submitted that the present notice of motion is barred on principles analogues to res judicata. The learned Counsel also submitted that this notice of motion is not maintainable in view of the order passed by the Hon''ble Division Bench of this Court on 4th July, 1994 and in view of the Order passed by the Hon''ble Division Bench of this Court in Review Petition No. 7 of 1995. The learned Counsel for the defendants submitted that the plaintiffs had also moved the Court Receiver to make a report to this Court on similar grounds for direction of the Court to take physical possession of the suit flat and the reports made by the Court Receiver in this behalf on 19th January, 1995 and 10th April, 1995 were disposed of by Rane, J. by his Order dated 26th July, 1995. In view of the stay of ex parte Order dated 24th October, 1994, passed by A.V. Savant, J. by his further Order passed on 26th October, 1994 and in view of the pendency of this notice of motion, the learned Judge did not pass any Order on the Court Receiver''s reports referred to herein above. The Order passed by the learned Judge on the Receiver''s report reads as under:

In view of the stay granted by the Court, no Order on the Receiver''s report save and except prayer for cost is granted.

I have, therefore, no hesitation in rejecting this submission of the learned Counsel for the defendants as well. It is, however, axiomatic that no application for same relief would be entertained by the Court in exercise of its judicial discretion unless there is a change of circumstances and the Court is persuaded to pass a further Interim Order in light of change of circumstances and subsequent relevant events. It is not possible to hold that Order dated 4th July, 1994, passed by the Hon''ble Division Bench of this Court was a consent order. The said order was order in terms of minutes and the present notice of motion is, therefore, maintainable in law. It is for the plaintiffs to satisfy the Court that there has been a significant change of circumstance and the Court should exercise its judicial discretion in favour of the plaintiffs as prayed for. I see no technical difficulty in entertaining this notice of motion and to consider the merits of this application.

The learned Counsel for the defendants is right to a limited extent when he states that even on 4th July, 1994, the office of the Consulate General of Iraq at Bombay, was not functioning as obvious from the report dated 20th June, 1994 submitted by the Court Receiver to the Hon''ble Division Bench. The learned Counsel for the plaintiff has pointed out that after 4th July, 1994, the Embassy of Iraq has been attempting to get permission from the Government of India to reopen the office of Consulate General at Bombay but no such permission has been granted by the Government of India though considerable time has already gone by. The learned Counsel for the plaintiffs has relied upon not merely the letters dated 6th February, 1995 and 17th February, 1995 addressed by the Government of India to the plaintiff No. 1, copies whereof are annexed to the affidavit dated 21st June, 1995, but has also relied on the latest letter dated 26th July, 1995, addressed by the Government of India to plaintiff No. 1. It appears that even after expiry of one year from June, 1994, i.e. July 1995, the Government of India chooses to inform the plaintiff No. 1 that no permission has been granted for reopening of the Iraq Consulate General at Bombay after its closure during the year 1994.

I am not prepared to attach any weightage to the fax message dated 15th December, 1995.

The question which is required to be asked is as to whether the plaintiffs are entitled to move this Court for a direction to the Court Receiver to take physical possession of the suit premises and hand over the same to the plaintiffs or to some third party as agent of the Receiver. In my opinion, the plaintiffs are entitled to move the Court. During the course of the hearing I did enquire from the learned Counsel for the plaintiffs as to whether the plaintiffs were at this stage willing to give up their monetary claim if the defendants handed over vacant possession of the suit flat to the plaintiffs. Shri Nari H. Gurusahani, the learned Counsel for the plaintiffs after taking instructions made a solemn statement at the bar on behalf of the plaintiffs that the plaintiffs were so willing. It appears that the defendants are now not willing. I leave it at that.

After taking an overall view of the matter, I have reached the conclusion that it is just and convenient that the Court Receiver, High Court, Bombay, be directed to take physical possession of the suit flat. In my opinion there is a significant change of circumstances as suit flats are not being used for purpose of office of the Consulate as done here to before.

Ad interim Order passed by A.V. Savant, J. on 24th October, 1994 granting Ad interim Relief in terms of prayer (c) of the notice of motion is confirmed. Ad interim Stay granted by A.V. Savant, J. in respect of the said Order on 26th October, 1994 is vacated with immediate effect. Directions on other prayers of the notice of motion are reserved. Let the Court Receiver take physical possession of the suit flat first and make a report to this Court. Notice of Motion No. 1766 of 1995 does not survive in view of the prayer (a) of the notice of motion No. 2738 of 1994 having been confirmed by the Court on merits after hearing both sides.

At this stage the learned Counsel for the defendants makes an application to the Court that the operation of the Order passed by this Court may be stayed for a period of eight weeks from today. Shri Nari H. Gurusahani the learned Counsel for the plaintiffs agrees. Operation of the Order passed by the Court today is stayed for a period of eight weeks from today in order to enable the defendants to move the Hon''ble Appellate Court if they so desire.

Notice of motion No. 2738 of 1994 insofar as other prayers of the motion are concerned shall be placed on board after expiry of 12 weeks from today, unless the operation of the Order passed by this Court is stayed by the Appellate Court and further proceeding herein are stayed. The Court Receiver is expected to make his report to this Court after further directions within four weeks after expiry of above referred period of 8 weeks. In such an eventuality, the Court Receiver''s report shall also be considered by the Court along with other prayers in the notice of motion herein.

Issue of certified copy expedited.