KHOTANI CONSTRUCTION CO AND MARCELINE LOUIS MISQUITTA AND VIRDI BUILDERS PRIVATE LIMITED Vs. ANWAR HAJI ALIMOHAMMED CASSUM

JUDGEMENT

(1.) These three Appeals from Order arise out of the judgement and order passed by the Bombay City Civil Court in the Notice of Motion taken out by the plaintiff in S.C. Suit No. 6042 of 1983 for the various reliefs against the various defendants.

(2.) Said Suit No. 6042 of 1982 has been filed by the plaintiffs, who are the main contesting respondents in all the three appeals. Initially, the suit was filed only against two defendants, viz., Smt. Marceline Louis Misquitta, widow of Shri Louis Francis Misquitta, as defendant No.1 and the Court Receiver, who had been appointed by this Court as the Receiver of the property which was the subject matter of the Administration Suit No. 3115 of 1947 pending on the Original Side of this Court, as defendant No. 2. The said suit was filed by the plaintiffs for a declaration that certain orders which came to be fraudulently obtained by one Misquitta, the husband of defendant No.1 in the suit, from the tenancy Courts, were illegal, null and void and for a further declaration the defendant No.1 had no right, title and interest in the suit property which consists of 15 lands situate at village Dahisar within the limits of the Bombay Municipal Corporation, for a direction that possession of suit land should be restored for the Court Receiver, defendant No. 2 and for injunction restraining the first defendant, her servants and Agents from constructing upon or parting with the possession of the suit lands. Along with the suit, a Notice of Motion was taken out by the plaintiffs for temporary injunction pending the suit and an order of ex-parte injunction in terms of the Notice of Motion was passed by the trial Court. When the Notice of Motion and the ex-parte injunction was served upon defendant No. 1 she appeared in the Court and contended that she had already entered into development agreements in respect of the various lands with defendant No. 3 to 6 and had received consideration in that behalf. She went to the extent of contending that though they were only agreements of sale, at their highest the title to the suit lands already stood transferred to the various intending purchasers of the lands and her contention was that the construction on the lands were being made by defendant Nos. 3 to 6 on the basis of the said development agreements. It was after the receipt of this information that the plaintiff made the requisite application to the Court for impleading defendant Nos. 3 to 6 in the suit and order in that behalf was accordingly passed by the Court and defendant Nos. 3 to 6 came to be impleaded in the suit. They opposed the said Notice of Motion for injunction and at the request defendant No. 1, by its order dated 29th March, 1984, the injunction granted by the Court giving a blanket prohibition of all constructions on all the suit lands was slightly modified by the trial Court and defendant No. 4 as such was allowed to complete, but only to complete, the construction on the land Survey No. 56/2. The injunction prohibiting the defendant from parting with possession of the construction and of the suit land, however, continued. So far as defendant Nos. 3, 5 and 6 were concerned, the ex-parte injunction against them, as granted earlier, continued. The Notice of Motion was heard thereafter. However, after hearing all the defendants Nos. 1 and 3 to 6, at length. The learned Judge negatived all the contentions raised by the said contesting defendants for opposing the prayer of temporary injunction and by this order dated 4th December 1984 he confirmed the ex-parte injunction and directed the same to continue till the hearing and disposal of the suit. A slight modification was, however, made by him in favour of defendant No. 4 directing him to submit the list of the flat owners to whom they had already sold the flats, together with the particulars as regards the price etc. agreed upon and the amount received towards the price. Two weeks, time was given to defendant No. 4 in that behalf for filing the list. A.O. No. 162 of 1985 is filed by defendant No. 1 against the said order. A.O. No. 163 of 1985 is filed by original defendant Nos. 3, 5 and 6 against the said order in the Notice of Motion whereas A.O. No. 161 of 1985 is filed by defendant No. 4 in the said suit against the said order. All the three appeals are being disposed of by this common judgement.

(3.) Let me state here very briefly the facts out of which the suit and the Notice of Motion arise. I may state here that most of the facts are such as are admitted at least at this stage of the hearing of these appeals. The facts which are disputed will be examined at the time of the examination of the arguments advanced in relation with them. For the sake of convenience the parties will be referred to in the same way as they were referred to in the trial Court, that is to say as plaintiffs and defendants Nos. 1, 2 and 3 etc.