DARIAS BUILDERS PVT LIMITED Vs. GILES FRANCIS MENDES

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 4.3.1997 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.147/1996. That appeal was filed by the present respondent No.1 Giles Francis Mendes challenging the order dated 22.7.1996 passed by the Small Causes Court at Bombay in Injunction Notice No.856/1996 and Injunction Notice No.904/1996 in R.A.Declaratory Suit Stamp No.586/1996. That declaratory suit was filed by respondent No.1 claiming therein that one Joseph Wilfred Dias was owner of the structure with land known as Alyce Villa, Plot No.57, C.T.S. No.F/945, 5th Road, T.P.S. III, Almeida Park, Bandra, Bombay and that the property was occupied by the owner and his wife Alyce Dias and 3 tenants. The original owner died on 18.10.1988 leaving behind him his widow Alyce Dias. There was an agreement entered into between Smt.Alyce Dias on the one hand and defendant No.3 M/s Darisa Builders Pvt. Ltd., on the other, dated 23.11.1992, whereby Smt.Alyce Dias agreed to sell the property to defendant No.3 to develop the same. The agreement was that the builder will pull down the existing structure and construct a building on the land and after completion of the construction a flat admeasuring 700 square feet would be given to Smt.Alyce Dias. It was the case of the plaintiff that by reason of an agreement between himself and Smt.Alyce Dias, he was to get tenancy of the flat to be allotted to Smt. Alyce Dias by the builder. He claimed in the suit that Alyce Dias handed over to him possession of a flat on the first floor of the new building on 20.9.1995 and that he is possession of that flat since that date. It is further revealed that Alyce Dias expired in December 1995. By the injunction notice, the plaintiff Giles Mendes was claiming an injunction restraining the builder, the present petitioner, from interfering with his possession of the flat which according to him he was occupying in the new building constructed by the builder. Initially it appears that an ad-interim order was made in favour of the plaintiff. However, after hearing all the parties concerned, by order dated 22.7.1996, the application for injunction was rejected by the trial court. In the appeal filed by respondent No.1, by order dated 12.2.1997, the appellate court directed the trial court to give a finding on the point as to whether the plaintiff entered into possession of the suit premises under the guise of the injunction order dated 25.4.1996. It was further directed that if the answer to the point is in the affirmative, the trial court should also give a finding whether defendant No.3 would be entitled to the restoration of the possession. The point was answered by the trial court by its order dated 19.2.1997. The trial court found that the plaintiff entered possession of the flat in question under the guise of the injunction order dated 25.4.1996. It was further found that the builder would be entitled to restoration of possession of the flat concerned, Thereafter the appeal was decided by order dated 4.3.1997. The appellate court, however, allowed the appeal, set aside the order passed by the trial court and issued an injunction restraining defendant No.3 from dispossessing the plaintiff from the suit premises without due process of law. It is this order of the appellate court which is challenged in the present petition.

(2.) LEARNED counsel for the petitioner urged before me that before claiming a discretionary order of injunction from the court protecting his possession of the suit premises, the plaintiff was under a duty to point out to the court that he entered into possession of the suit premises by a valid and legal method. In the submission of the learned counsel, throughout it was the case of the builder that in September 1995, when the plaintiff is alleged to have secured possession of the flat, the construction of the building was not completed and therefore there was no question of the builder handing over possession of the flat concerned either to Alyce Dias or to the plaintiff. In the submission of the learned counsel, so long as the plaintiff is not in a position to point out that he entered into possession of the suit premises under a valid document, he is not entitled to have a discretionary order of injunction passed in his favour. Learned counsel further urged that there is no document filed on record, executed by the builder either in favour of Alyce Dias or the plaintiff handing over possession of the newly constructed suit flat. The learned counsel for the respondent No.1-plaintiff, on the other hand, submitted that he got possession of the suit flat from Alyce Dias in September 1995. He submitted that before her death, Alyce Dias had addressed a complaint to the police authorities wherein she had stated that she had received possession of the flat. Learned counsel for respondent No.1 candidly stated before me that there is no document on record produced by him or anybody else which will indicate that at any point of time after the building construction was completed, possession of the flat in question was handed over by the builder to the plaintiff. However, in the submission of the learned counsel, as in terms of the agreement entered into between himself and Alyce Dias, he is entitled to possession of the flat, his possession of the flat cannot be disturbed.

(3.) IN the result, therefore, the petition succeeds and is allowed. Rule made absolute in terms of prayer clause (a) with no order as to costs.