REHMAT ALI BAIG Vs. MINOCHER M DEBOO

JUDGEMENT

(1.) This Appeal has been filed against the decision of the Learned Single Judge dated November 20, 2008 in Chamber Summons No. 1375/2008 in Suit No. 857/2005. There is delay of seven days in filing the present Appeal. For the reasons mentioned in the affidavit in support of the Notice of Motion being sufficient cause, in the interest of justice, Notice of Motion is made absolute in terms of prayer Clause (a). The Appeal is heard forthwith by consent of Counsel appearing for the contesting parties namely the Appellant (original defendant No. 1) and Respondent No. 1 (original plaintiff).

(2.) Briefly stated, the Plaintiff filed Suit for declaration that he is entitled to 26% share in the suit property consisting of one room ad-measuring about 200 sq. feet situated on the first floor of the front side of the building known as Mazda Mansion situated at Trinity Street, S.S. Gaekwad Road, Dhobitalao, Mumbai 400 002. He further prayed for direction against Defendant No. 1 to pay sum of Rs. 4,05,600/-being the Plaintiffs proportionate share in the suit premises as per the Fair Market Value thereof. The Plaintiff also prayed for direction against Defendant No. 1 to pay to the co-owner mesne profits at the rate of Rs. 50/-per sq. feet per month on 200 sq. feet or at such rate as the Court may deem fit from 15/1/2004 till the date of filing of the Suit amounting to Rs. 1,40,000/-and thereafter continue to deposit the amount of Rs. 10,000/-as mesne profit every month till the final disposal of the Suit. In the said Suit Notice of Motion No. 894/2005 was filed by the Plaintiff, which came up for hearing on 13th October, 2006 when the Learned Single Judge of this Court passed the following order:

(3.) As a consequence, Smt. Justice K. K. Baam (retired) entered upon the Arbitration proceedings as the sole Arbitrator. Subsequently, the Plaintiff took out Notice of Motion No. 3052/2007 for the following reliefs: