Case Note & Summary
The judgment arises from an appeal before the Bombay High Court against an interim order passed by a learned Single Judge in a notice of motion in a suit concerning a property at Saint John Baptist Road, Bandra (West), Mumbai. The appellant, a company that purchased the suit property by a deed of conveyance dated 17 April 2010, challenged the order dated 23 October 2018 that restrained it from acting upon a City Civil Court decree dated 29 June 1988, an agreement dated 9 June 1989, a supplemental agreement dated 28 March 1996, and the deed of conveyance, and from developing, constructing, alienating, encumbering, or creating third-party rights in respect of the land admeasuring 1774.25 sq.mtrs. The original plaintiffs, legal heirs of Dr. Cecil D’Monte, filed Suit No.2335 of 2012 claiming ownership of the suit property through inheritance. They alleged that Dr. Cecil D’Monte acquired the property under a registered Deed of Partition dated 6 June 1947. The suit sought a declaration that the decree dated 29 June 1988 passed by the Bombay City Civil Court in favour of Saint Peter’s Church, Bandra, declaring it owner by adverse possession, was null and void, and sought injunction. The church had earlier filed Suit No.239 of 1988 seeking declaration of ownership by adverse possession, in which an advocate appeared for Dr. Cecil D’Monte, waived service, and did not contest. The decree was passed on 29 June 1988. Thereafter, the church issued public notices, entered into agreements for development, obtained Charity Commissioner sanction under Section 36 of the Bombay Public Trust Act, and ultimately conveyed the property to the appellant on 17 April 2010 for consideration of Rs.10,30,00,000/-. The plaintiffs filed the suit on 13 September 2012. In the notice of motion, the learned Single Judge granted the impugned injunction. The appellant contended that the interim order caused absolute prejudice and preferred the appeal. By consent of parties, the appeal was taken up for final hearing at the admission stage. The court reserved judgment on 20 February 2023 and pronounced on 8 March 2023. The available text does not include the court's final reasoning or decision.
Issue of Consideration
Whether the learned Single Judge was justified in restraining the appellant from acting upon the decree dated 29 June 1988, the agreements, and the deed of conveyance, and from developing or alienating the suit property pending final disposal of the suit.
Law Points
- Interim injunction
- adverse possession
- declaration of nullity of decree
- development rights
- public trust property
- appeal against order causing prejudice
Case Details
2023 LawText (BOM) (03) 51
Appeal (L) No. 556 of 2018 in Notice of Motion No. 2250 of 2012 in Suit No. 2335 of 2012
K.R. Shriram, Rajesh S. Patil
Mr. Arif Bookwala, Senior Advocate; Mr. Ashraf Ahmed Shaikh; Ms. Mahek Bookwala; Ms. Chaitali Kamble; Mr. Rafiq Dada, Senior Advocate; Mr. Vishal Kanade; Mr. Mukul Taly; Ms. Shamima Taly; Mr. Aziz Mohd; Ms. Sayali Gharpure; Adv. Sehyr Taly; Mr. Aspi Chinoy, Senior Advocate; Dr. Rohini Pandit; Ms. Esha Solanki
KML Estates Private Limited formerly known as KML Foods Private Ltd.
1A. Zarine D’Monte; 1B. Samir D’Monte; 2A. Sunita Cecile D’Monte; 3. Ena D’Monte (since deceased and deleted); 4. Saint Peter’s Church, Bandra; 5. Dr. Frazer Mascarenhas S.J.; 6. Norman J. D’Monte; 7. M/s. Vinky Developers; 8. Vandana Punwani; 9. Ramal Advani
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Nature of Litigation
Appeal against an order of the learned Single Judge restraining appellant from acting upon certain decree, agreements, and deed of conveyance, and from developing or alienating the suit property.
Remedy Sought
Appellant sought to set aside the order dated 23 October 2018 passed in Notice of Motion No.2250 of 2012.
Filing Reason
The interim order was causing absolute prejudice to appellant.
Previous Decisions
Learned Single Judge passed order dated 23 October 2018 in Notice of Motion No.2250 of 2012 restraining appellant from acting upon the decree dated 29 June 1988 and related documents.
Issues
Whether the learned Single Judge was justified in restraining the appellant from acting upon the decree dated 29 June 1988, the agreements, and the deed of conveyance, and from developing or alienating the suit property pending final disposal of the suit.
Submissions/Arguments
Appellant submitted that the interim order is causing absolute prejudice and hence the appeal has been preferred.
Judgment Excerpts
By consent, it was decided to take up the appeal for final hearing at the admission stage itself.
The interim order is basically causing absolute prejudice to appellant and hence this appeal has been preferred.
On 13th September 2012, Suit No.2335 of 2012 was filed by plaintiffs seeking, inter alia, a declaration that the decree dated 29th June 1988 passed by the Bombay City Civil Court be declared as null and void and for injunction.
Procedural History
Original plaintiffs filed Suit No.2335 of 2012 on 13 September 2012 seeking declaration that City Civil Court decree dated 29 June 1988 is null and void and injunction. Notice of Motion No.2250 of 2012 was lodged on 24 September 2012. Learned Single Judge passed order dated 23 October 2018 restraining appellant. Appellant filed Appeal (L) No.556 of 2018. By consent, appeal taken up for final hearing at admission stage. Reserved on 20 February 2023 and pronounced on 8 March 2023.
Acts & Sections
- Companies Act, 1956:
- Bombay Public Trust Act, 1950: Section 36
