Bombay High Court
Smt. Rajeshree Pravin Sonawane vs Shri Arvind Kumar Fatechand on 10 December, 2013
Bench: Anoop V. Mohta
This Order is modified/corrected by Speaking to Minutes Order
1 AO.850-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 850 OF 2013
WITH
CIVIL APPLICATION NO.1059 OF 2013
1.Smt. Rajeshree Pravin Sonawane
Age 36 years, Occu-Service
2.Pravin Sonawane
Age 38 years, Occ-Contractor
3.Asaram Sonawane
Age 65 years, Occu-Retired
Petitioner Nos.1 to 3 are residing
at B-25, Shree Shrishti, Mith
Bandar Road, Chendani,
Thane (E). ...Appellants.
(Ori. Defendants)
Vs.
1.Shri Arvind Kumar Fatechand
Manghiramalani
Age-Adult, Occu-Advocate
R/at 3/7-B, Satya, Jivan Society,
L.B.S. Marg, Kurla (W),
Mumbai-70. ..Respondent.
(Ori. Plaintiff )
---
Mr. Sandesh D. Patil, for the Appellants.
Mr. K.T. Kukreja, i/b Mr. Devang H. shah for Respondent.
---
1 / 11
::: Downloaded on - 23/12/2013 20:33:36 :::
This Order is modified/corrected by Speaking to Minutes Order
2 AO.850-2013
Coram : Anoop V. Mohta, J.
Closed for Judgment On : 20 November 2013.
Judgment Pronounced On: 10 December 2013.
JUDGMENT:
1 The Appellants-Original Defendants have challenged
order dated 28 March 2013 passed by the learned Civil Judge,
Senior Division, Thane. The operative part of order is as under:
"1.
Application is allowed.
2. Plaintiff is hereby appointed as a receiver in respect
of suit property.
3. Defendant No.1 is directed to hand over peaceful
and vacant possession of the suit flat to him within one
month.
4. Appointed Court receiver is hereby directed to take
possession of the suit property and maintain it property
and preserve till the disposal of the suit. He is further
directed not to create any third party interests in respect
of suit property till disposal of the suit.
5. Plaintiff is hereby directed to act as agent of the
Court receiver and preserve the property.
6. Cost in cause."
2 The Respondent-Original Plaintiff has filed a suit under
Section 6 of Specific Relief Act, 1963 for restoration of possession
2 / 11
This Order is modified/corrected by Speaking to Minutes Order
3 AO.850-2013
and for the damages on 2.8.2010. The Plaintiff-Respondent's case is
that on 22.2.2010, someone broke open the lock and entered the flat
and took away the Plaintiff's belongings and therefore the suit.
3 The Appellants appeared and filed a written statement-
cum-counter claim. The Appellants contended that they are residing
in the premises since 20.11.2005, hence the question of
dispossession of the Plaintiff on 22.2.2010 did not arise. They also
expressed their readiness and willingness to perform their part of the
contract on the basis of Agreement dated 30.7.2005. There are other
various issues need to be considered not only of possession.
4 The Respondent-Plaintiff filed an Application under
Order 39 Rule 1 and 2 of Code of Civil Procedure (CPC) for an
injunction and interim relief in July 2010. The same was resisted by
a reply. The learned Judge, however, by impugned order dated 28
March 2013 granted the reliefs so prayed by practically after more
than two and half years of filing of Application and though the suit
is ready and ripen for final hearing/trial.
3 / 11
This Order is modified/corrected by Speaking to Minutes Order
4 AO.850-2013
5 The learned Counsel appearing for the Respondent-
Plaintiff raised an objection about the maintainability of this Appeal
from Order itself. He relied upon some judgments and has filed a
written submission also.
1) Kanai Lal Ghose Vs. Jatindra Nath Chandra'1
2) Meghji Jetha Shah Vs. Kalyanji Nanji Shah2
3) Nazimuddin M. Sayed Vs. Sourabha Co-operative
Housing Society Ltd3
4) Hawabai Vs. Abdul Sattar Suleman Haji Ahmed
Oomer & Anr.4
5) Shammi R. Chanana Vs. Kishore T. Idnani & Ors5
6) Chandra Kishore Jha Vs. Mahavir Prasad & Ors6
7) Sanjay Kumar Pandey & Ors. Vs. Gulbahar Sheikh &
Ors7
8) Anwar Faramosh Khan Vs. Mahendrakumar
1 AIR 1918 Calcutta 925 (DB)
2 AIR 1987 Bombay 273
3 N/M 2520-1994 in Suit 4139/1994 dt.10.10.1994
4 1995 AI HC 3062
5 NM.../1997 in Suit 2809/1997 dt.14.8.1997.
6 (1999) 8 SCC 266
7 AIR 2004 SC 3354
4 / 11
This Order is modified/corrected by Speaking to Minutes Order
5 AO.850-2013
Jugalkishore Gupta8
9) Chetan Bhanuprasad Desai Vs. Rasiklal R. Zaveri9
10) Mr. Gaghunath S. Singate Vs. Jayant Gajanan
Pathak & Ors.10
The judgments cited and relied upon by the other side are
as under:
1) Super Candles & Anr Vs. Mahabir Candle Works &
Anr11
2) Vinita M. Khanolkar Vs. Pragna M. Pai & Ors.12
3) Jain Spinners Ltd. Vs. Collector of Central Excise13
4) Metro Marins & Anr. Vs. Bonus Watch Co(P) Ltd. &
Ors.14
5) Mehul Mahendra Thakkar Vs. Meena Mehul Thakkar15
6 Admittedly, the application under Order 39 Rule 1 and 2
of CPC once filed and decided, the remedy under the law to
8 2004(3) Mh. L.J.
9 2004(2) ALL MR 582
1 0 2011 (6) ALL MR 756
1 1 AIR 1997 Gau 57
1 2 (1998) 1 SCC 500
1 3 (1998) 1 SCC 502
1 4 (2004) 7 SCC 478
1 5 (2009) 14 SCC 48
5 / 11
This Order is modified/corrected by Speaking to Minutes Order
6 AO.850-2013
challenge the same is by invoking Order 43 Rule 1 of CPC. The
submission that, in view of Section 6 of the Specific Relief Act the
Appeal is not maintainable, is unacceptable for simple reason that
the suit is not yet finally decided nor there is decree and/or final
order is passed.
7 Section 6 of the Specific Relief Act is relevant and thus
reproduced it as under:
"6 Suit by person dispossessed of immovable property-
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law,
he or any person claiming through him may, by suit,
recover possession thereof, notwithstanding any other
title that may be set up in such suit.
(2) No suit under this section shall be bought-
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed
in any suit instituted under this section, nor shall any
review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from
suing to establish his title to such property and to recover
possession thereof."
6 / 11
This Order is modified/corrected by Speaking to Minutes Order
7 AO.850-2013
8 We are not concerned with the final decree and/or order
passed under Section 6 of Specific Relief Act. We are concerned with
the impugned order passed by the learned Judge under Order 39
Rule 1 and 2 of CPC. Therefore, the submission so made and citation
so read and referred raising preliminary issue of maintainability of
the Appeal from Order, in the present matter is rejected, as
unsustainable. The present Appeal is maintainable.
9 The basic principle to pass a decree under Section 6 of
Specific Relief Act and the maintainability of the Appeal thereafter, is
settled position of law. After due trial in such suit, the Court if case is
made out, requires to pass even mandatory order of restoring the
possession through the Court Receiver and/or otherwise. The
learned Judge is empowered to pass appropriate order in the
background of facts and circumstances of the case. The judgments so
cited are therefore distinguishable on facts itself. There was no such
case and situation discussed and decided.
7 / 11
This Order is modified/corrected by Speaking to Minutes Order
8 AO.850-2013
10 The summary enquiry in such summary suit and the
bar of no review and/or appeal as specifically provided, which itself
contemplates the final decision under Section 6 of the Act. The
impugned order, as passed under Order 39 Rule 1 and 2 of CPC,
after lapse of more than two and half months, pending Section 6
suit, therefore in my view, cannot be equated with the final decision
contemplated in such summary suit. The court in a given case may
entertain the revision under Section 115 of CPC and adjudicate the
same (of Sanjay Kumar Pandey (supra). The impugned order, even if
in Section 6 suit, still it is not final decree and/or decision in the suit.
The provisions of CPC and the available remedy therefore cannot be
overlooked and/or denied. (Super Candles - Supra).
11 The Apex Court in Vinita M. Khanolkar (supra)
expressed, in spite of provision of Section 6(3) of the Specific Relief
Act that an appeal before a Division Bench against an order passed
by the Single Judge, is maintainable. In the present case, another
factor is a grant of such interim mandatory injunction, pending the
8 / 11
This Order is modified/corrected by Speaking to Minutes Order
9 AO.850-2013
summary suit, after lapse of more than two and half years. Section 6
itself as recorded is a complete code and provides and deals with
every aspect of restoration of possession. Having not passed any
order within six months and/or at least earliest, such mandatory
order therefore, is unsustainable as no case of urgency and/or case is
made out unless the issues are resolved in the main suit itself. The
delay in passing such mandatory order, itself a ground to interfere
with the order, in view of above admitted position on record. No case
of grant of such ad-interim mandatory injunction after such lapse of
time pending such Section 6 suit (Metro Marines- supra).
12 The reasons for delay, even if any, explained, but the fact
of passing of such order even after framing the issues on 22.8.2012
and especially as the burden is upon the Plaintiff that he is in
possession and the Defendants illegally dispossessed him because of
cancellation of agreement dated 30.7.2005 on 25.12.2005. The issue
is also with regard to the ready and willingness to perform part of
the agreement. The impugned order so passed therefore is
unsustainable at this stage of the proceedings. The Court may pass
9 / 11
This Order is modified/corrected by Speaking to Minutes Order
10 AO.850-2013
appropriate order after hearing the main suit itself as the matter is
already ripen for the trial.
13 Resultantly, the following Order:
(a) Appeal from Order is allowed.
(b) Impugned order dated 28 March 2013 is quashed
and set aside.
(c)The Suit is expedited and to be disposed of within
three months.
(d) In the meanwhile, the parties to maintain status-quo
with regard to the possession of the property.
14 Appeal from Order so also the Civil Application are
disposed of. No costs.
(ANOOP V. MOHTA, J.)
10 / 11
This Order is modified/corrected by Speaking to Minutes Order
11 AO.850-2013
11 / 11
