Khamgaon Rashtriya Shikshan ... vs Tilak Rashtriya Vidyalaya ...
2016 Latest Caselaw 6683 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 6654 OF 2015




                                                                   
    Khamgaon Rashtriya Shikshan 
    Prasarak Mandal, Khamgaon, a 
    public trust duly registered under
    the Maharashtra Public Trust Act,




                                                                  
    1950, through its Secretary Sunil
    Gulabchand Saraf, Address : Madan
    Plot, Civil Lines, Khamgaon, Tahsil
    Khamgaon, District Buldana.                                       ... PETITIONER




                                               
                                               VERSUS
                             
    Tilak Rashtriya Vidyalaya Khamgaon, 
    a public trust duly registered under the 
    Maharashtra Public Trust Act, 1950, 
                            
    through its Secretary Sudhakarrao 
    Ramchandra Ajbe, Address : Tilak
    Tashtriya Vidyalaya, Khamgaon, 
    Tahsil - District Buldana.                                      ... RESPONDENT
      

                                         ....
    Shri H.R. Gadhia, Advocate for the petitioner.
   



    Shri A.V. Bhide, Advocate for the respondent.
                                         ....


                                            CORAM : PRASANNA B.VARALE, J.

DATED : 25TH NOVEMBER, 2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally with

consent of the learned Counsel appearing on behalf of the respective

parties. Shri A.V. Bhide, the learned Counsel waives notice on behalf of the

respondent.

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2. By way of present petition, the petitioner challenges the order

dated 23.09.2015 passed by the learned Civil Judge, Junior Division,

Khamgaon. The application filed by the petitioner for appointment of

Court Commissioner was rejected. The petitioner was occupying the

premises let out to him. A suit was filed by the petitioner seeking

declaration and injunction. The respondent/public trust contested the

suit by filing Written Statement has also submitted a counter claim. The

suit was dismissed and the counter claim was decreed. Though an appeal

was preferred against the judgment, no interim orders in favour of the

petitioner was passed. The respondent filed the execution proceedings.

An application was filed at the instance of the petitioner objecting the

execution raising a ground of the description of the property in the decree

and the description in the application do not match. The said application

was rejected. Being aggrieved by the order, the petitioner filed Civil

Revision Application before this Court. This Civil Revision Application was

also dismissed. The possession warrant was issued by the executing Court.

It seems that there was a bailiff report expressing the inability to execute

the possession warrant. Another application was filed by the respondent

for issuing fresh warrant of possession. Though the application was

opposed by the petitioner, vide order dated 13.11.2013, the bailiff was

directed to execute the decree. It was the grievance of the petitioner that

the bailiff executed the decree illegally and trespass the limit set by the

order dated 13.11.2013. The petitioner approached the learned District

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Judge raising the grievance. The learned District Judge on the application

by the petitioner in respect of the execution through the bailiff raising

certain allegations, held that the aspect of the bailiff report is a judicial

aspect and it cannot be taken in the administration capacity. The

petitioner submitted an application for appointment of Court

Commissioner to inspect the disputed property. It was the submission of

the petitioner in the application that the Decree Holder misled the Court

and it would be necessary to appoint Court Commissioner for his local

inspection for fair and final decision in the matter. The learned Court

below found no favour with the applicant and the application was rejected.

3. Shri Gadhia, the learned Counsel for the petitioner vehemently

submits that there are two contrary bailiff reports and there is a difference

in description of the property. By inviting my attention to copy of rough

sketch placed on record at "Annexure-K", the learned Counsel submits

that the said property was consisting of earlier four constructed rooms, a

playground and six rooms and a garage. He further submits that during

the pendency of the proceedings, these four rooms were converted into six

rooms. It is further the submission of the leaned Counsel for the petitioner

that the respondent was entitled only for the possession of six rooms and

the open space adjacent to nullah but was not entitled for the possession

of the six rooms and garage. He also submits that the first bailiff report i.e.

placed on record at "Annexure-F" refers to the objection raised by the

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petitioner. Shri Gadhia, the learned Counsel submits that the said

document clearly shows that the petitioner raised a strong objection for

the execution. The learned Counsel then submits that the copy of the

second bailiff report is placed on record at "Annexure-H" cannot be

accepted. The petitioner was not present at the relevant time. He submits

that it was the specific contention of the petitioner that the bailiff acted

under the dictates of the respondent and submitted untrue report. It is

further the submission of Shri Gadhia, the learned Counsel for the

petitioner that as there was a change in the description of the property as

there were two bailiff reports, the petitioner had approached the learned

Civil Judge, Junior Division, Khamgaon for appointment of the

Commissioner. It is submitted that the Commissioner could have

inspected the spot and submitted the report and the same would have

helped the Court to decide the controversy in effective manner. The

exercise of the appointment of Court Commissioner and seeking the report

from the Commissioner would not have caused any prejudice to the

respondent. Thus, it is the submission of Shri Gadhia that the learned Civil

Judge, Junior Division, Khamgaon erroneously rejected the application

filed by the petitioner seeking appointment of the Commissioner.

4. Per contra, Shri Bhide, the learned Counsel for the respondent

submits that the petitioner is not approaching to this Court with a bona

fide intention but the only intention of the petitioner is to prolong the

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proceedings and create hurdles in the way of respondent by filing the

applications one after another. The learned Counsel vehemently submits

that the ground of mis-description of the property is set at rest under the

order of this Court dated 14th June, 2010 in Civil Revision Application No.

41 of 2009. Shri Bhide, the learned Counsel for the respondent further

submits that the objection raised by the petitioner in respect of the second

bailiff report that the petitioner was not present at the time of the

execution, holds no water. He also submits that the second bailiff report in

clear and unambiguous terms, reveals the presence of the petitioner on the

spot. The learned Counsel, therefore, submits that no error is committed

by the learned Judge in rejecting the application.

5. On the backdrop of the rival contention of the parties and the

learned Counsel for the respective parties and on perusal of the material

placed on record, I am of the opinion that the petition is devoid of any

merits. The material placed on record clearly shows that time and again,

the petitioner made attempts before the Court below as well as before this

Court raising a ground of mis-description of the property and all his

attempts were failed. Though the learned Counsel for the petitioner by

inviting my attention to the rough sketch placed on record, makes an

attempt to submit that the suit property was inclusive of the earlier four

rooms subsequently converted into six rooms and a playground adjacent

to nullah and not inclusive of six rooms and garage at one end of the

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playground. There is absolutely no material on record to show that there

was such a counter submission in respect of this position in the

proceedings. Insofar as the ground of mis-description is concerned, Shri

Bhide, the learned Counsel for the respondent was justified in submitting

that this ground was dealt with by this Court in the judgment and order

dated 14th June, 2010 in Civil Revision Application No. 41 of 2009. It would

be useful to refer to the observations of this Court in the said order. The

same reads thus :-

"The plaintiff in original proceedings canvassed

that the warrant of possession and property described in the counter claim above, does not match each other and consequently, the directions to break open lock and taking

possession of the property in response to decree in the counter claim could not be issued.

The learned Executing Court, on perusal of the possession warrant and description given in the counter

claim found that both details matched to each other and there is no mis-description of the property. The learned Judge consequently, dismissed the application raised by the J.D. (original plaintiff) dated 19.3.2009. the order is

questioned by J.D.

With the assistance of learned counsel perused the description of the property in paragraph 19 in the counter claim and as referred in paragraph 10 of the execution proceedings, I find, in all material particulars, the details are

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matchin. The additional details were also furnished as to

what was the nature of occupation in the room including one room was occupied by Principal's daughter other was used

for college rooms including tin sheds, outhouse, W.C. Bathroom, toilet and students hostel, other construction and the playground. These details of the user of the property, are

in no sense, will change the description, with its measurement as incorporated in paragraph 10 of the possession warrant moved by the landlord, to match to

measurement details in paragraph 19 of the counter claim.

I have asked learned counsel whether there was any room between landlord and tenant so as to cause any

mis-description or prejudice to the J.D. in understanding the nature of the execution. I can see that ther was no such other contractual arrangement between the landlord or tenant

(original plaintiff and original defendant)."

6. This Court, in clear and unambiguous terms, ultimately

rejected the application. Insofar as the ground raised by the petitioner in

respect of the second bailiff report is concerned, the petitioner was not

present at the relevant time, it would be useful to refer to the said bailiff

report dated 09.12.2013. It is stated in the report that when the bailiff

under the orders of the Court attended the spot and made enquiry with the

Headmaster in respect of the petitioner-Secretary, it was informed to him

through the Headmaster of the school by establishing contact with the

petitioner that the petitioner was out of station and till evening he was not

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in a position to return to Khamgaon. When such fact was being endorsed,

the Headmaster again established contact with the Secretary. The

petitioner-Secretary informed the Headmaster that he would return back

within one hour and he further informed to ask the bailiff to wait for some

period. Accordingly, the bailiff was present on the spot and on arrival of

the petitioner, he started proceedings. It is further stated in the report that

the petitioner was informed about the execution warrant and was

requested to open lock of the rooms and remove the material kept in the

room in presence of the panchas. The petitioner neither opened the lock

of the rooms nor removed the material kept in the rooms. As such, the

bailiff was required to break open the locks and remove the material kept

in the rooms and was required to handover the possession. Perusal of the

panchnama further shows that the lock of the room was broke open and

further the material kept in that room such as wooden table, wooden

chairs, certain vessels and the bed etc., were removed from the room. The

inventory also refers to the other material material, such as ceiling fan,

table fan, stoves, gas cylinders etc. The documents such as the

panchanamas bear the signatures of the panchas. Thus, on perusal of this

material, the submission of the petitioner that at the relevant time, the

petitioner was not at all present and the action was taken in absence of the

petitioner cannot be accepted. Even the application filed by the petitioner

raising objections as well as raising grievance against the bailiff is rejected

by the learned District by order dated 23.01.2014. The learned Civil Judge,

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Junior Division, Khamgaon, considering all these aspects and also

considering the order passed by this Court in Civil Revision Application,

found no favour with the petitioner/applicant. The learned Judge referred

to the judgment relied upon by the learned Counsel for Decree Holder

wherein it was observed that the Judgment Debtor was making application

after application so as to frustrate the execution of the decree and though

these applications were rejected, the Judgment Debtor again submitted an

application on the ground that the suit premises was not in existence. The

learned Civil Judge, Junior Division, Khamgaon relying on the judgment of

this Court, found that the objections raised by the petitioner were having

no substance and rejected the application. In my opinion, no error is

committed by the learned Civil Judge, Junior Division, Khamgaon. The

petition thus being devoid of merit deserves to be dismissed.

7. In the result, the petition is dismissed. Rule is discharged.

JUDGE

*rrg.