Hirabai H. Pujari And Ors vs Ramchandra Narhari Kawade Decd ...
2021 Latest Caselaw 6027 Bom

                                                      1-ASWPST28377-2019.DOC




 Atul



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION
                WRIT PETITION ST NO. 28377 OF 2019
                                     WITH
          INTERIM APPLICATION ST NO. 95349 OF 2020


 Hirabai H Pujari & Ors                                           ...Petitioners
       Versus
 Ramchanra Narhari Kawade, since deceased                       ...Respondents

through Legal Heirs & Ors

Mr Atharva Dandekar, & Shivraj Patne, for the Petitioners. Mr Mandar Limaye, with Akshay Petkar, Nikhil Sawkar, & Aniket Malu, for Respondents Nos. 1(a), 1(b) and 1(c).

                               CORAM:      G.S. PATEL, J
                               DATED:      5th April 2021
 PC:-

1. This order will dispose of the Writ Petition itself, which has been assigned to this Court. The result is that the Interim Application will not survive since it seeks that a status-quo order of 6th November 2019 in the Writ Petition be vacated.

2. The Writ Petition is directed against an order dated 17th October 2019 refusing to stay execution of a possession decree pending the Judgment Debtors' review application. That review

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application sought a review of a noting made while disposing of the Judgment Debtors' application contending that the possession decree was not executable since the property in question had allegedly been declared a slum under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971.

3. The litigation has a long history. I will try and condense it as much as possible. I have the beneft of list of dates prepared by Mr Limaye, whose principal grievance is that 37 years after the decree his clients, the original Plaintifs have still not obtained possession. He reminds me of the famous line in Mulla's Commentary on the Code of Civil Procedure 1908 that the problems of a Plaintif in India begin after he has obtained a decree.

4. The Respondents to this writ petition are the original plaintifs. They fled Civil Suit No. 1389 of 1978 in the Court of Civil Judge Junior Division, Pune seeking possession of a property at Ghorpadi (Dobadwadi), Survey No 66A, Hissa No. 5. The Plaintifs said that the Defendants -- the present Petitioners -- were encroachers and had erected huts on this land. The Defendants raised a plea of adverse possession. Some Defendants said that the Plaintifs were not the owners, while others claimed that the relationship between the Plaintifs and the Defendants was that of landlord and tenant. The parties went to trial. On 5th March 1984, the Trial Court decreed the suit. It directed the Defendants to deliver vacant possession of the suit property by demolishing their huts and other structures. The judgment records that the Defendants tried even then to contend that their huts were not on

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the suit property. This was described in the Suit as Survey No. 66A/ 5 or, in other words, Hissa No. 5 of Survey No. 66A at Ghorpadi.

5. At that time, some of the Defendants contended that their huts were on altogether diferent Survey No. 60A. This contention was rejected because there was no foundational pleading in the written statement. The Court found as a matter of fact that there were indeed huts on the suit property, Survey No. 66A/5, that the Plaintifs were the owners of the land, and that the record showed that the Defendants had unauthorizedly occupied it.

6. In 1985, the Defendants fled Regular First Appeal No. 47 of 1985. On 28th March 2006, the Defendants moved an application for amendment of the written statement saying that the Government of Maharashtra had issued a notifcation under the Slum Areas Act declaring Hissa No. 8 of Survey No. 66A to be a slum. The Defendants' amendment application was that Hissa No. 8 and Hissa No. 5 were one and the same. On 17th July 2006, the District Judge dismissed this amendment application. Against this, the Defendants fled Writ Petition No. 5876 of 2006. This was dismissed on 12th July 2007 reserving to the Defendants' right to take independent proceedings.

7. On 25th July 2007, the District Judge Pune dismissed the Defendants Civil Appeal No. 47 of 1987 (the First Appeal) with costs. Even at that time, the Defendants contended that Hissa No. 5 and Hissa No. 8 were one and the same. The District Judge returned a fnding that the Defendants' huts all fell in Hissa No. 5

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and that the Slum Area notifcation was only in respect of Hissa No. 8 of Survey No. 66A. The District Judge also noted that there was no pleading in the written statement that Hissa No. 5 and Hissa No. 8 were the same land. There was also a certifcate by the Competent Authority to show that it was only Hissa No. 8 that had been declared as a slum.

8. The scene now shifts to the inevitable darkhast or execution proceedings. The Plaintifs sought the issuance of a possession warrant. On 17th October 2008 the executing Court allowed that application.

9. The Defendants fled Second Appeal No. 74 of 2009 in this Court against the order dismissing their First Appeal. That Second Appeal was dismissed on 25th November 2008, with a learned Single Judge of this Court returning a fnding that the Second Appeal raised no question of law at all, much less a substantial one. The Court found the Second Appeal to be entirely without merit.

10. On 2nd January 2009, Petitioner No. 32 fled an application to review the order of 17th October 2008 granting the Plaintifs the issuance of a possession warrant. The executing Court rejected this review application. Against this, Petitioner No. 32 fled Writ Petition No. 1148 of 2009. This Court directed the executing Court to decide the Defendants pending application expeditiously. On 25th March 2009 the Defendants fled an application at Exhibit 66 seeking a review of the order dated 17th October 2008. The executing Court directed the Objectors to furnish various details but

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it seems the Defendants failed to do so. Consequently, when the Plaintifs said that on the failure of the Defendants to produce documents, execution should proceed, the executing Court agreed.

11. The Defendants then fled Review Petition No. 5 of 2009 against this Court's decision dismissing the Second Appeal. That review petition failed on 25th August 2009.

12. On 15th October 2009, another writ petition fled by the Defendants challenging the executing Court's direction to proceed with the execution issued on 29th April 2009 also failed.

13. Then came an order of 23rd March 2010 (AS Oka J, as he then was) in Writ Petition No. 925 of 2010 fled by 21 Defendants challenging the orders passed by the executing Court on the Defendants' review application and the executing Court's order issuing a possession warrant. While considering that, in paragraph 11, the learned Single Judge noted as follows:

"11. Moreover, neither in the application at Exhibit 50 nor in the application at Exhibit 66 the petitioners have come with a case that the suit property has been declared as a slum area. The same contention was raised by the petitioners in Second Appeal (St) No. 20911 of 2007 which was not accepted by this Court. Thus, this is nothing but an attempt made by the petitioners to prolong the execution of the decree passed in the year 1984. Considering the conduct of the petitioners in Writ Petition No. 925 of 2010 this is a ft case where order of payment of compensatory costs under Section 35A of the Code of Civil Procedure, 1908 should be passed

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against the petitioners. The amount of compensatory costs is quantifed at Rs. 25,000/-."

(Emphasis added)

14. The Defendants fled a special leave petition against the order dated 25th August 2009 dismissing their review petition (which sought review of order dismissing their second appeal). The SLP was dismissed on 31st July 2009. One of the principal grounds in the SLP was that the two Hissa numbers were in fact one and the same parcel of land.

15. On 23rd September 2019 -- and this brings us to the heart of the present controversy -- the Defendants fled an application Exhibit 141, now saying that the decree was inexecutable. Why? For the very same reason that the Defendants had agitated at least three times before, each time unsuccessfully, namely, that Hissa No. 8 and Hissa No. 5 were one and the same and since the Government had declared Hissa No. 8 as a slum, in view of the embargo in Section 21(1)(b) no execution could proceed against without prior permission of the Competent Authority.

16. Now this application seems to have received what I can only describe as a very peculiar disposal because there is a noting of 23rd September 2019 saying that the Defendants / Applicants had not supplied a copy to the Plaintifs. The Court directed a copy to be supplied that very day. The Defendants not having done so, the application was disposed of. The Defendants had not replied, now for over two years, to the Plaintifs' application for execution and,

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therefore, on 24th September 2019, the executing Court allowed the application for a possession warrant with police protection.

17. On 7th October 2019, the Defendants fled a so-called review against the noting on Exhibit 141 (rejecting the prayer that the decree was inexecutable on the allegation that Hissa numbers, though diferent, pertained to the same land). On 15th October 2019, barely eight days later, the Defendants fled yet another application (Exhibit 145) now seeking a stay of the order of 24th September 2019 issuing a possession warrant with police protection.

18. The Defendants fled yet another application (Exhibit 148) now seeking an extension of a stay until disposal of their so-called review in Civil Miscellaneous Application No. 1299 of 2019. The executing Court went through the entire record. It considered the entire conspectus of the matter. On 17th October 2019, it rejected the application for stay. The Court also observed that the only issue being raised by the Defendants was one that had been decided against them not once but multiple times and the latest order of 24th September 2019 (pages 142-143) clearly showed that this argument had been repeatedly rejected.

19. This order refusing a stay pending the so-called review is the subject matter of the present Writ Petition. On 6th November 2019, this Court ordered a status-quo. That has continued since then and this is what aggrieves Mr Limaye for the Plaintifs.

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20. Now the only argument being made before me today is that the review petition or review application is still pending. But the question is what does that review seek? That review is directed against an order on Exhibit 141; and Exhibit 141 was an application by the Defendants raising only one point: that Hissa No. 5 and Hissa No. 8 were one and the same and that since Hissa No. 8 had been declared a slum, the possession decree of the Plaintifs of 1984 was not executable in law. But this very point has been agitated, as the foregoing brief narrative and chronology show, not once but repeatedly and has been equally repeatedly negatived at every single stage: frst appeal, second appeal, special leave petition, writ petition, back to the executing Court and in stay applications before the executing Court.

21. Now the only observation needed on this Writ Petition is: enough is enough. The Defendants cannot constantly keep repeating the same old, tired, jaded, faded, worn-out and tattered mantra again and again, in the font Goebbelsian hope that an untruth if repeated sufcient number of times will sooner or later be believed. It will not. For the last time, the Defendants have not been able to establish what they have said and their contention has been negatived completely all the way to the Supreme Court and even thereafter. The question is no longer res integra and cannot be questioned in any Court below including in the Darkhast Court.

22. The civil miscellaneous application for review is misconceived. Indeed, the application from the order on which it seeks the review is itself misconceived because it does nothing except reiterating an already concluded issue.

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23. Despite the large number of orders and this enormous bulk this is all there is to the matter.

24. There is yet another reason to reject the Defendants' contention outright. It is absolutely inconceivable that any land records registry anywhere would give two Hissa Nos to one land. There may be diferent types of numbering (CTS vs Survey-Hissa Nos, for instance), but every parcel of land is uniquely identifed. If there is a CTS No 800, and there is a sub-division or sub-plot, it will be identifed at CTS No 800/1. So too with Survey and Hissa Nos. Accepting the Defendants' contentions results in the unthinkable from the perspective of land records and revenue entries. There would be untold confusion. If it happens accidentally, it must be corrected. The Defendants' story that Hissa No 5 of Survey No 66A became Hissa No 8 and then became Hissa No 5 again is also belied by the fact that the Slum Notifcation did not mention Hissa No 5 at all, but only Hissa No 8.

25. There is absolutely no substance in this Writ Petition. It is vexatious and mischievous and must be dealt with as such. The Writ Petition is dismissed.

26. The order of 6th November 2019 stands vacated.

27. The Interim Application is thus infructuous and is disposed of accordingly.

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28. Mr Limaye has instructions to press for costs. The Petitioners leave the question of costs to me. Though this may not be in commercial division, this Petition is nothing but the sheerest abuse of the process of this Court, entirely vexatious, and an incredible waste of judicial time almost at every level. The previous orders of costs aggregating to Rs. 35,000/- have not been complied with. I am inclined to make an order of costs in the amount of Rs. 50,000/- against the Defendants (Writ Petitioners) and in favour of the Plaintifs.

29. At this stage, I am told that the Defendants are poor people whose huts have been demolished. The number of litigations that they have fled does not seem to me to indicate that they are in any way lacking for legal resources or funding. It may well be that behind them is somebody else funding this litigation. How else could these Petitioners aford the kind of representation and the number of proceedings they have fled? First appeal, second appeal, writ petitions, reviews upon reviews, a special leave petition, further applications before the executing Court, more review petitions before the executing Court, stay applications before the executing Court and now this writ petition itself.

30. The order of 6th November 2019 recorded that demolition had already taken place. The Interim Application was fled because there were attempts to reconstruct the houses that had already been demolished. This further goes to show that the Defendants are anything but helpless. Mr Petkar submits that this only further shows that the Defendants are not without resources.

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31. If I am asked to believe that all of this has been done by the Advocates out of sense of charity then that is far too stretching credulity so far. It establishes that these Petitioners are very far from being indigent or without resources as is now claimed. In any case, poverty is not an excuse to squander judicial time, to take liberties with the judicial process or to take Courts and Judges for granted. That is all that these Defendants have done. This will now stop. The amount of costs of Rs 50,000 -- and I have consciously kept it modest; in a commercial dispute, it would be no less than Rs 5 lakhs or more -- is to be paid within a period of three weeks from today, failing which it will be executable as an order of this Court and if necessary be transmitted to the executing Court in addition to the other reliefs that the Plaintifs have obtained in the executing Court.

32. The Darkhast proceedings are expedited.

33. Writ Petition and Interim Application disposed of in these terms.

34. All concerned will act on production of an ordinary copy of this order.

(G. S. PATEL, J)

5th April 2021