Bombay High Court
Vikrant S/O Shamsunder Verma And ... vs Gopaldas B. Kungwani (Deceased ... on 25 January, 2021
Bench: V.M. Deshpande
1 wp876.20.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.876/2020
Vikrant s/o Shamsunder Verma and anr. .vs. Gopaldas s/o Bhagwandas
Kungwani (Deceased, represented by his LRs.) Shanta wd/o Gopaldas
Kungwani and Ors.
_______________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. Ravi Srivastava, Mr. D. N. Dani, Advocates for petitioners.
Mr. V. V. Bhangde, Advocate for respondent nos. 1(i) to (vi)
CORAM : V.M. DESHPANDE, J.
DATED : JANUARY 25, 2021
Heard Mr. Srivastava, learned counsel for petitioners
and Mr. Bhangde, learned counsel for respondent nos.1(i) to (vi).
The petitioners herein are original defendant nos. 2
and 3. Whereas, respondent no.2 is original defendant no.1.
Respondent nos.1 (i) to (vi) are legal representatives of original
plaintiff, Late Gopaldas.
Gopaldas filed a suit under Section 6 of the Specific
Relief Act. The said suit is decreed by learned Civil Judge Senior
Division, Nagpur, thereby granting decree for vacant possession
of the suit property to the plaintiff.
According to the petitioner, when respondent no.1
filed execution proceedings, the petitioner got knowledge of the
ex parte decree. Therefore, they filed an application under Order
IX Rule 13 of the Code of Civil Procedure. An application for stay
was also filed for staying the judgment and decree in Regular
Civil Suit No. 996/2008. However, the said was rejected by the
Court below. Therefore, the petitioners were required to
approach before this Court in Writ Petition No.4883/2018. This
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Court (Coram: Rohit B. Deo, J.) on 16.10.2019 allowed the writ
petition filed on behalf of the petitioner, subject to payment of
costs of Rs.1,00,000/-. The amount of costs was deposited by the
petitioner. There is no dispute about the same.
Thereafter, M.J.C.No.375/2015 was dismissed on its
own merit. Hence, this writ petition.
According to learned counsel for petitioner, in view of
the observations of the learned Judge in the impugned order in
last four lines of paragraph 12, there is nothing on record to show
that summons were served hence order needs to be set aside.
As against this, it is submission of Mr. Bhangde,
learned counsel for respondent nos. 1 (i) to (vi) that in view of
order dated 10.07.2019, below Exh.-1 in Special Civil Suit No.
996/2008, defendant nos.2 and 3 had not appeared even though
served. Suit proceeded ex parte against them and in absence of
challenge to that order, the proceeding itself is not maintainable.
It is his submission that the order passed on 10.07.2019 has
attained finality, therefore, unless that is challenged, the
proceedings are barred. To buttress his submissions, he relied
upon judgment in D. P. Chadha Vs. Triyugi Narain Mishra and
Ors; reported in (2001) 2 SCC 221. It appears that order dated
10.07.2019 is not challenged. In that view of the matter,
whether application is maintainable in absence of challenge to the
said order is a question of law and it requires detailed
consideration. Hence RULE.
Interim order granted by this Court on 12.02.2020
stands confirmed. This order is without any condition.
The petitioners are in possession of the property.
In the evidence of the petitioners, the petitioners themselves have
admitted that suit property is used for commercial purpose and
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in 2013, value of the property was about Rs.60,00,000/- to
Rs.70,00,000/- and on 03.12.2019, when cross-examination was
recorded, he admitted that the value is more than
Rs.1,00,00,000/-.
The plaintiff has purchased the property and the suit
it for cancellation of the sale deed bearing No.890109 filed by
present petitioners is already disposed of by the competent Court
that decree has attained finality. Thus, respondent nos. 1 (i) to
(vi) are lawful owners of the property. Therefore, they are
entitled for occupation charges, as rightly submitted by the
learned counsel for respondent nos.1(i) to (vi), since the
petitioners are in possession of the property.
Looking to the fact that the property is situated in
market area and it is being used for commercial purpose and the
area is about 2000 Sq. Ft., it is hereby directed that petitioners
shall pay occupation charges of Rs.35,000/- per month from
04.01.2020 i.e. the date on which M.J.C.No.315/2015 filed by
the petitioners was dismissed, till today within a period of eight
weeks from today and shall continue to pay the same on or before
10th day of each calendar month. The amount shall be deposited
in trial Court as a condition for interim order in their favour.
Respondent nos.1 (i) to (vi) are permitted to file
application for withdrawal of the amount before execution Court
where the petitioners will be depositing the occupation charges.
JUDGE
kahale
