Bombay High Court
Bharat Petroleum Corporation Ltd vs Mr. Fali @ Framji Jalegar Ghaswala ... on 5 March, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2861 OF 2018
Bharat Petroleum Corporation Ltd }
Bharat Bhavan, 4 & 6 Currimbhoy Road }
Ballard Estate, Mumbai-400 038 } ..Petitioner
Vs.
1. Mr.Fali @ Framji Jalegar Ghaswala }
R/at 3852, South Mission Parkway }
Nilam Digitally signed
by Nilam Kamble Aurora, Colando 80013, U.S.A. }
Kamble Date: 2021.03.05
17:29:07 +0530 Through Constituted Attorney }
Mr.Mahendra Jagannath Yeole }
R/at Model Colony, Pune-411016 }
And }
2, Shrishti Chamber, 1196/B Ghole Road }
Shivaji Nagar, Pune-411 004 }
2. M/s.Everest Automobiles }
A Registered partnership firm }
3. Mr.Angelo Nilus Lobo }
(Angelo Everest Lobo) }
4. Mr.Xavier Anthony Lobo }
No.2,3 and 4 having address at }
828/48, Dastur Meher Road, }
Nirmal Niwas, Pune-411 001 }
5. Shree Bal Estate Pvt. Ltd. }
4, Buona Casa, 2nd Floor }
Opp. Kashmir Arts Emporium, Fort, }
Mumabi-400001 } ..Respondents
----
Mr.Shivprasad R. Page for the Petitioner.
Mr.Siddhesh Bhole a/w Ms.Krupashree Sawant i/b S.S.B. Legal for
Respondent No.5.
----
N.S. Kamble page 1 of 9
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CORAM : C.V. BHADANG, J.
RESERVED ON : 01st MARCH 2021
PRONOUNCED ON : 05th MARCH 2021
JUDGMENT:
1. Rule made returnable forthwith. The learned counsel
for the respondents waives service. Heard finally by consent of
parties.
2. The challenge in this petition is to the order dated 28 th
January 2008 and the judgment and order dated 05 th December
2011 passed by the learned District Judge at Pune in Civil Appeal
No.722 of 2005. Essentially by the impugned order the appeal filed
by the petitioner, has been dismissed for want of payment of paper
book charges.
3. Although the challenge appears to be short, the dispute
has a chequered history.
4. The respondents are the owners of the suit property
more specifically described in the plaint which was leased out to the
erstwhile Burmah Shell Oil Storage and Distributing Company of
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India Pvt. Ltd. ('Burmah Shell' for short) under a lease deed dated
20th October 1955 for a period of 20 years. The said lease was
renewed on 01st October 1974 for a further period of 20 years which
expired on 30th September 1994.
5. In the meantime the establishment of Burmah Shell was
taken over by Government of India, pursuant to the Burmah Shell
(Acquisition of undertaking in India) Act, 1976 and since then the
petitioner Bharat Petroleum Corporation Ltd.('BPCL' for short) has
become entitled to the rights in respect of the suit premises, as
successors of Burmah Shell.
6. As the petitioner failed to vacate and handover the
possession of the suit premises, on expiry of the lease period, the
respondent No.1 issued a notice dated 16th July 2003 thereby
seeking possession and thereafter filed Civil Suit No.3 of 2004 for
possession and other consequential reliefs.
7. The suit was resisted on behalf of the petitioner on the
ground that under Section 5(2) of the Act of 1976 the petitioner was
entitled to exercise an option of further renewal, which option was
exercised by virtue of a letter dated 12 th July 1994. In short
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according to the petitioner the lease stands renewed till 30 th
September 2034.
8. The learned trial Court refusing to uphold the defence
decreed the suit on 15th September 2005. Feeling aggrieved the
petitioner challenged the same before the learned District Judge in
RCA No.722 of 2005.
9. The said appeal came to be dismissed on 28 th January
2008 with the following order:-
"Order below Exh.1
The appellant and his counsel repeatedly absent. No
steps taken for payment of paper book since 13/3/2007.
On 25/01/2008 respondent made an application and
matter is kept today. Today also appellant is absent.
Hence Appeal is dismissed for want of prosecution. Stay
stands vacated. R & P be sent back. Inform L.C.C.
Applicant to pay costs of respondent."
10. It appears that the petitioner filed an application
Exhibit-20 seeking restoration of the appeal on the ground that the
appeal was not fixed on 28 th January 2008 but was scheduled to
come up on 26th February 2008. In short according to the petitioner
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the appeal was wrongly on board on 28th January 2008 on which
date it came to be dismissed as aforesaid.
11. The learned District Judge verified the daily boards of
25th January 2008 and 26th February 2008 and refused to accept that
it was wrongly on board i.e. on 28 th January 2008. In that view of
the matter application Exhibit-20 came to be rejected on 05 th
December 2011. The petitioner challenged the same in Appeal
From Order (AO) No.180 of 2013 before this Court presumably on
the premise that the order is appealable under Order XLIII Rule 1 of
C.P.C. That appeal came to be withdrawn on 12 th June 2017 with
liberty to file Writ Petition. It is after this that the present petition
came to be filed on 04th June 2017. The net result is that the
petitioner now wants an appeal instituted in the year 2005 to be
restored to file.
12. I have heard the learned counsel for the petitioner and
the learned counsel for the respondent No.5. Perused record.
13. The learned counsel for the petitioner has placed
reliance on the decision of the Supreme Court in the case of
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Kalipada Das V/s. Bimal Krishna Sen Gupta 1, in order to submit that
the petitioner is entitled to get the appeal restored, as the same is
dismissed on the technical ground of non-payment of the paper book
charges.
14. The learned counsel for the respondent has submitted
that the petitioner is only trying to prolong the lis. The learned
counsel has pointed out the decision of this Court in Bharat
Petroleum Corporation Ltd V/s. Champalal Vithuram Jajoo 2, in
order to submit that this Court had found that the petitioner is a
"Notorious entity". It is submitted that this is the usual modus
operendi engaged into by the petitioner to prolong the lis. It is
submitted that the suit property is being used for commercial
purpose, which is situated at a strategic location in the Pune city. It
is submitted that, even otherwise the defence based on Section 5(2)
of the Act 1976 is not acceptable, in view of the decision of this
Court in Bharat Petroleum Corporation Ltd V/s. Rustom Behramji
Colah (Dr.)3. He therefore, submitted that the petition be dismissed.
1 (1983) 1 Supreme Court Cases 14
2 2020 SCC Online Bom 792
3 2006 SCC Online Bom 706
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15. I have given my anxious consideration to the rival
circumstances and the submissions made. It is true that the
petitioner continues to be in possession of the suit property although
according to the respondents the lease has expired on 30 th
September 1994. It is also pointed out on behalf of the respondent
that the defence based on Section 5(2) of the Act of 1976 is not
acceptable. However, I am afraid it is not possible to examine the
merits of the challenge in the appeal before the learned District
Judge the challenge has to be confined to the order dated 28 th
January 2008 as reproduced above. However, before doing that it is
necessary to note that the petitioner could have acted with greater
diligence in the matter. The respondent is questioning the bona
fides of the petitioner in which the matter is prosecuted since
inception. However, here again I would confine myself to the
challenge to the order dated 28th January 2008.
16. In the case of Kalipada Das the appeal was dismissed on
a similar ground of non-compliance with the order to supply copies
of the paper book within a fixed period. In the present case the
appeal is dismissed as the appellant failed to take steps for payment
of the paper book charges. It is trite that the Courts would normally
lean in favour of a decision on merits than on technicality. Thus
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although, strictly, the manner in which the petitioner has prosecuted
the appeal cannot be approved still only with a view to ensure that
the appeal is decided on its merits, I am inclined to grant
indulgence. The Supreme Court in the case of Kalipada Das has
held that a procedural step is in the aid of justice and such a
procedural step which facilitates hearing of the appeal, cannot
impede the access to justice.
17. Considering the overall circumstance, and only with a
view to give a fair chance to the petitioner, I am inclined to allow
the petition. Hence, the following order:-
ORDER
(i) The petition is allowed.
(ii) The impugned order is hereby set aside. Civil
Appeal No.722 of 2005 is restored back to the file of the
learned District Judge at Pune for disposal according to
law.
(iii) The petitioner shall furnish a private paper book
within two weeks from today, failing which it will be
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open to the respondent to file a private paper book
within two weeks thereafter.
(iv) The hearing of the First Appeal is expedited.
(v) The learned District Judge shall hear and dispose
of the appeal within a period of eight weeks from
receipt hereof.
(vi) Parties to co-operate for the time bond disposal of
the appeal.
(vii) The rival contentions on merits are left open.
(viii) Rule is made absolute in the aforesaid terms with
no order as to costs.
C.V. BHADANG, J.
N.S. Kamble page 9 of 9
