Kamal Shyamsunder Narang And Anr vs Mahendra V. Rathod And Ors
2021 Latest Caselaw 5566 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CIVIL APPELLATE JURISDICTION


                   Writ Petition Stamp No. 92869 / 2020

Kamal Shyamsunder Narang & Anr.                               ..   Petitioners

         Vs.

Mahendra V. Rathod & Ors.                                     ..   Respondents

                                       ****

Mr. Vishal Kanade a/w Mr. Prayag Joshi a/w Ms. Vedanshi Shah i/by Mr. Bipin Joshi, Advocate for Petitioner. Mr. S.M. Vyas, Advocate for Respondent No.1(a) and 1(b).

                                    ****

                                CORAM :        SANDEEP K. SHINDE J.

                                DATE       :   24 MARCH, 2021.
                                                 th




ORAL JUDGMENT : -

1.       Rule.


2.       Rule made returnable forthwith.          Heard fnally with the

consent of parties.

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3.         Plaintiffs    in     RAC   Suit    No.     965/3493            of     1982        have

challenged the order dated 4
                                             th
                                                   March, 2020 passed by the

Appellate         Bench,         Small    Causes            Court       at      Mumbai           in

Miscellaneous Appeal No. 371/2004 in Miscellaneous Notice No.

97/2003.

4. Facts of the case are as follows;

Petitioners - Plaintiffs instituted the ejectment suit against the

Respondent No.2 (Defendant No.1), M/s Shamji Devji &

Company in respect of godown premises ad-measuring 5825

sqaure feet., on the ground that he had unlawfully sublet part

of the premises, ad-measuring 3575 square feet to the

Respondent No.3 (Original Defendant No.2) and part premises

ad-measuring 2250 square feet to the Respondent No.1

(Original Defendant No.3 - hereinafter called 'Rathod' for short).

The suit was decreed ex-parte on 14 th October, 2002. Decree

was put to execution and possession warrant was issued. On

st January, 2003, upon executing the warrant, premises (in

part) in possession of Defendant No.1 and 2 was taken over;

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however warrant could not be executed in respect of the

premises in possession of Defendnat No.3 - Rathod and

Defendant No.4, as it was found under lock and key. On 23 rd

January, 2003 premises found locked was broke open and

possession was taken over. Herein, issue is in respect of

premises of Rathod. Subsequently, Rathod vide notice no. 97/3

had applied for to set aside the ex-parte decree dated 14 th

October, 2002 and for restoration of possession ad-measuring

2250 square feet, which was taken over on 23 rd January, 2003.

. The learned trial Court set aside the ex-parte decree

passed against Rathod vide order dated 18 th November, 2013;

however declined to restore the possession. This order was

challenged by Rathod in Appeal No. 317/2004 before the

Appellate Bench, Small Causes Court at Mumbai. The

Appellate Court set aside the order dated 18 th November, 2003

in entirety. Feeling aggrieved by the order dated 18 th October,

2014. Rathod had approached this Court under Article 227 of

Constitution of India in Writ Petition 2639/2019. This Court

vide order dated 15 th April, 2019 disposed of the Petition in the

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following terms;

"(i) The impugned judgment and order dated 18.10.2014 passed by the Appellate Bench of the Small Causes Court at Mumbai in 2b(iv) Appeal No.317/2004 is set aside. The order dated 16.11.2018 passed by the Appellate Bench in Review Application No.14/2016 is also set aside.

(ii) 2b(iv) Appeal No.317/2004 is restored to its original position. The learned Counsel appearing for Defendant No.3 and plaintifs No.1(a) & (b) assure that they will appear before the Appellate Court on 30.4.2019 and for that purpose no fresh notice be issued to them.

(iii) The Appellate Court will examine whether the learned trial Judge has exercised the discretion and validly and whether defendant No.3 has made out a case for restitution of the possession of the suit premises.

(iv) All contentions of the parties in that regard are expressly kept open.

(v)      Rule is made absolute in aforesaid terms with no order
as to costs.         Order accordingly."

5. Thus to be seen that in terms of clause (iii) of the order,

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reproduced above, Appellate Court was directed to examine,

"whether the learned trial Judge had exercised the discretion

properly and validly and whether Defendant No.3 has made out

the case for restitution of the suit premises."

6. In pursuant to the order as aforestated, the Appellate

Court decided the Miscellaneous Civil Appeal and passed the

following order;

"1. The Misc. Appeal No.317/2004 is hereby allowed with costs.

2. The Misc. Notice No.97 of 2003 in R.A.E. Suit No. 965/3493 taken out by the defendant No.3 before the Trial Court is made absolute.

3. The impugned order to the extent of rejecting the prayer clause-c of the defendant No.3 to restore the possession of the suit premises is hereby set-aside.

4. The plaintif/ respondent Nos.1 (a) & 1(b) are directed to restore the area admeasuring 2000 sq. ft. out of the suit premises to the defendant No.3 within a period of one month from today.

5. Inform the Trial Court accordingly."

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7.       Aggrieved by the order dated 4
                                          th
                                               March, 2020 passed in

Miscellaneous Appeal No. 317 / 2004, Original Plaintiffs have

preferred this Petition.

8. Mr. Kanade, learned Counsel for the Petitioners would

submit that in terms of the order passed by this Court on 15 th

April, 2019, the Appellate Court ought to have, just decided,

whether while rejecting the prayer under Section 144 of CPC,

trial Court had exercised the discretion properly and validly. It

is submitted that the Appellate Court has traveled beyond the

scope and ambit of direction, contained in clause (iii) of the

order and thereby ventured to decide the area of the suit

premises to be restored to Rathod. Mr. Kanade submits that

the decision of the Appellate Court to restore the possession of

the premises to Rathod, to the extent of 2000 sq. feet was

arbitrary and without affording opportunity to the Petitioners, to

lead the evidence. It is submitted that there were rival claims

and disputes in respect of the area to be restored to Rathod.

Submission is that in the plaint, the Petitions would assert the

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area ad-measuring 2250 square feet was unauthorisably let out

to Rathod. Mr. Kanade has brought to my notice that Rathod

had further let out area ad-measuring 750 square feet to the

Defendant No.4 Whereafter, Rathod had fled the suit against

the Defendant No.4 for ejectment and a possession of the area

ad-measuring 750 square feet. The suit fled by Rathod was

decided ex-parte on 17 th March, 2007. It appears vide this

decree, Rathod was held entitled to recover 750 sq. feet. area

(part of the said premises) from the Defendant No.4.

9. In consideration of these facts, it is submitted the

Appellate Court ought to have framed the issue relating to area

of premises to be restored to Rathod and referred the same to

the trial Court in terms of Rule-25 and Order-41 of CPC.

Evidence on record suggests the Appellate Court could not

have decided the area to be restored to Rathod. In view of

the conficting and overlapping interest of the parties, the

Appellate Court ought to have relegated the parties to the trial

Court to determine the area of the premises to be restored to

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Rathod.

10. In fact in backdrop of the facts of the case, I am unable

to understand as to how and on what basis, the Appellate

Court has concluded the extent of area to be restored to

Rathod. Thus, in consideration of the facts and for the reasons

stated hereinabove, in my view the ends of justice would meet,

if the trial Court is directed to determine the area of the suit

premises to be restored to Rathod. As such the operative part

of the impugned order contained in Clause No. (iv) passed in

Miscellaneous Appeal No. 317 / 2004 is quashed and set

aside. Accordingly, the Petition is partly allowed.

11. In fact, it is Plaintiffs' case that the Defendant No. 1 has

unlawfully sublet the part of suit premises ad-measuring 2250

square feet to Rathod. Admittedly, Rathod is out of possession

since January, 2018, though the ex-parte ejectment has been

set aside against him. In light of these facts, the trial Court is

directed to decide Rathods' application under Section 144 of

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CPC (being Notice No. 97/2003) as expeditiously as possible

and preferably on or before December, 2021.

12. In peculiar facts of the case, the Petitioners are directed

not to create further third party rights in respect of the property

of which possession was taken on 23 rd January, 2003. The

Petition is allowed in the aforesaid terms and disposed of

accordingly. Rule is discharged.

                                          (SANDEEP K. SHINDE, J.)




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