Ashok Dhawan vs Shaikh Basheed And 2 Ors
2021 Latest Caselaw 12296 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION


                       WRIT PETITION (L) NO.10780 OF 2021


Ashok Dhawan                   ]      Petitioner.
              Vs.
Shaikh Basheed & Ors. ]               Respondents.
                                      .....
Mr.Mayur Khandeparkar a/w Deepak Singh i/b Solicislex for
Petitioner.
Ms Sapna Khobragade a/w Mr. Raj Gupta, Dharmesh Panchal i/b
Rajesh Khobragade, for Respdt. No1.
Ms Uma Palsuledesai, AGP for State.
                                      .....
                               CORAM : K.K. TATED &
                                       PRITHVIRAJ K. CHAVAN, JJ.

                               DATE     : 1st SEPTEMBER, 2021.


P.C.

1.       Heard learned Counsel for parties.


2.       By this petition the petitioner is challenging order dated

02.01.2020 passed by the Competent Authority (Rent Control Act)

Konkan Division, Mumbai, rejecting Misc. Application No.30/2019,

which was for following reliefs.




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                       18. Therefore, the applicant most respectfully prays
                       and submits that

                       (i)This Hon'ble Competent Authority be pleased to
                       allow this application ;

                       (ii)That the furniture, goods and articles of the
                       respondent may be handed over to the respondent by
                       due process of law and car of the Respondent as stated
                       hereinabove shall be removed from parking.

                       (iii) That Hon'ble Competent Authority may be
                       pleased to pass an order for the applicant to legally
                       dispose of the said furniture, goods and articles
                       alongwith the car of the respondent in lieu of his
                       arrears of license fee.

                       (iv)     Any such relief as this Hon'ble Competent
                       Authority may deem fit.



3.       The Misc.Application was rejected directing the respondent to

remove their belongings from two rooms i.e. flat no.B/1701, Imperial

Heights, Water Pump House road, Goregaon West, Mumbai-400 104.

(hereinafter referred as 'said flat').



4.       Learned Counsel for the petitioner submits that in the present

matter, initially petitioner filed application u/s 24 of the Maharashtra

Rent Control Act, 1999 being Case no.87 of 2017 for peaceful

possession of the said flat. After hearing both the parties, Competent

Authority, Konkan Division, Mumbai, by order dated 7.4.2018

directed Respondent to hand over vacant possession to the applicant


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of the said flat. Operative part of the said order reads thus:

                                  ORDER

              (i)     The application is allowed.
              (ii)    The Respondent is hereby directed to handover the

vacant and peaceful possession to the Applicant of the Application premises i.e. premises bearing Flat No.B/1701, Imperial Heights, Water Pump House Road, Goregaon (West), Mumbai 400 104.

(iii) The Respondent is hereby directed to pay to the Applicant, arrears of monthly License fees till 09.06.2017 and double the rate of monthly License fees i.e. Rs.1,15,000 x 2 - Rs.230,000 from 10.06.2017 till vacant possession of the application premises be delivered to applicant.

(iv) The applicant is at liberty to appropriate the amount of security deposit, if any.

5. Thereafter as the respondent failed and neglected to vacate the

premises, Petitioner filed application for execution. At the time of

execution, the concerned Bailiff made Panchnama dated 14.11.2018,

stating the the respondent failed to co-operate therefore, they opened

the flat forcibly. The Bailiff kept the belongings of respondent in two

rooms.

6. Learned Counsel for the petitioner submits that thereafter

respondents failed and neglected to remove those belongings from

two rooms. Therefore, they filed Misc. Application No.30/2019 in

Eviction Application No.87 of 2017 before the competent authority.

Said application was rejected by the authority stating that the Decree

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is already executed. Therefore, there is no question of executing the

Decree again. Para 5 of order dated 2-1-2020 reads thus:-

5. Perused the record. It is fact that this Authority has given possession of application premises to the applicant on 14.11.2018. It means that this Authority had executed eviction order dated 7.4.2018. It is contention of applicant that during the execution proceeding officer of this Authority kept the furniture, goods and other articles of respondent in two room and sealed. It is also contention of applicant that the car of respondent illegally parked in the parking space. In contra, it is case of respondent that till date the respondent is residing in the application premises and no physical possession has been taken and commercial suit is pending before the High Court. It is fact that all the articles are kept in two rooms during the proceeding of execution. It is settled principal of law that there is no provision to re-execute decree.

7. The learned Counsel for Petitioner submits that, hence

petitioner preferred present writ petition. In support of his

contention, he relies on the judgment in the matter of Ramchandra

Relwani Vs. Raees Ahmed Faruque reported in 2011(1) Mh.L.J. Para

17 and 18 of the said judgment reads thus;

"17 . There is another aspect of the matter. The Petitioner brought to the notice of the Competent Authority that during the pendency of the revision application preferred by the Respondent for challenging the order of eviction, the Petitioner was forcibly dispossessed though he was placed in possession on the basis of the order of eviction passed by the Competent Authority. The respondent admittedly did not follow the due process law. He took forcible possession. Power to do justice is inherent in every Tribunal. The Division Bench of this Court in the case of Maharashtra Shikshan Sanstha vs.Education Officer( [1995]1 Mh.L.J

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875) dealt with inherent powers of the School Tribunal established under the Maharashtra Employees of Private School (Condition of Service) Regulations Act, 1977. In paragraph No.14 of the said decision, the Division Bench held thus:

14. We have pointed out hereinbefore that the School Tribunal is conferred with all the necessary powers, procedural as well as substantive in the adjudication of the matter before it under sections 10 and 11 of the Act. When the School Tribunal is conferred with the powers of the Appellate Authority under the Code of Civil Procedure, 1908, for the purposes of admission, hearing and disposal of the appeals before it, and even otherwise also being a quasi- judicial if not a judicial authority it would mean that it has inherent powers to pass appropriate orders in the lis before it ex debito justitiae including the power to issue temporary injunctions in matters not specifically covered by Order 39 of the Civil Procedure Code or by any provision of the Act. See Manoharlal Vs. 13 wp.4450.10.doc Seth Harilal, Air 1962 Sc

527. Also see Ram Bahadur Vs. Devidayal, AIR 1954 Bombay

176."

18. Thus, even in case of the Competent Authority, which is certainly a quasi-judicial authority, there is an inherent power vesting in it to pass appropriate order for the purposes of doing justice between the parties."

8. The learned Counsel for petitioner also relies on order dated

24.3.2021 passed by this Court in Interim application no.2216/2020

in Court Receiver's Report No.142 of 2019. Paragraph 4 of the said

order reads thus,

"4. In the very first place, the interim relief prayed for herein is a fall-out of what has already been directed by this court in its interim order passed on 13 September 2019. The order of 13 September 2019 was passed on a Receiver's report. Originally, the Defendant was in possession of the suit property as an agent of the Court Receiver. The Court

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Receiver had fixed a royalty of Rs.1,20,000/- per month payable by the Defendant from 12/20 July 2017. In the meantime, under orders of the court, pending fixation of royalty by the Court Receiver, the Defendant went on to pay a sum of Rs.45,000/- as monthly royalty on ad-hoc basis between 12/20 July 2017 and 7 June 2018 when the Receiver fixed royalty of Rs.1,20,000/- per month and called upon the Defendant to deposit the differential amount (i.e. difference between Rs.1,20,000/- fixed as final royalty and Rs.45,000/- paid as ad-hoc royalty earlier). The Defendant neither paid the arrears nor the royalty fixed by the Receiver prospectively and in the premises, the Receiver's report sought directions for future course of action. This court, after considering the objections of the Defendant, upheld the order of the Court Receiver fixing royalty in the sum of Rs.1,20,000/- per month from the date of the report, i.e. 1 June 2019. The court ordered the Defendant to pay arrears and continue to pay future royalty in the sum of Rs.1,20,000/- per month from the date of the report, i.e. 1 June 2019. In the event of the Defendant's failure to pay such arrears or future royalty, the Receiver was directed to take physical possession of the suit property by dispossessing the Defendant. This order has not been challenged by the Defendant and holds the field as of this date. In pursuance of this order, the Receiver did proceed to take possession of the suit property from the Defendant, since the Defendant, despite this order, neither paid arrears nor future royalty to the Court Receiver. The Defendant was dispossessed on 19 November 2019. The cause for the present interim application arises as a result of the Defendant's stand that though he was required to deliver possession of the suit premises to the Court Receiver, his belongings, including furniture and fixtures installed by him within the premises, need not be removed, since this court purportedly did not pass any order of vacant possession and simply directed physical possession to be taken over by the Court Receiver."

9. On the other hand, learned Counsel for respondent no.1

vehemently opposed the petition. She submits that there is no

question of again execution of the same order. In support of her

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contention, she relies on the judgment of the Apex Court, in the

matter of Jai Narain Ram Lundia Vs. Kedar Nath Khetan & Ors.

reported in 1956 AIR (SC)359 in Civil Application No.206/1955

dated 31.1.1956. She relies on the following portion.

"The defendant may or may not have the right to ask the Court which passed the decree to vary it in that way but he can certainly not, ask the executing Court to do so. The decree must either be executed as it stands in one of the ways allowed by law or not at all. In the High Court, and also before us, much was made of the fact that the plaintiff had not re-tendered the money after the decree was varied by the High Court and it was argued that that precluded him from contesting the defendant's right to attach his property under Order XXI, rule 32(1), of the Civil Procedure Code. The remedy provided in Order XXI, rule 32(1), is, of course, one of the remedies available in execution of a decree for specific performance but it can only be used by a person who is entitled to execute the decree, and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, Order XXI, rule 32 (1), cannot apply. The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can? The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under section 47 of the Civil Procedure Code, it can only be determined by the Court executing the decree. And as for the first Court's conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that section 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such

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decree as if it bad been passed by itself.

The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal -Court when it passed its decree he is precluded from doing so now. It is true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection to execution. The defendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree, in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and un- correlated parts and be executed unilaterally. It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree later if he did not know these facts at the time, as he says, it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifies it. Then it was argued that this objection to execution should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for transfer of the decree to Motihari and that as that was not done it is too late now. But here also the answer is the same.

The only question before the Calcutta High Court on the application made to it was whether the decree should be transferred or not. Whether the plaintiff might or could have taken the objection in the High Court is beside the point because it is evident that he need not have done so on the only issue which the application for transfer raised, namely, whether the decree should be transferred or not; at best it could only be said that the plaintiff had a choice of two forums. If the appellant's contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine. In our opinion section 42 of the Civil Procedure Code is a

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complete answer to this contention. The appeal fails and is dismissed with costs."

10. When this Court declined to accept the submissions made by

the learned Counsel for respondent, at that time, learned Advocate

submits that, be pleased to place the matter on board tomorrow i.e.

2.09.2021 so that, she can take instructions whether her client want

to remove the articles lying in the rooms and within how much time.

11. For that purpose, Registry to place the matter on board

tomorrow i.e. 02.09.2021.

[PRITHVIRAJ K. CHAVAN, J.]                             [K. K. TATED, J.]




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