Bombay High Court
Dilshad M Ravthar And Ors vs Shri. Manoj Ramchandra Chougule ... on 13 October, 2022
Bench: Madhav J. Jamdar
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Pallavi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PALLAVI
Digitally signed
by PALLAVI
MAHENDRA
CIVIL APPELLATE JURISDICTION
WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.10.17
20:03:50
+0530
WRIT PETITION NO.8590 OF 2019
Dilshad M. Ravthar & Ors. ...Petitioners
Versus
Shri. Manoj Ramchandra Chougule& Ors. ...Respondents
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Mr. Chetan G. Patil, for the Petitioners.
Mr. Sugandh B. Deshmukh, for Respondent Nos.1 and 2.
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CORAM: MADHAV J. JAMDAR, J.
DATE : OCTOBER 13, 2022
P.C.:
1. Heard Mr. Chetan Patil, learned advocate appearing for the
petitioners and Mr. Sugandh Deshmukh, learned advocate for the
respondents.
2. The petitioners have filed this writ petition challenging the
legality and validity of the order dated 3rd July 2019 passed by
learned Ad hoc District Judge-2, Kolhapur in Misc. Civil Appeal No.98
of 2019. In the Misc. Civil Appeal, the appellants i.e. the present
respondent Nos.1 and 2 have challenged the order dated 8 th April
2019 passed by learned 6th Jt. Civil Judge, Junior Division, Kolhapur
below Exh.5 application in Regular Civil Suit No.971 of 2018. By said
order dated 8th April 2019 Exh.5 application is rejected. By the
impugned order dated 3rd July 2019, the said Misc. Appeal No.98 of
2019 was allowed by setting aside order dated 8th April 2019 and
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thereby allowing application for temporary injunction at Exh.5 and
therefore, defendant nos.1 to 3 i.e. the present petitioners are
temporarily restrained from causing obstruction to the peaceful
possession of the plaintiffs i.e. of the respondent nos.1 and 2 of suit
shop No.A-17 till final disposal of the suit.
3. The said R.C. Suit No.971 of 2018 has been filed by the
respondents seeking injunction to the effect that the
defendants/petitioners be restrained from causing obstruction to
their possession and the defendants be directed not to take
possession of the suit property from the plaintiffs without following
due process of law.
4. It is the contention of Mr. Patil, learned Advocate of the
petitioners that the appellate Court has not taken into consideration
the documents produced by the petitioners. He submitted that the
documents produced by both the sides were considered by the trial
Court and thereafter, Exh.5 application has been rejected. He pointed
out certain documents including sale deed of the year 2002, property
register card, assessment extract for the years 2009-2010 to 2018-
2019 and the electricity bills. He submitted that all these documents
show that M/s. K.A. Mohamad Sultan and Sons is the occupier. He
states that M/s. K.A. Mohamad Sultan and Sons is a partnership firm.
Earlier petitioners' father was the partner and presently, the
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petitioners, the legal heirs of K.A. Mohamad Sultan @ Ravthar are
the partners of said firm. He submitted that therefore, the impugned
order is perverse and liable to be quashed and set aside. He relied on
the judgment of the Supreme Court the matter between Wander Ltd.
and Anr. vs. Antox India P. Ltd.1 and Skyline Education Institute
(India) Private Limited vs. S.L. Vaswani and Anr.2.
5. On the other hand, Mr. Sugand Deshmukh, learned advocate
appearing for the respondents pointed out the documents viz. rent
receipts executed by the petitioner no.1, particularly at pages 140 to
145. He also pointed out license issued under Maharashtra Shops and
Establishment Act, 1948 and also agreement dated 1st March 2006
executed by the father of the petitioners in favour of the respondent
no.1 He also pointed out another agreement dated 25 th April 2006
executed by the father of the petitioners in favour of father of the
respondent no.2. He also pointed out photographs and telephone
bills.
6. Perusal of license issued under Maharashtra Shops and
Establishment Act, 1948 dated 25th January 2007 shows that said
license has been issued in favour of respondent no.1 and the same
shows address of the suit premises and further shows that the said
1. 1990 (Supp) SCC 727
2. (2010) 2 SCC 142
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shop has started on 26th January 2001. The above-referred
agreements dated 1st March 2006 and 25th April 2006 specifically
mentions that the respondents are the tenants of the suit premises.
The same was executed by the father of the petitioners. Although it is
the contention of Mr. Patil that the said agreements are fraudulent,
the said aspect cannot be considered at the time of considering the
injunction application particularly in the light of other corroborative
documents. Apart from that, the monthly rent receipts executed by
the petitioner no.1 from time to time clearly show that the petitioner
no.1 has accepted rent continuously till September 2018 from the
respondents. Thus, in this case, possible view of the matter has been
taken by the lower appellate Court.
7. There is some substance in the contentions raised by Mr. Patil,
learned Advocate that few documents produced by the petitioners
were not considered by the Appellate Court. However, it is to be seen
that Misc. Civil Appeal was filed challenging the order passed below
Exh.5 i.e. injunction application. The documents executed by the
father of the petitioners, rent receipts executed by the petitioner no.1
as well as the license issued under the Shops and Establishment Act
have been considered by the Appellate Court. All these documents
prima facie, establishes occupation of the suit premises by the
respondents in their capacity as tenants. The judgments relied by
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learned Advocate of the petitioners are regarding power of Appellate
Court to interfere in the order passed by Trial Court. However, in this
case, the Trial Court failed to appreciate the documents in proper
perspective and therefore, learned Appellate Court has rightly
interfered in the order of learned Trial Court.
8. It cannot be said that the impugned order has been passed
without any evidence regarding occupation of the suit premises of the
respondents. Thus, no case is made out to interfere under the
discretionary jurisdiction of this Court under Article 227 of the
Constitution of India.
9. However, it is to be noted that in the plaint and Exh.5
application filed by the respondents specific prayer is made that the
petitioners be injuncted from dispossessing the respondents without
following due process of law. Therefore, clause (a) of the impugned
order dated 3rd July 2019 is required to be modified.
10. At this stage, both learned Advocates state that the issues are
already framed and evidence affidavit has been filed and therefore,
joint request is made to expedite the hearing of the suit.
11. In view of above discussion, following order is passed:
ORDER
(i) The writ petition is partly allowed by modifying the
order dated 8th April 2019;
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(ii) The application for a temporary injunction at Exh.5 is
hereby allowed and the defendant No.1 to 3 i.e.
petitioners are hereby temporarily restrained from
causing obstruction to the peaceful possession of the
plaintiffs i.e. Respondents of suit shop No.A-17 till final
disposal of the suit i.e. R.C.S. No.971 of 2018 without
following due process of law;
(iii) It is clarified that the observations made in this order as
well as the impugned order dated 3 rd July 2019 and
order dated 8th April 2019 are made for the purpose of
deciding the injunction application. It is clarified that
these observations are of prima facie nature and the suit
will be decided uninfluenced by the observations made
in this order as well as in the orders dated 3rd July 2019
and 8th April 2019;
(iv) The learned Trial Court is requested to dispose of the suit
expeditiously and in any event, on or before 31st
December 2023;
(v) Writ Petition is disposed of in above terms with no order
as to costs.
(MADHAV J. JAMDAR, J.)
