Delfina R. Fernandes Decd Thru Lhr ... vs Ms. Tabassum Govil And Anr
2022 Latest Caselaw 9968 Bom

                                                 12-wp.12781.2019.doc


Dusane

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CIVIL APPELLATE JURISDICTION

               WRIT PETITION NO.12781 OF 2019



Delfina R.Fernandes & Ors.        ...Petitioners
        V/s.
Ms. Tabassum Govil & Anr.         ...Respondents



Mrs. Zenobia Shapoor Irani a/w Mr. Prashant Tikare
for Petitioners.

                      CORAM: MADHAV J. JAMDAR, J.

                      DATE:       29th SEPTEMBER 2022

P.C.:

1. Heard Mrs. Irani, learned counsel appearing for the

Petitioners.

2. The Petitioners have challenged an order dated 6th

March 2019 passed in Execution Application (Stamp) No. 816

of 2018 by the learned Judge, Small Causes Court, at Bandra,

Mumbai. By the impugned order, the learned Executing Court

has kept execution proceedings in abeyance as decree has

been stayed.

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3. The Petitioner, who is landlord has filed suit bearing RAE

Suit No.44/102 of 1987 on the ground of bonafide

requirement, non-user and acquisition of alternate suitable

premises. The trial Court decreed the suit by the judgment

and decree dated 17th July 2015 on the ground of bonafide

requirements and acquisition of alternate suitable

accommodation however, negatived the ground regarding

non-user.

4. Respondent-tenant filed an appeal bearing Appeal No.

31 of 2015 challenging the said eviction decree before

Appellate Court and the Petitioner-landlord also filed Cross-

Objection in said appeal. The appellate Court by the judgment

and decree dated 9th February 2017 dismissed the appeal and

allowed the Cross-Objection. The effect is that the suit filed by

the landlord i.e. the Petitioner bearing RAE Suit No. 44/102 of

1987 is decreed on all the grounds including non-user of the

suit premises.

5. The said decree passed by the trial Court as well as

appellate Court is challenged by the Respondent no. 1 in this

Court by filing Civil Revision Application No. 382 of 2017.

12-wp.12781.2019.doc

Learned Single Judge passed following order on 20th February

2018 in the said revision.

"1. Heard the learned counsel for the parties. It appears that the issues with regard to the bonafide requirement of the Respondent-landlord and of non-user of the suit premises would require a consideration at the final hearing.

2. Hence, Rule.

3. Till the final disposal of the revision, the execution proceeding, if any, filed by the Respondents shall remain stayed. Hearing expedited.

4. List this petition on the "Final Hearing" board in the week commencing from 26th March 2018."

(Emphasis added)

6. It is very significant to note that although this Court

stayed the execution by order dated 20th February 2018,

Execution Application (St.) No. 816 of 2018 is filed by the

Petitioner on 14th September 2018. In the said Execution

Application, the Executing Court passed following order:

"None present when called. Record shows that decree is stayed. No further progress is on record. Hence, application is kept in abeyance till the vacation of stay."

This order is impugned in the present Writ Petition.

7. It is the contention of Mrs. Irani that the Cross-Objection

is a separate proceeding and therefore although there is stay

to the decree on the ground of bonafide requirement and

acquisition of alternate premises, the decree passed on the

12-wp.12781.2019.doc

ground of non-user has not been stayed. She submitted that

as Appeal filed by the tenant and Cross-Objection by the

landlord are two separate proceedings, two separate Civil

Revision Applications are required to be filed. She submitted

that as only one Civil Revision Application is filed, the decree

passed by the trial Court is stayed and decree passed by the

Appellate Court in Cross-Objection on the ground of non-user

is not stayed.

8. It is true that the Respondent-original tenant has filed

only one Civil Revision Application bearing No. 382 of 2017.

However, in the said Revision Application inter alia judgment

and decree dated 9th February 2017 passed by the Appellate

Court of Small Causes Court, Bandra, Mumbai is challenged,

by which the appeal was dismissed and Cross-Objection was

allowed.

9. Learned Single Judge of this Court specifically recorded

in the order that the issues with regard to the bonafide

requirement of the Respondent-landlord and of non-user of

the suit premises would require a consideration at the final

hearing and further directed that till the final disposal of the

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revision, the execution proceeding shall remain stayed. Thus

there is no infirmity in the impugned order passed by the

Executing Court.

10. It is significant to note that the learned Single Judge has

specifically made reference to both the issues namely

bonafide requirement and non-user of the suit premises. The

ground of non-user is subject matter of Cross-Objections filed

by the Petitioner before the Appellate Court. The contentions

raised on behalf of the Petitioners that there are two separate

decrees, one on the ground of bonafide requirement and

another on the ground of non-user and decree on the ground

of non-user is not challenged in the aforesaid Civil Revision

Application filed before this Court and therefore decree on the

ground of non-user is not stayed are without any basis. After

the Cross-Objections are allowed, the effect is that the Trial

Court's decree merges with the appellate Court decree and

therefore the effect of the same is that the suit is decreed on

all the grounds including non-user. Therefore, the contention

raised by the learned counsel appearing for the Petitioners

that there are two separate decrees and only one decree is

stayed is without any basis.

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11. It is further significant to note that this Court stayed the

execution by order dated 20th February 2018 and thereafter

execution proceedings without disclosing the order passed by

this Court are filed on 14th September 2018. In any case

proceeding with the execution proceeding and insisting that

decree on the ground of non-user be executed is abuse of the

process of law. The same is totally contrary to the order

dated 20th February 2018 passed by this Court. The present

Petitioners are arrayed as Respondents in said Civil Revision

Application No. 382 of 2017 and appeared through Advocate.

Thus, the Petitioners are aware about the order dated 20th

February 2018 granting stay to the execution. Thus filing of

execution proceeding and even this Writ Petition challenging

the order of Executing Court keeping in abeyance execution

proceedings as the decree is stayed is also abuse of the

process of law. Therefore this petition is dismissed with cost

of Rs.25,000/-. The said cost be paid to Kirtikar Law Library

within three weeks from today.

BHALCHANDRA (MADHAV J. JAMDAR, J.) GOPAL DUSANE

Digitally signed by BHALCHANDRA GOPAL DUSANE Date: 2022.10.03 17:27:49 +0530