Nilima Vijay Orkay vs Shreejee Earth Movers, Thr. ...
2023 Latest Caselaw 872 Bom

                                                       1                                  12.WP.3685-2021.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 3685 OF 2021
                           ( Nilima Vijay Orkay
                                     Vs.
        Shreejee Earth Movers, Thr. Its Partner Shri Rahul Madangopal
                                Mandana )

Office Notes, Office Memoranda                         Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. S.S. Ghate, Advocate for the Petitioner.
                                  Mr. R.M. Sharma, Advocate for the Respondent.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 25th JANUARY, 2023

Heard Mr. Ghate, learned counsel for the petitioner and Mr. Sharma, learned counsel for the respondent.

2. The petition questions the order of the Trial Court below Exh. 5 dated 13.05.2019 (page 98), whereby the petitioner landlord, has been temporarily restrained, from dispossessing the plaintiff/respondent from the tenanted premises without following due process of law till the decision of the suit. Appeal there against, has been dismissed by the learned Appellate Court by judgment dated 15.02.2021 (page 122).

3. Mr. Ghate, learned counsel for the petitioner, submits, that since there is an admitted position of licence-or licencee between the petitioner and 2 12.WP.3685-2021.odt

respondent, which is evinced, from the agreement of leave and licence dated 01.09.2011 (page 28), which was to expire on 28.02.2017 which period has lapsed, the occupation of the respondent consequent of the expiry of the above duration of time, was illegal, and therefore, the respondent was not entitled to retain and continue in possession. He however does not dispute, that in R.C.S.No. 12/2019 filed by the respondent, a counter claim has already been filed by the present petitioner, seeking a decree of possession from the respondent/plaintiff. That being the position, till the contentious issues are not decided as to the suit of the respondent and the entitlement of the petitioner /defendant for vacant possession, though it maybe claimed that the respondent, is in illegal occupation of the premise in question, the period of licence having been expired, the eviction can only be by a due process of law for which the counter claim is already filed, in view of which, I do not see any reason to interfere in the impugned order.

4. The Petition is therefore dismissed. No costs.

5. The learned Trial Court, is directed to decide the suit as expeditiously as possible.

Signed By:SHRIKANT
DAMODHAR BHIMTE                                                          JUDGE
             SD. Bhimte
Signing Date:27.01.2023 18:47