Bombay High Court
Naigaon Cooperative Housing Society ... vs Sunanda W/O Ramakant Desai (Deleted) ... on 3 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:21041
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14904 OF 2023
Naigaon Co-operative Housing Society Ltd. ....Petitioner
V/S
Sunanda Ramakant Desai (deleted) & Ors. ....Respondents
_________
Mr. Rajesh Kachare a/w Ms. Sonal Dabholkar for the Petitioner.
Mr. P.K. Dhakephalkar, Senior Advocate i/b Mr. Ajit A. Kocharekar for
Respondent Nos.2, 5, 6 and 7.
Mr. Shriram S. Redij for Respondent Nos.9(A) to 9(C).
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 03 MAY 2024.
P.C.:
1 Petitioner-Society has filed this Petition challenging the judgment and
order dated 29 March 2023 passed by the Appellate Bench of the Small
Causes Court at Mumbai dismissing the Execution Appeal No.229 of 2022
and confirming the order dated 5 August 2022 passed by the Court of Small
Causes on Application at Exhibit-13 filed in Execution Application No.74 of
2020. With the result Petitioner's application filed under provisions of Order
XXI, Rule 97 of the Code of Civil Procedure, 1908 (the Code) to obstruct
execution of the decree has been rejected.
2 Heard Mr. Kachare, the learned counsel appearing for the Petitioner,
Mr. Dhakephalkar, the learned Senior Advocate appearing for the Respondent
Nos.2, 5, 6 and 7 and Mr. Redij for Respondent Nos.9(A) to 9(C).
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3 It appears that Smt. Sunanda Ramakant Desai and others instituted
RAE & R Suit No.46/83 of 1992 against Shri Kashinath R. Kolwankar for
eviction claiming that the Plaintiffs therein are landlords and Shri Kashinath
R. Kolwankar was their tenant. The Plaintiffs' suit for eviction of
Shri Kashinath R. Kolwankar came to be dismissed by the Small Causes Court
on 4 February 2008. In Appeal No.245 of 2008, the Appellate Bench of the
Small Causes Court however reversed the order of the Trial Court and
decreed the RAE & R Suit No.46/83 of 1992 and directed the Defendants to
handover vacant and peaceful possession of the flat No.F2. It appears that the
Civil Revision Application filed by Shri Kashinath R. Kolwankar is pending
before this Court.
4 When the decree of the Appellate Bench was put for execution,
Petitioner-Society filed an application under Order 21, Rule 97 of the Code to
obstruct execution of the decree claiming that the Society is not just owner of
the entire land and building but also has juridical possession of flat No.F2. It is
Petitioner-Society's contention that the said flat was allotted by the Society to
Shri Kashinath R. Kolwankar as its member and that in the event Shri
Kolwankar is to be evicted, the Society must receive possession of the flat. It is
Society's contention that Desais have absolutely no concern with the said flat
and that they are not entitled to receive possession thereof. It appears that the
Petitioner-Society has already filed multiple proceedings in various courts
asserting its title, ownership and possessory rights in respect of various flats in
the building including Flat No.F2. The said proceedings are pending. In those
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proceedings, Petitioner-Society has sought a relief of recovery of possession
of flat No.F2 from Desais.
5 It appears that the tenant Shri Kashinath R. Kolwankar also raised a
similar defence which Mr. Kachare raises before me that Shri Kashinath R.
Kolwankar was infact allotted the flat in his capacity as member of the
Petitioner-Society. The said defence appears to have been repelled by the
Small Causes Court and Appellate Bench and would be considered in pending
Revision Application. In that view of the matter, Petitioner-Society cannot be
permitted to raise that defence to obstruct execution of the decree.
Admittedly, Petitioner-Society is not in actual possession of the suit flat. What
it contends in that upon eviction of tenant Shri Kolwankar, the Petitioner-
Society must get possession of the flat and for that purpose obstructionist
application is filed by the Society. Thus what the Petitioner-Society seeks in
an indirect manner is possession of flat No.F2 from Desais, for which it has
already filed proceedings. In my view, Petitioner-Society cannot be permitted
to obtain possession of the suit flat from the tenant in an indirect manner. If
the Petitioner-Society is the owner in respect of the suit flat or is entitled to
claim possession from Desais, it will have to await decision of the proceedings
filed by it for seeking recovery of possession from Desais. In my view, no error
is committed by the Small Causes Court or by its Appellate Bench in rejecting
Petitioner-Soceity's application under Order XXI, Rule 97 of the Code. No
patent error can be traced in the orders passed by the Small Causes Court and
Appellate Bench. Writ Petition is being devoid of merits, is dismissed without
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any order as to costs. All rights and contentions between the Petitioner-
Society and Desais' about right, title and/or possession in respect of the Flat
No.F2 are kept open to be decided in appropriate proceedings.
(SANDEEP V. MARNE, J.)
