-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.345 OF 2007 APPEAL NO.345 OF 2007 APPEAL NO.345 OF 2007 Amzel Pvt.Ltd. & Ors. ...Appellants vs. The Trustees of the Port of Bombay and others ...Respondents Mr.G.S.Godbole i/b Mr.S.R.Bhalekar for the Appellant Ms Preeti Shah i/b M/s.Mulla & Mulla for the Respondent CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : JANUARY 18, 2008 : JANUARY 18, 2008 : JANUARY 18, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. By order dated 1st November 2007, this court directed that the Appeal shall be decided finally at admission stage. 2. The challenge in this Appeal is to the Judgment and Order dated 24th January 2007 passed by the learned Judge of the City Civil Court, Mumbai in the Chamber Summons taken out by the first Respondent. The first Respondent filed a suit against the second to ninth Respondents herein for declaration that the lease granted by the first Respondent in favour of the father of the second to ninth Respondents has been duly terminated. The first Respondent prayed for a decree for possession. On December 11, 1970 a decree for possession was passed in favour of the first Respondent. The decree was put to execution by the first Respondent and a warrant of possession was issued by the trial court on 30th April 2003. The Appellants obstructed the execution and therefore the first Respondent was required to take out the chamber summons -2- being the chamber summons No.1230 of 2003 under the provisions of Rule 97 of Order XXI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). The prayer in the said chamber summons was for removal of obstruction. The said chamber summons was dismissed. However, an order of remand was passed by this court. According to the case of the Appellants, they applied before the trial court for framing issues and for adducing evidence. An order was passed on 15th January 2007 by the trial court holding that the framing of issues was not necessary. However, the trial court directed the Appellants and the first Respondent to appear before the court and to adduce evidence, if any. By the impugned Judgment and Order, the learned trial Judge made the chamber summons absolute by directing the removal of obstruction. 3. The submission of the learned counsel for the Appellants is that the chamber summons taken out by the first Respondent ought to have been tried as a suit as the order passed on the chamber summons is in the nature of a decree. He submitted that though under the earlier order the trial court permitted the parties including the Appellants to lead evidence, while passing the impugned order, the learned Judge declined to allow the Appellants to lead evidence. He submitted that according to the case of the Appellants, they were in possession of the suit premises on the basis of a leave and licence agreement executed in their favour on 1st April 1970 by the lessee of the first Respondent. He submitted that from -3- 1st April 1970 the Appellants have been paying rent. He invited my attention to the various averments made in the Affidavit of 3rd Appellant filed before the trial court. He pointed out that as per the policy of the first Respondent, the Appellants had approached the first Respondent for regularisation/compromise and the Appellants have made payment of a substantial amount to the first Respondent. He invited my attention to the correspondence made by the parties. According to him, the Appellants are entitled to protect their possession in terms of their policy of the first Respondent. 4. The learned counsel for the Appellants placed reliance on the decision of the Apex Court in case of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another [(1997) 3 S.C.C. page 694]. He also placed reliance on another decision of the Apex Court in case of Shreenath and another vs. Rajesh and others (A.I.R. 1998 S.C. 1827). Lastly, he placed reliance on the decision of the Apex court in case of Tanzeem-E-Sufia Vs. Bibi Haliman and others [(2002) 7 S.C.C. page 50]. He submitted that in terms of the earlier order passed by the learned trial Judge, the Appellants were entitled to lead evidence. He submitted that the learned trial Judge declined to grant permission to the Appellants to lead evidence. He, therefore, submitted that the impugned order deserves to be quashed and set aside. 5. The submission of the learned counsel for the first -4- Respondent is that it is not necessary in every case that the obstructionist should be given an opportunity to adduce evidence while deciding the proceedings under Rule 97 Order 21 of the said Code. She submitted that the scope and nature of the enquiry of such proceedings always depends on the nature of the claim made by the obstructionist. She submitted that in the present case the Appellants are admittedly claiming through the Judgment Debtor and the first Respondent has denied having entered into any compromise with the Appellants. She therefore submitted that there was no question of the Appellants being permitted to lead any evidence and therefore, the learned trial Judge was right in rejecting the said prayer made by the Appellants. She placed reliance on the decision on the learned Single Judge of this court in case of Jagdish M.Joshi.Vs. Chandrapal and another [(2007) 1 Mh.L.J. 402]. She also placed reliance on the decision of the Division Bench in case of West Coast Paper Mills Ltd. Vs. Trustees of the Port of Bombay and others [1999 (1) Mh.L.J. page 860]. Lastly, she invited my attention to the relevant part of the decision of the Apex Court in case of Silverline Forum Pvt.Ltd. Vs.Rajiv Trust and another (A.I.R. 1998 S.C. page 1754). She submitted that in view of the law laid down in the aforesaid decisions, the learned trial Judge was justified in declining to grant an opportunity to the Appellants to lead evidence. She submitted that the amount received by the first Respondent from the Appellants is towards the arrears of compensation payable by the Judgment Debtors and therefore, no -5- right is created in favour of the Appellants on account of acceptance of the said amount by the first Respondent. She, therefore, submitted that no interference is called for with the impugned Judgment and Order. 6. I have carefully considered the submissions. It will be necessary to refer to the decision of the Apex Court in case of Brahmadeo (supra). In paragraph 9 of the said decision, the Apex Court has discussed the scheme of provisions of Rule 97 Order XXI of the said Code. The Apex court has referred to the scope of adjudication under Rule 97 of Order XXI. The Apex Court observed that all issues between the decree holder and the obstructionists are required to be decided in the said proceedings by making a proper adjudication and the said adjudication will be subject to hierarchy of Appeals. The Apex Court observed that a separate suit by the obstructionist is barred and therefore, adjudication of all disputes between the obstructionist and the decree holder is to be made in execution proceedings. Same is the view taken by the Apex Court in case of Shreenath (supra). 7. It will be necessary to refer to the decision of the Apex Court in case of Silverline Forum Pvt.Ltd. (supra). In the said Judgment the Apex Court has referred to its earlier Judgment in case of Brahmdeo Chaudhary (supra). The relevant part of the said decision relied upon by the learned counsel for the first Respondent will have to be referred to. In -6- paragraph 10 of the said decision, the Apex Court observed thus : . The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The question which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such question should have legally arisen between the parties, and the second is, such question must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree holder. In the adjudication process envisaged in Order 21 Rule 97 (2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between -7- the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section." 8. In paragraph 12 the Apex Court proceeded to observe thus: . "It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The The The adjudication adjudication adjudication mentioned therein need not necessarily mentioned therein need not necessarily mentioned therein need not necessarily involve involve involve a detailed enquiry or collection of evidence. a detailed enquiry or collection of evidence. a detailed enquiry or collection of evidence. Court Court Court can make the adjudication on admitted facts or even can make the adjudication on admitted facts or even can make the adjudication on admitted facts or even on on on the averments made by the resistor. Of course, the the averments made by the resistor. Of course, the the averments made by the resistor. Of course, the Court Court Court can direct the parties to adduce evidence for such can direct the parties to adduce evidence for such can direct the parties to adduce evidence for such determination determination determination if the Court deems it necessary." if the Court deems it necessary." if the Court deems it necessary." (Emphasis added) 9. I am not referring to the decision of the learned Single Judge of this court in case of J.Joshi (supra) as the said decision does not consider any of the aforesaid Judgments of the Apex Court. In the case of West Coast Paper Mills (supra) the Division Bench of this court has followed the decision of the Apex Court in case of Silverline Forum Pvt.Ltd. (supra). Thus, the question which arises in this case is whether the case made out by the Appellants was such that the trial court -8- ought to have permitted the parties to adduce evidence. 10. In this behalf it will be necessary to refer to an order passed by the learned trial Judge on 15th January 2006 in the same Chamber Summons on which the impugned order was passed. The said order has been passed on the application made by the Appellants praying that it was necessary to frame issue and thereafter to permit the parties to adduce evidence. In paragraph 2 of the said order, the learned trial Judge has held that it was not necessary to frame the issues, but it was necessary to adjudicate upon the claim made by the appellants. Therefore, on 18th January 2007, the parties were directed to appear before the court for adducing evidence. The relevant part of the said order reads thus : "2. Scope of enquiry under rule 97 of Order XXI of Civil Procedure Code is limited. The Court can adjudicate the points raised by the parties on the basis of admitted facts and if necessary, Court can direct the parties to adduce evidence. It is admitted fact in the present case that proposal for compromise was discussed between the plaintiff and obstructionist; but it did not materialize. In the circumstances, therefore, framing of issues is not necessary but it is essential to adjudicate the claim made by the present applicant. The obstructionists and plaintiff are directed to appear before this Court on 18/01/2007 to adduce evidence if any." -9- Thus, the learned Judge accepted the prayer made by the Appellants by granting a permission to lead evidence. However, in impugned order, the learned trial Judge has observed thus : . "It must be mentioned that the obstructionist had applied for framing issues. Arguments were heard on that application; and it was held that framing of issues is not necessary in this case. It was observed that if certain points arise for determination of the Court after hearing the arguments; and if the Court comes to the conclusion that recording of evidence is necessary; in that case evidence can be recorded. The parties were directed to keep their evidence ready, if any, with the specific object of avoiding further delay in this proceeding. This application is premature, because the Court is yet to hear arguments of the parties. The application is therefore rejected." 11. In the order dated 15th January 2006, the learned trial Judge permitted the Appellants to lead evidence. However, in the impugned order, the learned Judge observed that the parties were directed to keep the evidence ready only with an object of avoiding further delay. When the learned trial Judge had himself permitted the Appellants to lead evidence, there was no reason for the learned trial Judge to again go -10- into the question of permitting the Appellants to lead evidence. 12. It must be stated here that the case made out by the Appellants was not of a mere compromise. The case made out by the Appellants was that there was a policy of the first Respondent in existence for compromising such disputes. The learned counsel for the Appellants has invited my attention to the various documents which were sought to be tendered in evidence. Reliance is placed on a letter dated 30th September 2002 sent by the Assistant Estate Manager of the first Respondent to the legal representatives of the original lessee. A copy of the said letter was endorsed to the Appellant. The said letter itself refers to compromise policy of the first Respondent. By the said letter, the first Respondent called upon the parties to deposit certain amount. Relevant part of the said letter reads thus : "....I have to inform you that the grant of a fresh fifteen monthly lease in lieu of the expired leasehold premises on the basis of the compromise policy of the Board, pending final orders of the Hon. Supreme Court in the Appeals in the general rent revision matters pending before it, can be considered subject to the sanction of the Competent Authority on your furnishing a bond duly executed by you in the enclosed format to this MbPT towards security for the payment of the balance amounts -11- as may be finally decided by the Hon. Supreme Court in the aforesaid Appeals pending before it and on your lodging the amounts as per the liability statement (subject to audit) enclosed and on your surrendering the portions of plot affected by the proposed road widening as shown in the plan No.EM/GIS-140 of 2002 enclosed as per the undertaking given by the unlawful assignees, M/s.Amzel Pvt.Ltd. vide their letter dated 2.8.2002." 13. While endorsing a copy of the said letter to the Appellants, the Assistant Estate Manager has stated that a copy was endorsed to the appellants for information and immediate compliance. There are certain documents produced evidencing acceptance of certain documents executed by the Appellants by the first Respondent. The learned Judge has himself noted in the impugned order that a sum of Rs.10,00,000/- has been accepted by the first Respondent from the Appellant. The contention of the first Respondent is that the said amount was accepted towards the dues payable by the original lessee. The question whether the said amount was accepted by the first Respondent in terms of policy of compromise or towards dues payable by the lessee is required to be decided on evidence. Therefore, there is some material on record to show that their existed a policy of the first Respondent which provides for regularising the possession subject to compliance with certain terms and conditions. Therefore, this was a case where the appellants ought to have -12- been permitted to lead the evidence in support of their case. Therefore, the impugned order will have to be quashed and set aside and the Chamber Summons will have to be remanded to the trial court. 14. Hence, I pass the following order : i) Impugned Judgment and Order dated 24th January 2007 is quashed and set aside and the Chamber Summons No.1230 of 2003 in S.C.Suit No.5390 of 1970 is restored to the file of the trial court. ii) Parties are directed to appear before the learned trial Judge on 25th February 2008 at 11.00 a.m. iii) The learned trial Judge will permit the parties to lead evidence and will decide the Chamber Summons afresh in accordance with law. iv) All contentions of the parties on the merits of the Chamber Summons are expressly kept open. v) First Appeal is partly allowed in above terms with no order as to costs. vi) Parties and the trial court to act upon an authenticated copy of this order. -13- . On the prayer made by the learned Counsel for the Respondents, operation of this order will remain stayed for a period of eight weeks from today. JUDGE JUDGE JUDGE