1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4451 OF 2009 Vinod Madhavrao Kulkarni........ Petitioner versus Smt. Surekha Jayantilal Shah........Respondent. ALONGWITH WRIT PETITION NO. 4609 OF 2009 Smt. Surekha Jayantilal Shah ........ Petitioner versus Vinod Madhavrao Kulkarni ........Respondent. Ms. Pallavi Dabholkar adv. for the Petitioner Mr. Deepa Matwankar adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 19th November, 2009. P. C.: 1. As common question of law and fact arises in these writ petitions the writ petitions are heard together and are being disposed of by this common judgment. W. P. NO. 4451/09 2. The petitioner in Writ Petition no.4451/09 is the original defendant whereas the respondent is the plaintiff. The respondent has claimed in the suit that shed no. D-32 situated at MIDC 2 Satpur was leased by the petitioner in favour of the respondent for a period of five years with effect from 26-9-2002 till 25-9-2007. The agreed rent was Rs. 10,000/- per month. Apprehending interference in peaceful possession at the hands of the present petitioner, the respondent instituted Civil Suit bearing No. 611/02 and therein moved an application seeking temporary injunction with a view to restrain the present petitioner/defendant from dispossessing the plaintiff. The trial court granted the temporary injunction as prayed for. After the expiry of the lease period the respondent/plaintiff filed a pursis and unconditionally withdrew the suit No. 611/02. Prior to the withdrawal of the said suit the respondent instituted yet another suit bearing no. 48/08. In the second suit instituted by the respondent, it is contended that the lease period would stand renewed and at any rate the present petitioner/defendant cannot dispossess the plaintiff except in accordance with the procedure established by law as the plaintiff was in settled possession. An application for temporary injunction was also taken out in suit no. 48/08 and a show cause notice was issued. 3. It is the case of the respondent that when the show cause notice was sought to be served on the respondent, he did not accept the same and proceeded to put locks on the premises. This act of putting of locks on the premises is stated to be dated 9-2-2008. As the temporary injunction application was rendered infructuous on account of putting of locks by the petitioner on the suit premises, the respondent/plaintiff took out another 3 application seeking mandatory injunction with a view to have the locks opened and also claimed injunction against the present petitioner from interfering with the possession of the respondent/plaintiff. The said application for mandatory injunction came to be rejected by the trial court and being aggrieved thereby the respondent carried Misc. Civil Appeal No. 42/08 before the District Judge, Nashik. In the said Misc. Appeal, an application at Exh.5 was also filed wherein relief of removal of lock was claimed and a further prayer was made to restrain the present petitioner from disturbing the possession of the respondent. The District Judge allowed the application and granted interim relief as prayed for. However the said order was challenged by filing a Writ Petition in the High Court. This court set aside the interim order granting relief in a mandatory form and directed the District Judge to hear the Misc. Appeal itself within a stipulated time frame. In adherence to the time frame issued by this court, the District Judge, Nashik after affording an opportunity to the parties had decided the Misc. Civil Appeal. The first appellate court has allowed the appeal and has directed the present petitioner/defendant to remove the locks and restored the possession to the respondent. The petitioner is further restrained from creating any third party interest in the suit premises and from disturbing the possession of the respondent. It is this order passed in Misc. Civil Appeal which is challenged in the W. P .No. 4451/09. 4. The learned counsel for the petitioner has contended that in 4 Civil Suit No.611/02 the respondent had contended that the lease is for a period of five years and thus chose to claim a relief of injunction till the expiry of the lease period, and thereafter has chosen to withdraw the suit unconditionally. Hence the second suit instituted by the respondent bearing No.48/08 is barred by operation of Order 2 Rule 2 of CPC. It is next contended that there is no legal right in the respondent to continue in possession of the alleged tenanted premises after expiry of the lease and thus in the absence of any legal right, respondent cannot claim relief of temporary injunction more so in the mandatory from. 5. Per contra the learned counsel for the respondent has submitted that the first appellate court has taken a correct view of the matter in holding that the present respondent was in a settled possession of the tenanted premises in as much as, for a period of about five years temporary injunction order restraining present petitioner from interfering with the possession of the respondent was operating in civil suit No. 611/02. Even prior to the filing of the said suit, the possession of the respondent was established and thus temporary injunction order was passed in suit No. 611/02. The submission is thus that a person in settled possession whose entry is permissive, cannot be dispossessed in a high handed manner by the landlord and this, being a settled position of law the first appellate court has rightly held that the action on the part of the present petitioner in dispossessing the respondent by putting locks on the premises on 9-2-2008 was an illegal act. It is next submitted that under the original agreement of lease dated 5 26-9-2002 there is a stipulation in condition no.4 to the effect that on expiry of lease period, the lease period shall be further enhanced subject to the condition that in every subsequent year, the rent would be increased by Rs. 1000/-. Relying on condition no.4 of the agreement, the learned counsel for the respondent has submitted that the respondent has a legal right to continue in possession of course subject to compliance of condition no.4. It will not be out of place to mention at this juncture that the present petitioner is contending that the agreement dated 26-9-2002 does not bear the signature of the petitioner and the petitioner’s signature thereon is a forged signature. This issue obviously cannot be dealt with at this stage. Fact remains that the injunction order was granted in suit no. 611/02 which operated till expiry of the lease period and only thereafter the petitioner has put his locks on the premises. The question thus would be whether the present petitioner is justified in law in dispossessing the respondent on the ground that the lease period has expired and the respondent does not have any legal right to continue in possession. The first appellate court relying upon various judgments of the Supreme Court, has held that a person in settled possession cannot be forcibly dispossessed. The Appellate Court has recorded a finding of fact that the respondent has been dispossessed on 9-2-2008 in a high handed manner by the present petitioner. The view taken by the first appellate court so far as the legal position is concerned, is a correct view which does not require any interference at the hands of this court and so far as the finding of fact of 6 dispossession of the respondent by the present petitioner is concerned, the same is very much borne out from the evidence and material on record which too does not call for any interference. In the result I conclude that the impugned order in W.P No. 4451/09 does not call for any interference and thus there being no merit in the petition, W. P. No. 4451/09 deserves to be dismissed. W. P. NO. 4609/09 6. In the above set of facts the District Judge allowed the Misc. Civil Appeal vide order dated 13-3-2009, and directed the present petitioner to remove his lock put on the door of the suit property and has restrained the defendant/petitioner from creating any third party interest in the suit property till final decision of the suit. After disposal of the appeal, the respondent in W.P. No. 4451/09 (petitioner in W. P. No.4609/09) moved an application before the trial court purportedly under sec. 151 of CPC for implementation and enforcement of order passed in Civil Appeal which directed the petitioner to remove the locks. The application moved by the petitioner in W. P. No.4609/09 is referable to section 144 of CPC. Strangely enough the said application came to be rejected by the trial court by holding that the petitioner should take recourse to Order 21 of CPC for executing the appellate order dated 13-3-2009. Aggrieved by the said order passed by the trial court dated 29-4-2009 the instant petition is filed. 7 7. The learned counsel for the petitioner has contended that the trial court has failed to exercise jurisdiction vested in it by law in declining to enforce the order passed in Misc. Civil Appeal. The order ought to have been executed by the trial court as the dispossession of the petitioner was pending the suit bearing no. 48/08. Per contra the learned counsel for the respondent has contended that as the petitioner is seeking a discretionary relief in the nature of mandatory and prohibitory injunction, the petitioner need to be fair to the opponent as well. The submission is that since the execution of the agreement in the year 2002, the petitioner has not paid the rent as agreed and has also not paid the enhanced rent as contemplated by condition no.4 of the agreement. According to the petitioner/Plaintiff, rent has been paid but no receipts were issued by the respondent. The petitioner is unable to substantiate the fact of payment of rent from 26-9-2002 till date and enhancement agreed in condition no.4. The respondent has categorically denied that the petitioner has paid rent at any point of time. It is submitted that it is highly improbable for a litigating party, to continue payment of rent without obtaining the receipt. Had the respondent declined to issue the receipt, the petitioner could have either sent the amount by cheque or sought appropriate orders from the trial court to deposit the same in the court. I am in agreement with the said submission made by the learned counsel for the respondent. It is very unlikely that when a suit is pending, one of the party would pay rent to the other without obtaining a receipt. Hence with a 8 view to adjust the equities it would be in the interest of justice to direct the present petitioner to deposit the amount of rent from 26-9-2002 at the rate of Rs.10,000/- per month till the expiry of a period of five years and thereafter at the rate of Rs.11,000/- per month for the first year and for the subsequent year at the rate of Rs. 12000/- so on and so forth. The learned counsel for the petitioner has pointed out that the petitioner has already deposited a sum of Rs. One lac in the court on 12-8-2008 and a receipt indicating the said deposit is also made available for perusal. Both the learned advocates appearing for the respective parties have submitted a schedule which indicate the total amount due and payable by the petitioner to the respondent. The schedule indicates, petitioner has to pay an amount of Rs.8,76,000/-, out of which a sum of Rs. One lac as mentioned herein above has been deposited in the court by the petitioner. Thus the amount payable by the petitioner to the respondent works out to Rs. 7,76,000/-. The learned counsel for the petitioner submits that the petitioner would deposit 50% of the said sum being Rs. 3,88,000/- within a period of two weeks from today and for depositing the balance amount she seeks six weeks time. It is made clear that direction to deposit the rent/compensation is without prejudice to the contentions of parties and subject to final decision of the suit. In the result I pass the following order. 8. W. P. No. 4609/09 is allowed. The impugned order passed by the trial court dated 29-4-2009 is quashed and set aside. The respondent shall deliver the possession of the suit property to the 9 petitioner within a period of two weeks from today. The petitioner shall deposit a sum of Rs. 3,88,000/- within two weeks from today and shall deposit the balance amount of Rs. 3,88,000/- within a period of six weeks from today. 9. Immediately on deposit of 50% of the amount by the petitioner the respondent shall forthwith hand over the possession. 10. The petitioner in W. P. No. 4451/09 who is respondent in W.P. No.4609/09 is permitted to move the trial court for withdrawal of the mount after the same is deposited by petitioner in W. P. 4609/09. 11. Rule made absolute in the above terms. (A. P. Deshpande, J.)