1 wp5287.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5287 OF 2011 Mrs. Lila Jayanti Rathod & ors. ....Petitioners Vs. Amum Builders. ....Respondent. Ms. Sonal, a/w Mr. Sanjay Jain, i/b. Zohair & Co. Advocate for petitioners. Mr. P.S. Dani, a/w. Mr. A.I. Gala i/b. M/s. K.P. Gala, Advocate for Respondent. CORAM:- GIRISH GODBOLE, J DATED:- AUGUST 23, 2011 P.C. 1. Heard Ms. Sonal, Advocate for Petitioners and Mr. Dani, Advocate for Respondent. 2. Rule. Rule made returnable forthwith and heard by consent of the parties. Mr. Dani waives service on behalf of the Respondent. 3. What is impugned in this Writ Petition filed under Article 227 of the Constitution of India is the Order dated 7/5/2011 passed by the learned 2 wp5287.11 Judge of the Court of Small Causes, at Mumbai presiding in C.R. No. 23 rejecting the Applications below Exh. 134 and 135 in Obstructionist Notice No. 5 of 2007 in R.A.E. & R. Suit No. 1628/5893 of 1982. By the said order the prayer of the Petitioners for being deleted from the array of the parties in Obstructionist Notice No. 5 of 2007 has been rejected. Issues in Obstructionist proceedings are already framed and the trial has commenced. The question as to whether the Obstructionist are bound by the Decree and as to whether the building in which Obstructionists are residing is governed by the Consent Decree or not is an issue which is required to be decided by the Trial Court in the said proceedings. However, following observations in paragraph 7 of the impugned Judgment which are quoted below were really not necessary for deciding the application Exh. 134 and 135 : “Therefore, a property under the execution of decree can be easily identified as per the said schedule itself. The record also shows that the names of these obstructionist are present in conveyance deed, as the occupants. No doubt, in consent terms there is mentioned only about “Dadi House”. But if Rathod Chawl is within the area of a property for which the original decree has been passed, then definitely the said decree is become executable against these obstructionist also.” 4. The said observations were completely unnecessary, particularly when the learned Judge of the Trial Court has observed in paragraph-8 3 wp5287.11 that according to the obstructionists, their premises and the property under execution are not identical and were different one and that the parties will have opportunity to lead evidence. Hence, the said observations quoted above could not have been made by the learned Judge of the Trial Court and it is therefore clarified that the said observations will not bind the Trial Court or the parties and will stand deleted. 5. The Advocate for the Petitioners further contends that even while hearing interim application regarding deposit and in the Writ Petition filed in this Court being W.P. No. 4826 of 2010 and the SLP, it was their case that their premises are not governed by the Consent Decree and, hence, the further observations in paragraph-7 of the impugned Judgment were therefore uncalled. There is merit in this submission and it deserves to be accepted. It is clarified that since the entire obstructionist notice is now being heard, issues have been framed and the parties have agreed to frame 3 additional issues as issue Nos. 10, 11 and 12; even the aforesaid observations must be held to be unwarranted and will not influence the Trial Court at the time of deciding the obstructionist proceedings. 6. The Advocate for the Petitioners and the Respondent have placed 4 wp5287.11 on record the additional issues to be numbered as 10, 11, 12 under their signature for identification. The said additional issues are taken on record and by consent of the parties, the Trial Court is directed to frame the said additional issues, which will be considered alongwith the other issues so that the entire controversy involved in the obstructionist notice can be considered on the basis of the material available on record and the evidence which the parties will lead before the Trial Court. 7. In the circumstances, Rule is made partly absolute and the petition is disposed of with the following directions. (a) The following portion in paragraph-7 of the impugned Judgment and Order dated 7.5.2011 shall stand deleted. “Therefore, a property under the execution of decree can be easily identified as per the said schedule itself. The record also shows that the names of these obstructionist are present in conveyance deed, as the occupants. No doubt, in consent terms there is mentioned only about “Dadi House”. But if Rathod Chawl is within the area of a property for which the original decree has been passed, then definitely the said decree is become executable against these obstructionist also.” (b) It is clarified that the observations made by the Trial Court even in the remaining part of paragraph 7 of the impugned Judgment and Order as referred in paragraph 5 hereinabove and any 5 wp5287.11 other observations made in the impugned order are tentative observations and the said observations were made only for the purpose of deciding and rejecting the applications for deletion and the Trial Court will not be influenced by these observations at the hearing of the obstructionist notice which will be heard in accordance with law on the basis of available evidence and by ignoring the said observations. (c) The Trial Court shall frame the following 3 issues as Issue Nos. 10 to 12 : 10.Whether the Plaintiff proves that the structure known as “Rathod Chawl” forms part and parcel of the suit premises and the consent decree dated 15th June 2006 ? 11.Whether the Plaintiff proves that they are entitled to seek possession of “Rathod Chawl” in pursuance of the consent decree dated 15th June, 2006 ? 12.Whether the Obstructionist prove that they are not bound by the decree ? (d) The Obstructionist Notice will be heard and decided in accordance with law on the basis of the pleadings and the evidence which will be led by the parties. (e) Subject to above clarification and modification, the order dismissing the Application Exh. 134 and 135 is not interfered with. Parties to bear their own costs. 6 wp5287.11 8. It is clarified that deletion of part of paragraph-7 of the impugned order or clarification of the remaining part of paragraph-7 shall not be construed as an expression of opinion on merits of the controversy involved in the Obstructionist Notice nor will it be construed that such observations amount to acceptance of the case of the Petitioners that their premises are not governed by the Consent Decree and it is obvious that the said issue has to be considered by the Trial Court on its own merits. (GIRISH GODBOLE, J)