1 wp9095 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9095 OF 2011 Municipal Corporation of Greater Mumbai & ors. ...Petitioners vs. Mulchand Sanghvi (deleted) Kantilal Mulchand Sanghvi & Ors. ...respondents Mr.P.G.Lad with Mr.M.M.Malvankar i/b Mr.R.A.Malandkar for the Petitioners Mr.Bharat Joshi i/b Mr.Ramesh Jain & Kusum Jain for the respondents CORAM : A.S.OKA,J. DATE : NOVEMBER 23, 2011 P.C.: 1 Heard the learned counsel for the petitioners and the learned counsel for the respondents. A suit for eviction was filed by the respondents in the Court of Small Causes. The Court of Small Causes passed a decree for possession. In the appeal preferred by the petitioners against the decree for possession, Appeal Bench of Court of Small Causes by order dated 28 th February 2011 granted stay subject to condition of the petitioners paying a sum of Rs. 20,000/- per month from the date of decree till the final disposal of the Appeal. It appears that a Writ Petition was preferred by the petitioners for challenging the said order. This Court dismissed the writ petition. It appears that the petitioners did not comply with the said order and therefore, the stay of execution of the decree for possession stood 2 wp9095 vacated. In execution, the petitioners were dispossessed on 8 th September 2011. 2 An application was filed by the petitioners before the Appeal Bench of Court of Small Causes for extension of time to deposit the arrears and for restoration of possession. By the impugned order, the said application has been rejected by the Appellate Court. 3 The learned counsel for the petitioners submitted that a municipal school was being run in the suit premises. He submitted that as the petitioners are willing to pay all the arrears at the rate of Rs.20,000/- per month and as the appeal is fixed for hearing, the possession of the suit premises be restored. He submitted that the students are suffering inconvenience as the school has been closed down. 4 The learned counsel for the respondents submitted that the building in which the suit premises are situated is already declared as dangerous for occupation by the concerned authority. He has tendered across the bar a copy of the affidavit dated 12 th October 2011 filed on behalf of the respondents to which a communication dated 30 th April 2011 issued by the Administrative Officer (Schools) of the petitioners to the Deputy Education Officer of the Petitioners has been annexed. He submitted that the said communication shows that a decision was taken to shift the school which has been substantially implemented. 3 wp9095 5 The learned counsel for the petitioners submitted that the Officer who has issued the said communication has been suspended. 6 As the order of stay stood vacated, the petitioners have been dispossessed in execution of the decree for possession. It is pertinent to note that the writ petition against the interim order of the Appeal Bench passed on 28 th February 2011 was dismissed on 8 th August 2011. The petitioners did not comply with order dated 28 th February 2011. The petitioners applied for extension of time only after dispossession. 7 Apart from the fact that section 144 of the Code of Civil Procedure,1908 cannot be invoked at this stage when the decree for possession is not yet set aside, communication issued by the Administrative Officer of the petitioners shows that a decision was taken on 30 th April 2011 to shift the school from the suit premises as the building was in dangerous condition. The said communication indicates that certain classes were also shifted. Though it is orally stated that the Officer who issued the said communication was suspended, nothing is placed on record to show that the decision to shift the school was revoked. 8 The learned counsel for the respondents on instructions states that the respondents are in possession of the suit premises and they shall not part with possession of the suit premises and shall 4 wp9095 not create any third party rights in respect of the suit premises till the final disposal of the Appeal. The statement is accepted. 9 Hence, at this stage, no case is made out for passing the order of restoration of possession. 10 Hence, I pass the following order : i) The petition is rejected. Hearing of the Appeal is expedited and the Appellate Court shall endeavour to conclude the hearing of the Appeal before the end of January 2012. ii)The statement of the learned counsel for the respondents which is recorded above, is accepted. iii)It is made clear that in the event the petitioners succeed in the appeal, the petitioners will be entitled to apply for restoration of possession under section 144 of the Code of Civil Procedure, 1908. iv)All contentions of the parties on merits of the pending appeal are kept open. v) The learned counsel for the respondents states that the respondents have no objection if articles of the petitioners lying in the suit premises are taken away by the petitioner. It will be open for the petitioners to take away articles after giving advance notice in writing to the Advocate for the respondents on record of the Appellate Court. JUDGE