1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8112 OF 2009 HAJRABAI SAHEBKHAN PATHAN AND ORS VERSUS SHAMIM AHMED MOMIN AND ORS ... Shri R.L.Kute, Advocate for the petitioners and Shri S.K.Shinde, Advocate for respondent No.1. ... CORAM : S.B.DESHMUKH,J. Dated : 3.3.2010 PER COURT :- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith. 3. This petition is by the defendants in Regular Civil Suit No.396 of 2008. Copy of the plaint is on record at Exhibit "A". This suit is filed by respondent No.1 - original plaintiff. (Parties, hereinafter, for the sake of convenience, are being referred to their original status in the suit.). Respondent No.3 and Advocate appointed as a Receiver is a stranger to the suit. Copy of the plaint describes the suit property as the house property. Description is given in paragraph No.1 of the plaint. Suit 2 property consists of two rooms admeasuring 41.53 sq. meters. There is no dispute amongst the parties on this point. In paragraph No.2 of the plaint, a statement is made by the plaintiff that the suit property was owned by her husband. He had purchased the said property. He died and plaintiff inherited the suit property being his widow. Her name is recorded in the record maintained by the local authority. The suit property was earlier occupied by the tenant. After demise of her husband, plaintiff sought eviction of the tenant by filing Regular Civil Suit No.381 of 1985. Suit was decreed on 30.11.1988. Tenant / defendant of that suit, dragged the plaintiff uptil High Court by filing Writ Petition No.2210 of 2006. He did not stop there. He filed LPA No.41 of 2006, which came to be dismissed by the learned Division Bench of this Court on 26.2.2008. When the learned Division Bench dismissed the LPA, learned counsel appearing for the appellant (tenant / defendant in the suit) sought extension of stay, enabling the appellant to approach the Honourable Supreme Court. Three week's further extension was granted by the learned Division Bench. Mentioning all these events in paragraph No.2, the plaintiff has further pleaded that after receiving the possession in Regular Darkhast No.28 of 1989 on 2.5.2008 through the Civil Court, the plaintiff kept her household articles / belongings in the suit property. At that time, she was residing at village Sinner, which is around 35 kms. away from Sangamner i.e. the suit property. On 19.5.2008, plaintiff, to her surprise, received a notice 3 from the defendants in the suit through Advocate. It was replied by her on 31.5.2008, denying all the contentions. During this period, according to the plaintiff, the suit property was locked and she was residing at Sinnar. She further pleaded in paragraph No.2 of the plaint that on 18.8.2008, defendants in the present suit have illegally and unauthorisedly broke open the lock of the suit property, disposed of the household articles and took over the possession illegally. She was manhandled and threatened. She, therefore, approached the police authorities i.e. the City Police Station, Sangamner. No heed was paid. She complained to Superintendent of Police, Ahmednagar but in vain. She approached the District Magistrate / Collector, Ahmednagar on 28.8.2008 and various another authorities but no crime was registered, no relief was received by her. Ultimately, by following the democratic principles, she gave notice of fast unto death. Crime No.175 of 2008 under sections 380, 452, 457 read with 34 of Indian Penal Code was registered. Some of the defendants were arrested. Despite registration of the offence, the defendants continued with their illegal and unauthorised possession. Therefore, the plaintiff filed the suit under section 6 of the Specific Relief Act, seeking possession of the suit property. It was filed on 15.9.2008. 4. Suit filed by the plaintiff has been opposed by defendants after filing their written statement Exhibit "B" (Page 26). I am not referring the pleadings in the written statement but only noticing the date of filing as 13.1.2009. 4 5. The suit filed by the plaintiff has been followed by an application for appointment of the Receiver (Exhibit "C"). The pleadings in paragraph No.2 of the suit, virtually, are repeated in this application. Prayer made is for appointment of the Court Commissioner. 6. The trial Court, after hearing the parties, allowed the application by the order dated 27.6.2009. Receiver came to be appointed. Detailed order is passed. Considering the nature of the accusation, brought before the Court, the trial Court thought it fit to aid the receiver to seek the police help. 7. The order passed by the trial Court below Exhibit 5 on 27.6.2009 was challenged by the aggrieved defendants by filing Misc. Civil Appeal No.29 of 2009. This appeal, after hearing the parties, came to be dismissed by the first appellate court. Exhibit "E" is the copy of the judgment of the first appellate Court dated 19.9.2009. The first appellate Court agreed with the judgment of the trial Court. 8. Affidavit in reply of respondent No.1 (Plaintiff) is on record. She claims to be 61 years old and hapless lady. Along with this affidavit copy of the judgment of the learned Division Bench in LPA no.46 of 2006 is annexed at Annexure "R-1". 5 9. Learned counsel for the petitioners, on instructions, makes a statement that the petitioners shall not create third party interest in the suit property. The suit filed by the plaintiff is only for possession of the suit property. If the plaintiff is worrying about the creation of third party interest, statement made by the learned counsel for the petitioners, on instructions, can safeguard the interest of the plaintiff. He submitted that at the interim stage, no final relief can be granted by the court. According to him, the order impugned is illegal and needs to be quashed and set aside. 10. Learned counsel appearing for the respondents supported the orders passed by the trial Court and first appellate Court. In support of his submission, he also relied upon the judgment of the learned Single Bench of this Court. 11. From the material on record, the trial Court recorded a finding that the plaintiff, who was dragged in the litigation for seeking possession of small house property against the tenant for years together, cannot be considered to be a person who has allowed the defendants to occupy the property lawfully. The erstwhile litigation of the plaintiff was amongst herself as a landlady and person who was claiming the status of a tenant. Said tenant has no concern with this proceeding. The inference drawn by the trial Court based on the material cannot be faulted with. It is observed by the Court below that there is no criminal antecedent so far 6 as the plaintiff is concerned. The registration of crime against the defendants is also noticed. 12. The judgment of the learned Single Bench of this Court relied upon by the learned counsel for the petitioners is in the matter of Tarla N.Morjaria and others Vs. Bipin Hiralal Shah and another [2006 (5) Mh.L.J.516]. It appears that it was a notice of motion for direction to defendants to pay to plaintiffs a sum of Rs.9653/- per month by way of mesne profits / compensation for illegal use and occupation of the suit property, situated at Mumbai. An injunction was sought by the plaintiffs therein in that proceeding against the defendants from transferring, alienating, dispose of or creating third party interest pertaining to the suit property. Prayer was also made for appointment of the Court Receiver for taking possession of the same from defendants and handing it over to the plaintiffs. Preliminary issue, after completion of the pleadings, was settled in that proceeding pertaining to the jurisdiction of the court to entertain and try the suit. Commissioner was appointed to record the evidence. At this stage, the plaintiffs in that suit, sought the interim relief. In paragraph No.4, the learned Single Judge of this Court has observed that the defendants' contention was of sub tenancy. There the grievance was that the Small Causes Court would have the jurisdiction to decide the relationship between the plaintiffs and defendants. There were two preliminary issues framed by the Court. Evidence was led. In 7 paragraph No.11, the learned Single Bench of this Court has considered the evidence led and recorded a finding that there is no substance in the contention of the defendants in that suit that the Court has no jurisdiction. On issue No.2, in paragraph No.13, this Court has recorded a finding that the plaintiffs have proved that they are owners of the suit property. I have considered paragraph No.14, pertaining to grant of interim relief. On this background, in paragraph No.15, learned Single Bench of this Court has observed that defendants shall be appointed as agents of the Court Receiver in respect of the suit premises. I have considered entire judgment of the learned Single Bench relied upon by the learned counsel for the petitioners Every judgment of the higher Courts is a precedent for facts brought before the court and questions of law raised in that particular case. After considering the entire judgment, in my view, that judgment absolutely has no application to the facts obtaining in the case on hand. 13. Learned counsel for the respondents relied upon the judgment of the learned Single Bench of this Court in the case of Anwar Faramosh Khan Vs. Mahendrakumar Jugalkishore Gupta [2004 (3) Mh.L.J. 315]. In this judgment, the facts have been listed in paragraph No.2. It appears that the plaintiff filed a suit No.29 of 2002 on 27.12.2001 under section 6 of the Specific Relief Act, alleging that he has been unlawfully disposed of from the suit property by defendant No.2 on 9.12.2001. In 8 that matter, it was land around 2499 sq. yards. The entire property, it has been recorded that known as "Gupta Compound" consisting of two bungalows, one on the front side and another behind it. In paragraph No.4, the learned Single Bench of this Court has referred to the pleadings of the plaintiff. In paragraph No.7, it has been observed that the affidavit of defendant No.1 is filed on record, claiming to be the owner of the suit property. There is also a reference to the agreement dated 27.1.1986. Two points, which arose for consideration, are recorded in paragraph No.8 of the judgment. In paragraph No.9, it has been observed that all the parties have filed their affidavits, counter affidavits and affidavits in rejoinder. In paragraph No.12, it has been observed that int he suit for possession under section 6 of the Specific Relief Act, it is not necessary to consider the nature of the title claimed by the parties and consideration is who was in possession of the suit property on a particular date as claimed by the plaintiff. I have seen paragraph No.16 of the judgment. In paragraph No. 17, the learned Single Bench arrived at a conclusion that in the facts and circumstances, it would be just, convenient and appropriate to pass interim order for appointment of the Receiver. What is significant in this paragraph No.17 is the observation made by the learned Single Bench of this Court, which reads as under :- " ..... A message must be sent, loud and clear, that Courts of law are not helpless when a person is dispossessed by another person taking law in his own hands and the judicial 9 delays would not prevent restoration to a person when it is found that the person has been dispossessed without due course of law....." In this paragraph alone, the learned Single Judge has made a reference to the judgment of the Honourable Supreme Court in the case of Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao [AIR 1989 SC 2097] and judgment of the Honourable Privy Council in the matter of Midnapur Zamindary Co. Ltd. Vs. Naresh Narayan Roy [AIR 1924 PC 144]. The Honourable Privy Council, which is quoted in paragraph No.17 of the said judgment of the learned Single Bench, has observed; "..... In India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." 14. In both the judgments of this Court, which I have referred to, I found that the proceedings were finally decided. Both the properties are situated within the limits of Mumbai or in the vicinity of Mumbai. In second judgment i.e. in the case of Anwar Faramosh Khan (supra) similarity is that it was a suit under section 6 of the Specific Relief Act, as it is in the case on hand. In the case on hand, the suit is still pending before the trial Court. The grant of interim mandatory injunction, has its own consequences. The power is with the Court. This power has to be exercised judiciously This power can be equated with the appointment of the Receiver under Order XL. 10 15. The conduct of the plaintiff is a law abiding person. Initially, she was required to file a suit against the tenant. She successfully obtained the possession through the lawful authority. I am not examining the pleadings of the defendants / petitioners in their written statement for the simple reason that the suit is to be decided by the trial Court on the material or evidence brought by the parties, but then, prima facie, nothing is on record, at this interim stage to show that defendants had entered into possession of the suit property legally. This finding is recorded by both the Courts and that is, in my opinion, sufficient for the Courts to exercise their discretionary jurisdiction to set the wrong at right at the interim stage and not in directing the law abiding person / plaintiff to wait for indefinite period of time i.e. till disposal of the suit. In all and all, the judicial discretion has been justifiably exercised by the trial Court based on the material produced and considering the provisions of law. On appeal, the first appellate Court found no case for substitution of the judicial discretion and dismissed the appeal. This is probably third time for the present plaintiff to visit this Court. All these three times, facts on record, shows that it was thrusted upon the plaintiff meaning thereby that the plaintiff did not file any proceeding in the High Court earlier against the tenant and present time against the defendants. 16. This petition is invoking extra ordinary jurisdiction of this Court under the Constitution. I find no substance in the submission of the 11 learned counsel for the petitioners on instructions, that the petitioners shall not create a third party interest. By making such statement, the defendants are neither obliging the plaintiff nor a statutory provision. Such statement is made only to suit their illegal occupation in future for indefinite period of time, which prima facie, so held by both the Courts. Such a statement, therefore, I am not accepting. 17. Writ Petition, being devoid of substance, stands dismissed. Rule discharged. No order as to costs. The trial Court shall decide the suit in accordance with the provisions of law and material brought on record by the parties. ( S.B.DESHMUKH, J.) ... akl