1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3120 OF 2009 Madhavlal N. Pittie. ..Petitioner. V/s. Bhargav Borkar & Ors. ..Respondents. Mr.A.V.Anturkar with D.A.Chhapgar i/b. M/s.D.J.Kamdin & Co. for Petitioner. Mr.Girish K. Vora with Mr.R.M.Sharma for Respondent Nos. 1 and 2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 30, 2009. DATE : MARCH 30, 2009. DATE : MARCH 30, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Vora waives notice for Respondent Nos. 1 and 2, who are the contesting parties, who had filed Application Exh. 26 before the Appellate Bench of the Small Causes Court, on which the impugned Judgment and Order has been passed on 26th February, 2009. As short question is involved, Petition is taken up for final hearing forthwith by consent. 3. The said Application Exh. 26 was filed by the Respondent Nos.1 and 2/obstructionist Nos. 1 and 2 2 before the Appellate Bench of the Small Causes Court in the Appeal, which was pending before that Court against the decision on the Obstruction notice No.58 of 2005. There is chequered history in the present case, which it is not necessary to be adverted to at this stage and particularly, for the nature of order that I propose to pass. 4. Suffice it to observe that the said Application Exh. 26 is filed by the Obstructionists for interim relief during the pendency of the Appeal filed by them. The said Application has been allowed and the Appellate Bench thereby restraining the Petitioner(Respondent No.1 in the appeal) from obstructing possession of the Respondent Nos. 1 and 2(Appellants in the appeal) in the suit premises directly or indirectly in any manner. The Petitioner had filed suit for eviction against the Judgement Debtors. A decree for eviction was passed in the said Suit, which has been confirmed right upto the Supreme Court. It is in the execution proceedings in relation to the said decree, the Respondent Nos. 1 and 2 caused obstruction. In the circumstances, the subject Obstruction Notice No.58 of 2005 was taken out, which has been decided in favour of the Decree-holder on clear finding recorded that the 3 obstructionists were never in possession of the suit premises. This finding is made subject matter of challenge in the appeal, which is pending for hearing. In the meantime, the Appellate Bench by the impugned Judgment has considered prayer for interim relief. It has referred to some of the observations made by the Executing Court while dealing with the obstruction notice to decide the point in issue. The grievance of the Petitioners before this Court is essentially threefold. 5. The principal grievance is that the Appellate Bench has glossed over the crucial argument of the Petitioner although it has adverted to it, that the Respondent Nos. 1 and 2 are precluded from asserting that they were in possession of the suit premises in view of the admission given by the Respondent Nos. 1 in his evidence, portion whereof is extracted in paragraph-42 of the Writ Petition. The Respondent No.1 has candidly accepted that neither he nor obstructionist No.2 has had any concern with the running business in the suit premises. Moreover, the Respondent No.5 Gulam was the manager appointed by the Judgment Debtor. This crucial admission would answer the point in issue against the obstructionists. The second grievance of the 4 Petitioner is that the Appellate Bench has selectively referred to the finding of the trial Court in Obstruction Notice to form its prima facie opinion that the Respondent Nos. 1 and 2 were in fact in possession of the suit premises. The third grievance of the Petitioner is that the Appellate Bench has completely glossed over the crucial fact that the Respondent No.5 Gulam was working as servant or manager of the Judgment Debtor and the Respondent Nos. 1 and 2 cannot get any benefit on account of that established fact. 6. Although the Counsel for the Respondent Nos. 1 and 2 has attempted to support the conclusion reached by the Appellate Bench in the impugned decision, in my opinion, the fact that the Appellate Bench has not examined the efficacy of the admission of the Respondent No.1, as is extracted in paragraph-42 of the Writ Petition, the appropriate course is to set aside the impugned Judgment and instead relegate the parties before the Appellate Bench of the Small Causes Court for reconsideration of Application Exh.26 on its own merit in accordance with the law. It is for the Appellate Court to consider the efficacy of the admissions given by the Respondent No.1 Bhargav during his evidence and 5 inspite of those admissions, is it open to the said Respondent Nos. 1 and 2(obstructionists) to contend to the contrary. Besides, since the parties are being relegated, the Appellate Court may also consider the grievance of the Petitioner that the observations made by the Executing Court cannot be selectively referred so as to give distorted version of the factum of possession of obstructionists in respect of suit premises. All those questions will have to be considered on its own merits by the Appellate Bench of the Small Causes Court afresh. 7. Accordingly, the impugned Judgment and Order is set aside and instead the Application Exh. 26 is restored to the file of the Appellate Bench of the Small Causes Court, to be reconsidered on its own merit in accordance with the law. All questions in that behalf are left open. The parties shall appear before the Appellate Bench of the Small Causes Court on 6th April, 2009 when the Appellate Bench may proceed to hear the said application on the same day or such other day, as may be convenient to it and finally dispose of the same on or before 30th April, 2009. Indeed, it will be open to the Appellate Bench to consider the request of the Respondent Nos. 1 and 2 that instead of proceeding to decide this 6 application, the appeal itself be disposed of on or before 30th April, 2009. The Appellate Bench, if so advised, may opt for that course, if it is convenient to it. Else the restored Application be disposed of finally within the specified time. 8. In the mean time, the parties shall maintain status quo as of today with regard to the suit property till any further order to be passed by the Appellate Bench of the Small Causes Court. 9. Needless to observe that the Appellate Bench shall decide the restored Application on its own merit in accordance with the law, uninfluenced by any observations made in the impugned Judgment or for that matter the present order. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)