: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.16 OF 1994 IN CHAMBER SUMMONS NO.242 OF 1988 IN SUIT NO.5624 OF 1953 Laxmidas T. Merchand & Anr. ....Appellants V/s. Ramdas Gayadin & Ors. ....Respondents Ms.Rina K. Pujara for the Appellant. Mr.R.R. Arolkar for the Respondents. CORAM : A.P. SHAH AND CORAM : A.P. SHAH AND CORAM : A.P. SHAH AND S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. DATED : 8TH APRIL, 2005. DATED : 8TH APRIL, 2005. DATED : 8TH APRIL, 2005. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT (PER S.J. VAZIFDAR, J.) : This is an Appeal filed by the Plaintiffs against the order of the learned single Judge passed in the Chamber Summons taken out by Respondent Nos.1 to 6 and/or their heirs. Respondent Nos.4 and 6 are now represented by their respective heirs. Respondent Nos.7 to 11 are the original Defendants (wrongly described in the Memo of Appeal as original Applicants/Claimants). For convenience we will refer to Respondent Nos.1 to 6 as the Applicants and : 2 : Respondent Nos.7 to 11 as the Defendants. 2. The above Chamber Summons was taken out by the Applicants under the provisions of Order 21 Rule 99 of the Code of Civil Procedure for a declaration that the consent terms dated 27.11.1978 between the Appellants and the Obstructionist Nos.1 to 130 therein filed in Chamber Summons No.566 of 1977 in the above suit are not binding upon the Applicants and for order directing the Appellants/Plaintiffs to restore to the Applicants their original premises described in Annexure-1 to the Chamber Summons and in the alternative for an order directing the Appellants to provide alternative premises of similar area in the proposed new building. 3. It is necessary at the outset to state the facts leading to the Applicants filing the above Chamber Summons in which the impugned order and judgment was passed. Appellant No.1, M.H. Sampat and original Plaintiff No.2 were the owners of the property admeasuring 3000 sq.yards at Lower Parel, Mumbai. The present Appellant No.2 is the son of original Plaintiff No.2. There were admittedly a number of : 3 : tenants on the property each of whom occupied separate hutments/structures. . In 1948, the Appellants filed 162 suits in the Small Causes Court for evicting the tenants on the said property. The Appellants obtained decrees in these suits and these decrees were executed and the Appellants allegedly recovered the possession from the said tenants. On the intervention of one Purushottam Trikamdas, the Plaintiffs agreed to give a portion of the land on leave and licence basis to the said tenants. It was contended before the learned single Judge as well as before us that the Plaintiffs did so on the condition that all such persons would be represented by five persons namely the Defendants. We shall deal with this a little later while considering the disputes between the parties. 4. On 25th June, 1953, the Appellants filed the above suit against Respondent Nos.7 to 11. The Appellants’ case was of having entered into an agreement dated 16th December, 1948 with the Defendants wherein the Appellants permitted the Defendants to use 2000 sq.yards on the said property on leave and licence basis reserving to themselves the right of changing the space so permitted to be used : 4 : within the aforesaid property and certain other rights as well. It is pertinent to note that there is nothing in the said agreement which reflects on the rights of any other persons in, to, upon or in respect of the structure occupied by the said other persons on the said property. The Plaintiffs contended that the Defendants put up some unauthorised structures on the said property and failed to pay compensation in terms of the said agreement dated 16th November, 1948. The Appellants accordingly terminated the said agreement and served a notice calling upon the Defendants to vacate the said property. The Appellants filed the above suit and sought a declaration that the Defendants were trespassers on the said land and the Defendants be ordered and decreed to remove themselves and their belonging on the said land and that the Defendants and their servants and agent be permanently restrained from entering upon or remaining on the said land. It is pertinent to note that there are no averments in the plaint to the effect that the Defendants therein were sued not merely in their personal capacity but as representing the interest of any other persons. Nor is there any reference to the alleged agreement that the Defendants represented any other persons on the property. Leave under Order 1 Rule 8 of the Code of : 5 : Civil Procedure was not sought. There is no averment to the effect that any other persons including the Applicants agreed to be represented by and or to be bound by the acts and deeds of the Defendants. 5. On 5th January, 1954, an ex-parte decree was passed against Defendant Nos.1 to 4 and a decree on admission was passed against Defendant No.5. By the said decree, the Defendants and their representatives, servants and agents were ordered forthwith to remove themselves and their belonging from the said property and to pay the compensation and mesne-profits mentioned therein. The expression "their representatives, servants and agents" was relied upon by Ms.Pujara, the learned counsel appearing on behalf of the Appellants to contend that the same would bind the Applicants. We will deal with this contention later. 6. The learned single Judge observed that after the aforesaid decree was passed, the Appellants accepted the compensation and issued the receipts in respect thereof directly to numerous occupants on the said property. The Appellants did not have the decrees executed immediately. They merely renewed the same from time to time. It was only 7th September, : 6 : 1999 that the writ of possession was issued by this Court on the application of the Appellants. The execution thereof was obstructed by a number of persons claiming to be tenants. 7. On 10th October, 1977, the Plaintiffs took out Chamber Summons No.560 of 1977. The said Chamber Summons was in the nature of obstructionist proceedings against 130 persons on the said property who had obstructed the warrant of possession sought to be executed on 13th September, 1977. The Appellants had accepted the compensation after the said decree was passed on 5th January, 1954 inter-alia from these 130 persons. They also accepted the compensation from the others. The said 130 persons filed suits in the Small Causes Court for a declaration that they were the tenants in respect of the structures on the said premises in their occupation. 8. By an order dated 27th November, 1978, a consent order in terms of the consent terms signed by the counsel was passed. The said order also granted by consent, leave to the Appellant to amend the Chamber Summons adding certain parties to the Chamber Summons. Clause 1 reads as under :- : 7 : "1. The Plaintiffs hereby undertake to this Hon’ble Court to construct not less than 130 tenements each admeasuring 12’x9’ with water top in each tenement with adequate sanitary blocks on the suit property and allot each of the 130 Obstructionists mentioned in Annexure ‘A’ hereto whose passport photographs will be given to the Plaintiffs before they vacate as provided in clause No.4 hereof and one tenement out of the said 130 tenements so constructed in accordance with the plan hereto annexed and marked Exhibit ‘B’ subject to the minor alternations by the Bombay Municipal Corporation and other local authorities." . The rest of the terms also clearly pertain only to 130 persons who are added as parties to the Chamber Summons as amended. It is not necessary to set out all the terms which inter-alia pertained to a reference to the suits filed by the 130 obstructionists, undertakings by 130 obstructionists to vacate the suit premises, undertakings by the Appellants to given them alternate accommodation admeasuring not less than 12’x9’ and certain other necessary amenities. Through inadvertence two clauses : 8 : in the terms are numbered 8, the first of which reads as under :- "8. These Consent Terms are binding on the Plaintiffs their heirs, legal representative and/or administrators of the Plaintiffs abovenamed and the Obstructionists mentioned at the said Annexure ‘A’." 9. Suffice it to note at this stage that the undertakings given in the consent terms would only bind the parties thereto. There is nothing in the consent terms to suggest that they were given by the parties thereto for and on behalf of any other person or persons. The Applicants were not parties to the consent terms. As stated above, the Chamber Summons was amended by furnishing a new list of 130 obstructionists. The Applicants were not the obstructionists either in the original list or in the amended list. The learned single Judge has referred to the fact that some of the obstructionists mentioned in the original list had expired. But their heirs were not brought on record and all that was done is that a new list of obstructionists was introduced by virtue of the amendment. The irregularity in the procedure however is not of any relevance so far as : 9 : the rights to the Applicants before us in the present matter are concerned. 10. On 6th April, 1989, the property was declared a slum area under the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as "the said Act"). That order however, was set-aside by order dated 9th December, 1983. It is pertinent to note that in the proceedings before the authorities under the said Act the Deputy Collector had pointed out that as per the census carried out, 175 persons occupying independent structures were found on the property and that only 130 of them were parties to the said consent terms dated 27th November, 1978. It is important to note that at the time of hearing of the Appeal, the Appellants conceded that there were 181 hutments on the said structure. It is true that they contended that occupants of 11 structures from that list were to be provided with accommodation in the proposed new construction. What is more important is the fact that the Appellants also stated that four others were also to be provided accommodation in the proposed new building. The Appellants also contended that 9 hutments were on the municipal land and not on the suit property and that 2 hutments were in occupation : 10 : on the Rent Collector and 5 others had been allowed to put up their hutments temporarily by the Appellants. That according to the Appellants the said other persons were not in possession of the structures on the suit property is another matter altogether. It is important to note that even according to the Appellants, there were more than 130 structures on the suit property. Lastly it is important to note the following observations of the said order of the Slum Tribunal, which reads as under:- "Now it is evident that almost all the occupants for whose benefit a declaration was made, were a party to the suit which was pending before the High Court and that consent terms have been filed in their suit". (emphasis supplied) 11. Accordingly, the declaration dated 6th February, 1980 were set aside. As per the undertakings contain in the said consent terms dated 27th November, 1978 only 102 of 130 obstructionists therein vacated the said property. The Appellants took out Notice of Motion No.174 of 1984 against the remaining 28 obstructionists for failing to comply with the undertakings given by them. By an order : 11 : dated 12th March, 1984, the Notice of Motion was made absolutely. The Applicants were not parties to the Notice of Motion. Ms.Pujara admitted that there is no mention regarding the Applicants in the said order dated 12th October, 1984 either. 12. As the said 28 obstructionists did not hand over the possession despite the aforesaid undertakings and the said order dated 12th October, 1984, the Appellants filed Notice of Motion No.2699 of 1984. The said Notice of Motion was filed for committing the said 28 obstructionists who were Respondent Nos.1 to 28 to the said Notice of Motion, under the Contempt of Courts Act for violating the order dated 12th October, 1984 and the undertakings recorded therein. 13. The present Applicants were thereafter joined as Respondent Nos.29 to 34 to the said Notice of Motion No.2699 of 1984. By an order dated 27th February, 1985, 28 obstructionists were ordered to vacate the premises with their belonging. An officer of this Court was directed to make a report. Upon consideration of the reports of the Officers of this Court,an order dated 4th April, 1985 was passed appointing the Court Receiver with power to forcibly evict the said 28 obstructionists, if necessary with : 12 : the held of police. 14. As the said 28 obstructionists had failed to hand over possession in compliance with the order dated 12th October, 1984, the representative of the Court Receiver along with Appellant No.2 visited the said property on 20th April, 1985 at 2.30 p.m. along with 25 police constables and five police officers and the contractor with his 200 workmen. They started destroying the structure of the said 28 obstructionists. That was a matter between the said 28 obstructionists and the Appellants. However, during that visit, the said persons also started destroying other structures including the structures of the Applicants. The Applicants made various allegations against the representative of the Court Receiver. They stated that they enquired of the Court Receiver whether there was any order permitting him to demolish their structure but that the representative of the Court Receiver stated that though there was no specific order, he had given instructions to destroy their structures as well. Within an hour even the Applicants structures were demolished and their articles and documents were lost and destroyed. The Applicants were also forcibly dispossessed and removed from the said property. The Applicants lodged a : 13 : police complaint. 15. On 20th February, 1986, the following order was passed by this Court on the Applicant’s application :- "1. The six Applicants/Respondent Nos.29 to 34 will put up at their own cost temporary hutments each of maximum area of 12’ x 12’ at such place or places to be nominated by the Plaintiffs adjacent to the temporary sheds put up by the committee members as per Consent Terms dated 27th November, 1978 (Clause 9) within two weeks from the date that the Plaintiffs nominate the place and the Applicants/Respondent Nos.29 to 34 shall shift from their present place. 2. The Plaintiffs shall be at liberty to shift the said temporary sheds at Plaintiffs’ cost and expenses from place to place in view of the construction of the 130 new tenements. 3. The Applicants/Respondent Nos.29 to 34 undertake accordingly. : 14 : 4. The Applicants/Respondent Nos.29 to 34 undertake to Court that in the event of their failing in their obstruction application filed in this Hon’ble Court, they will forthwith demolish and/or remove the temporary sheds referred to in Clause 1 above and shall leave the land along with their belongings etc. 5. The Plaintiffs undertake to Court that in the event of the applicants/Respondent Nos.29 to 34, succeeding in the obstruction application, the Plaintiffs will provide tenements in the newly constructed building housing 130 new tenements or provide some other similar accommodation as may be directed by the Court and on the same terms and conditions as are applicable to the 130 new tenements. 6. Applicants/Respondent Nos.29 to 34 shall not in any manner obstruct the construction on the new building for 130 tenements or any other building on the said land. 7. Suit Nos.3447 of 1985, 3448 of 1985, 3449 : 15 : of 1985, 3450 of 1985, 3451 of 1985 and 3452 of 1985 pending in the Small Causes Court at Bombay shall be stayed and shall abide the result of this Notice of Motion and the Obstruction Application in this Court. 8. Undertakings accepted, Discovery and inspection forthwith hereafter. Notice of Motion and Obstruction Application adjourned to for recording evidence. Liberty to apply." . It was only thereafter that Notice of Motion No.2699 of 1984 was amended by adding a prayer to evict the Applicants and an order was sought against them to remove themselves from their hutments which had already been demolished. 16. Ultimately Notice of Motion No.2699 of 1984 was disposed of by an order dated 3rd March, 1988. The learned single Judge after referring to the above facts, declined to take any action for Contempt of Court against the original Respondent Nos.1 to 28. : 16 : The learned single Judge recorded that the learned counsel appearing on behalf of the Appellants contended that the question as to whether the Applicants i.e. Respondent Nos.29 to 34 to the said Notice of Motion should be evicted from the premises should be examined in the Notice of Motion itself. The learned single Judge declined to do so. The learned single Judge directed the Applicants to take out a Chamber Summons observing that on such Chamber Summons, evidence can be recorded and final adjudication can be made which would amount to a decree. . The undertakings given by the applicants as recorded in the order dated 20th February, 1986 reproduced by us above was ordered to continue to operate till the final disposal of the proposed Chamber Summons to be taken out by the Applicants. 17. It is in these circumstances that the present Chamber Summons was taken out by the Applicants on 9th March, 1988. The Applicant’s case is that they were not parties to the consent decree dated 27th November, 1978 which was entered into between the Appellants and the said : 17 : 130 obstructionists ; that they had their own independent tenements on the said property ; that there is a landlord and tenant relationship between the Appellants and themselves ; that they had paid monthly rent for the said tenements to the Applicants; that they were in exclusive possession of their premises till they were forcibly dispossessed by the Court Receiver and that they were never judgment debtors themselves nor represented by the said judgment debtors. 18. The Appellants denied that the Applicants were their tenants. The Appellants case is that the Applicants resided with some of the 130 obstructionists with whom they were related. The Appellants have contended that there were only 130 and not 181 hutments dwellers on the suit property. As regards the order of the Slum Tribunal, the Appellants stated that what is stated in the order of the Commissioner recorded therein was incorrect. Before us it was contended by Ms.Pujara that the Defendants to the suit were in fact represented by hutment dwellers on the said property including the Applicants even assuming that the Applicants occupied independent structures. : 18 : 19. The learned single Judge framed the following issues : ISSUES 1). Whether the Applicants are the tenants of the Plaintiffs in respect of their individual tenements or huts as alleged in the Affidavit support of the Chamber Summons ? 2). Whether the Applicants are entitled to a declaration that the consent terms dated 27th November, 1978 are not binding upon them ? 3). Whether the Applicants are entitled to alternative premises of similar area in the proposed new building ? 4). What reliefs the Applicants are entitled to ? . The learned single Judge answered the issues as follows :- Issue No.1 : In the affirmative as regards Applicant Nos.1, 3, 4, 5 and 6 and in the Negative as regards : 19 : Applicant No.2. Issue No.2 : In the affirmative. Issue No.3 : In the affirmative. Issue No.4 : As per order set out hereafter. 20. We are in respectful agreement with the findings, reasonings and decisions of the learned single Judge. We however refrain from expressing a final view on the question of the Applicants tenancies in respect of their structures as the point does not arise in these proceedings for final determination. Suffice it to state that the finding of tenancy prima-facie appears to be correct. We have kept this question open to be decided finally in appropriate proceedings, if any, are adopted. 21. Before dealing with each of the issues and the case of each of each of the Applicants, it is necessary to deal with the submissions to the effect that whatever be the finding on merits the Applicants are bound by the decrees passed against the Defendants as the Defendants represented the Applicants. The submission is totally unfounded. The second aspect pertains to the number of hutments on the said premises. : 20 : 22. It is settled law that a decree is binding only between the parties to the proceedings. This is so even if it is a consent decree. The plain reading of the plaint makes it clear that the Defendants were not sued in a representative capacity. No leave under Order 1 Rule 8 of the Code of Civil Procedure was sought. There is no averment in the plaint to the effect that the Defendants represented the hutment dwellers on the property. Even assuming that the said averment was made no evidence, oral or documentary, to that effect was adduced. It is important to note that there is nothing on record to suggest that the Applicants conceded to this position. The Applicants were not parties to the suit. They therefore, cannot be bound by any proceedings, orders or the decree in the suit. The Applicants are not bound by the orders passed in the subsequent proceedings in the above suit and the orders passed therein whether by consent or otherwise. This is for the reason that the Applicants were never made parties to the said proceedings except by virtue of an amendment to the said Notice of Motion No.2699 of 1984. The Applicants were neither parties to nor given notice of any of the applications made in the said proceedings. By no stretch of imagination are they bound by the orders passed in the said proceedings. : 21 : 23. The consent terms were entered into with the said 130 obstructionists who admittedly did not include the Applicants. The Plaintiffs right to enforce the consent terms can only be against the said 130 obstructionists and the structures in their occupation. At the highest, the rights against the persons other than the 130 obstructionists would be against such other persons who were residing in the structures belonging to the 130 obstructionists without themselves having any right, title or interest in respect of the said structures themselves. In other words, at the highest the Plaintiffs case could have been that the Applicants were put in possession of the very site of the said 130 obstructionists and that therefore they were entitled to execute the consent terms against them. To establish such a right, it was necessary for the Plaintiffs to correlate the structure in the occupation of each of the said Applicants to the structures of one of the said 130 obstructionists in Chamber Summons No.560 of 1977. 24. No such case has been established by the Appellants. On this ground alone, the Plaintiffs must fail qua the Applicants. : 22 : 25. The Applicants’ case is further supported by the fact that there clearly were more than 130 structures on the property at the material time. This is apparent from various circumstances : a). Firstly, as we have already mentioned, in 1948, the Appellants had filed 162 suits in the Small Causes Court and obtained decrees for eviction therein. They alleged that because of the intervention of one Purushottam Trikamdas, the tenants were agreed to be allowed to occupy a part of the land. As observed by the learned single Judge, neither in the affidavit nor