1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4920 OF 2009 Mr.Ram H.Vazirani & Ors. .. Petitioners V/s United India Insurance & Co. Ltd. .. Respondent No.1 And Mr.Nirmal H.Vazirani .. Respondent No.2 Mr.P.G.Lad with Ms.Meena Sangoi i/by M/s.Sara & Co. for the petitioners. Mr.Sameer Bhalerao for Respondent No.2. CORAM : R.G.KETKAR, J. DATE : May 19, 2009 ORDER: 1. This matter was heard by me on May 19, 2009 and for the reasons to be recorded separately, the petition was dismissed. After signing the operative order which was transcribed by Ms.S.R.Joshi (Personal Assistant), the papers and proceedings were sent to Court Sheristedar Mr. Kolhapure on May 25, 2009 and the papers were thereafter directly sent to the Decree Department. The petitioners applied for certified copy of the order on October 1, 2009. By communication dated February 24, 2010 the Assistant Registrar, Certified Copy Branch called upon the petitioners Advocate to ’ contact him in respect of the said application. It further appears that nothing was done by the staff attached to the Decree Department or the Court Sheristedar Mr. Kolhapure till March 7, 2010. When the Petitioners did not get certified copy of the reasoned order they approached my Pvt. Secretary Mr.S.H.Hadap on March 8, 2010. My Pvt. Secretary Mr.Hadap brought this fact to my notice on March 8, 2010 itself. Immediately I 2 called for the papers and proceedings from the Department. The papers and proceedings were thereafter placed before me on March 9, 2010. Considering the lapse on the part of the officials handling this matter, the action on the administrative side will have to be taken. For that purpose the papers and proceedings may be placed before the appropriate authority. Be that as it may, I proceed to give reasons in support of the order dated May 19, 2009 Accordingly, I called upon the Advocates appearing in the matter in my Chamber on March, 15, 2010 at 4.30 p.m. and proceeded to give reasons on March 15, 2010 in support of the order dated May 19, 2009. 2. The petitioners challenge the judgment and order dated September 26, 2003 passed by the learned Judge, Court No.24 of the Court of Small Causes, Mumbai in an Interim Notice No.3034 of 2003 in RAE Suit No. 1166/3586 of 1988 as also the judgment and order dated March 26, 2009 passed by the Appellate Bench of the Court of Small Causes, Mumbai in an Appeal No.703 of 2003. By the impugned judgments and orders, the Courts below have made absolute the interim notice taken out by the Respondent No.1 United India Insurance & Company Limited, – (hereinafter referred as the Defendant), and directed the petitioners herein to hand over vacant and peaceful possession of the suit premises back to the Defendant. The facts, giving rise to the filing of the present petition, briefly stated are as follows:- 3 3. One Mrs.Gomati Vazirani instituted RAE Suit No.1166/3586 of 1988 against the Defendant under the provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 (for short the Act ) for recovery “ ” of the possession of the suit premises. During the pendency of the suit, the petitioner No.1 Ram H.Vazirani took out interim notice No.2588 of 1997 on the ground that Gomati died on January 22, 1997 leaving behind himself and five others. He further contended that as per the last Will & Testament dated October 17, 1986, Gomati had bequeathed the suit premises to Petitioner No.1. Other heirs and legal representatives of Gomati made an affidavit dated June 11, 1997 relinquishing their right, title and interest in the suit premises in favour of Petitioner No.1. 4. The interim notice was strongly resisted by the Defendant on the ground that the Will was not probated and that the executors of the said Will should be brought on record in the place of Gomati. After hearing both sides, learned Trial Judge, by his judgment and order dated September 5, 1997 made absolute the notice and the Petitioner No.1 was brought on record in the place of Gomati. In so for as Defendant s objection as ’ regards the obtaining probate of the Will, it was to be considered at the time of hearing of the suit. When the suit came for hearing, the petitioner No.1 made an application on March 5, 2001 contending that the Defendant had agreed to settle the matter by voluntarily surrendering the possession of the suit premises to him in pursuance of the latter dated January 17, 2001. The Defendant strongly objected to the said application. 4 After hearing both sides, application was rejected by learned Trial Judge on March 5, 2001. The Court directed the Petitioner No.1 herein to proceed with the evidence. The Petitioner No.1 proceeded with the evidence on March 5, 2001 as also on March 13, 2001. In the meantime, the Respondent No.2 herein Nirmal H. Vazirani (hereinafter referred to – as the Plaintiff) made an application to the Court for bringing him on record or to join him in the suit as co-plaintiff as the Petitioner No.1 herein was not co-operating with him in the matter of probating the Will left by Gomati. He further requested that all other heirs and legal representatives of Gomati be brought on record. The said notice was strongly resisted by the petitioners herein. After hearing both sides, by an order dated April 21, 2001, the application was allowed and the Court directed the Petitioner No.1 to join the plaintiff-Nirmal in the suit and to supply the amended copy of the Plaint to the Defendant and to the Court on or before April 30, 2001. 5. The Petitioner No.1, presumably intended to challenge the said order and the matter was postponed till September 25, 2001. It appears that the Petitioner No.1, behind the back of the Defendant s Advocate, requested ’ the Trial Court to allow him to withdraw from the suit. It further seems that the Trial Court granted the prayer, with the result the Respondent No.2 herein- Nirmal became sole plaintiff in the suit. The Defendant filed its additional written statement on August 2, 2001. When the suit came for recording of evidence, the plaintiff had filed affidavit in lieu of 5 examination in chief on October 9, 2002.. The plaintiff made an application on January 9, 2003 requesting the Court to issue witness summons to Petitioner No.1 for attending the Court with the original documents. Since the said witness summons was not served on the Petitioner No.1, suit was adjourned from April 19, 2003 to June 3, 2003. 6. It is the case of the Defendant that in the Summer Vacation, the Petitioner No.1 alongwith the family members broke open the lock of the suit premises on May 19, 2003 and forcibly and illegally entered into the suit premises with their belongings. Thus the Petitioner No.1 alongwith his family members committed offence of house breaking and criminal tress- pass as also the contempt of Court. When these facts were brought to the notice of the Defendant, on May 21, 2003 the Defendant lodged complaint with Senior Inspector of Police, Chembur Police Station. The present plaintiff-Nirmal as well as other legal heirs and representatives of Gomati also lodged complaint with the Chembur Police Station against the Petitioners. Under these circumstances, the Defendant took out the interim notice for appropriate directions to the Petitioners to hand over possession of the suit premises among other prayers. 7. Notice was resisted by the petitioners on various grounds. In the first place it was submitted that the Court had no jurisdiction to entertain and try the notice as it is the case of the Defendant that the petitioners are the tress-passers in the suit premises. Secondly, since the petitioners herein are not party to the suit, the Defendant cannot maintain interim 6 notice claiming any relief against them. The Defendant will have to take out appropriate proceedings afresh for recovery of possession. Thirdly, it was submitted that the Defendant being a limited company having paid- up capital of Rs. 1 Crore and above, is not entitled to the protection from eviction under the Maharashtra Rent Control Act, 1999. Fourthly, the interim notice is outcome of the collision between the Plaintiff and the Defendant with a view to defeating the lawful and genuine claim of the petitioners. Fifthly, it was submitted that the Defendant voluntarily surrendered the possession of the suit premises and since then the petitioners are in actual use and occupation of the suit premises. On these among other grounds, the petitioners resisted the interim notice. 8. The plaintiff filed affidavit in reply supporting the Defendant s claim in ’ the notice and also gave affidavit in reply to the petitioners affidavit denying the contentions raised by the petitioners in their affidavit in reply. On the basis of material on record, the learned Trial Judge by his judgment and order dated September 26, 2003 partly made absolute the notice by directing the petitioners herein to hand over vacant and peaceful possession of the suit premises back to the Defendant, among other directions. Being aggrieved by this order, the petitioners preferred Appeal No.703 of 2003 before the Appellate Bench of the Court of Small Causes. By the judgment and order dated March 26, 2009 the Appellate Bench of the Court of Small Causes dismissed the appeal. It is against these orders, the present petition is preferred. 7 9. Mr.P.G.Lad, learned counsel for the petitioners strenuously submitted that the Courts below have committed several errors of law and fact apparent on the face of the record. He submitted that the interim notice taken out by the Defendant itself is not maintainable. If at all, according to the Defendant they are illegally dispossessed, their remedy is to adopt the appropriate proceedings for recovery of possession. Interim notice in a pending suit cannot, by any stretch of imagination, be said to be an appropriate remedy. He further submitted that the interim notice is outcome of collision between the plaintiff and the Defendant. At any rate the petitioners herein were not party to the suit and consequently, the Defendant could not have claimed any relief against them. It was also submitted that the Courts below had no jurisdiction to entertain and try the notice taken out by the Defendant for restoration of the suit premises, as, as per the case of the Defendant, the petitioners herein are tress-passers in the suit premises. He submitted that the appropriate remedy available to the Defendant was to institute the suit u/s.6 of the Specific Reliefs Act, 1963. It was also contended that the Defendant voluntarily surrendered the possession of the suit premises to the petitioners and even otherwise, interim notice was liable to be dismissed. On the other hand, Mr.Sameer Bhalerao, learned counsel for the Defendant supported the impugned judgment and orders. 10. Though the petition is styled as a Petition under Articles 226 & 227 of the Constitution of India, in fact and the totality of circumstances, the 8 pleadings show that the Petition is essentially one under Article 227 of the Constitution of India. Considering the pleadings, points raised and the prayers made in the petition, it is clear that the petition is under Article 227 of the Constitution of India. 11. As indicated earlier, the Petitioners herein had unsuccessfully made an application on March 5, 2001 before the Trial Court contending that the matter was settled as the Defendant voluntarily intended to surrender the possession of the suit premises. The said claim was based on the letter dated January 17, 2001. This application was strenuously resisted by the Defendant and eventually the application was rejected by the Trial Court. The submission made on behalf of the petitioners that the Defendant voluntarily surrendered the possession, prima-facie cannot be accepted. On merits, the Courts below, after appreciating the material on record, held that the Defendant is entitled to be put back in possession of the suit premises. It is relevant to note that the Petitioner No.1 behind the back of the Defendant made an application to the Trial Court seeking permission to withdraw from the suit. That application was granted. Suit was adjourned beyond Summer Vacation of 2003 and during the Summer Vacation the petitioners broke open the lock and took forcible possession of the suit premises. The contention raised by the petitioners that the interim notice is not maintainable was considered by the Trial Court and was negatived by relying upon the Division Bench judgment of this Court in the case of Kondiba V/s.Narayan Namdev, 2001 (2) Mh.L.J.820. 9 Prima-facie, considering the conduct of the petitioners as also the material on record, in my opinion, this is not the fit case for invocation of writ jurisdiction under Article 227 of the Constitution of India. I find that the Courts below have not committed any error of law and fact apparent on the face of the record. It also cannot be said that the impugned orders are either perverse or show lack of application of mind. In my judgment, the petition is devoid of substance and is liable to be rejected. Hence petition is dismissed with no order as to costs. 12. At the request of learned Counsel for the petitioners, operation of this order is stayed for a period of six weeks from today i.e.from 15th March, 2010 on the condition that the Petitioners shall not create any third party interest in any manner whatsoever or part with possession of the suit property. Issuance of authenticated copy as well as certified copy is expedited. (R.G.KETKAR, J.)