1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.110 OF 2009 1. M/s. Bharat Petroleum Corporation Ltd., a Body Corporate, registered under Companies Act, having its head office at Mumbai : Bharat Bhavan, 4 & 6 Karimbhoy Road, Ballard Estate, Post Box No. 688, MUMBAI - 400 001. 2. The Territory Manager, M/s. Bharat Petroleum Corporation Ltd., at Manmad, District Nasik. ....Appellants. Versus Kishor Mohanlal Bafna, Age : Adult, Occu. Business, R/o. 1489, Parola Road, At and District Dhule. ....Respondent. Shri. S.D. Kulkarni, Advocate for the appellants. Shri. S.V. Gangapurwala h/f. Shri. Amol Savant, Advocate for the respondent. 2 CORAM : R.K. DESHPANDE, J. [Date of reserving the Judgment on 24th of August 2009 Date of pronouncement of Judgment 14th of September 2009] ORAL JUDGMENT : 1. This appeal has been preferred by the original defendants, challenging the judgment and decree passed on 12.9.2008, in Special Civil Suit No. 155/2005 by the Civil Judge, Senior Division, Dhule. The suit has been decreed in favour of respondent/plaintiff and the appellants/defendants are directed to hand over vacant possession of the suit land to the plaintiff within a period of 60 days from the date of the order. A separate inquiry has also been directed to be initiated for determination of mesne profits under Order XX, Rule 12 of Civil Procedure Code. (The parties shall hereinafter referred to as according to their original status as 'plaintiff' and 'defendants'). 2. Facts leading to the case are as under :- The dispute in Special Civil Suit No. 155/2005 relates to the non agricultural land bearing Survey No. 484/1, admeasuring 28.33 R., assessed to land revenue of Rs. 1706 situated at Dhule, taluka and district Dhule. The plaintiff filed Special Civil Suit No. 155/2005, claiming relief of direction to the defendants to surrender the vacant, peaceful possession of the suit property and further to pay amount of Rs. 3 2,25,000/- to the plaintiffs, towards damages for last preceding 3 years, at the rate of Rs. 75,000/- per year. The plaintiff also claimed interest at the rate of 18% p.a. on the amount of Rs. 2,25,000/- from the date of filing of the suit till its realization. The plaintiff also claimed inquiry in to the mesne profits as per Order XX, Rule 12 of the Civil Procedure Code. The appellants were joined as defendant Nos. 1 and 2 to the said suit. 3. The plaintiff alleged that one Mahemood Abdul Majid was the owner of the suit property and had entered in to the lease agreement dated 29.7.1963, with Barma Shell Oil Storage and Distribution Company of India Limited for a period of 20 years, commencing from 1.9.1961 and ending on 31st August 1981. The lease was granted to the said company for the purpose of running of Petrol Pump on the annual rent of Rs. 1,000/-. The said lease deed was registered on 11.10.1963. That on 24.1.1976, Barma Shell (Acquisition of Undertakings in India) Act, 1976 was brought in to force, whereby the business of petroleum product was nationalized and the said company, i.e. Barma Shell Oil Storage and Distribution Company of India Limited, was taken over by the Government of India through M/s. Bharat Petroleum Corporation Limited i.e. the present appellant. As a result of the statutory provisions of the said Act, the defendants continued to be the lessee of the original owner of the suit property. The initial period of 20 years expired on 31.8.1981 and although there was no agreement of renewal, entered in to by virtue of right of renewal, given under the original agreement, the 4 lease of the defendants stood renewed for further period of 20 years, commencing from 1.9.1981 to 31st August 2001. Thereafter, there was no further renewal and the lease period expired. In spite of that the defendants continued to be in possession of the suit property. 4. The plaintiff further alleged that one Hussain Shaikh Ahmed, the legal representative of the original owner, sold the suit property to 17 different persons including the plaintiff by executing the registered sale deeds. Consequently, the plaintiff became owner of the portion of the suit property. However, the other owners of the remaining portion of the suit property, executed several release deeds, dated 24.12.2003, 29.12.2003, 12.3.2004, 18.3.2004 and 27.5.2004 in favour of the plaintiff. Consequently, the plaintiff became owner of the entire suit property. The plaintiff claimed that the defendants were defaulters in payment of rent since 1983 and the legal representative of the original owner had authorized the plaintiff, by executing the power of attorney, to recover the arrears of rent from the defendants. It was also alleged that the lease expired by efflux of time. The plaintiff, therefore, issued legal notice dated 29.4.2005, calling upon the defendants to surrender the vacant, peaceful possession of the suit property to the plaintiff and to pay an amount of Rs. 16,50,000/- towards damages for unauthorized use and occupation of the suit property for the period of 22 years commencing from 1983 to 2004 at the rate of 75,000/- per year. According to the plaintiff, the said notice was not replied by the defendants and therefore, 5 the Special Civil Suit No. 155/2005 was filed, claiming reliefs as stated aforesaid. 5. Although, the defendants were served with the suit summons, they did not appear in the matter and hence, an exparte decree was passed on 17.10.2005 in favour of the plaintiff and against the defendants. The suit was decreed for possession and also for consequential orders of holding of inquiry in to the mesne profits. This decree was the subject matter of first appeal No. 1201/2005 filed by the defendants in this Court. This Court quashed and set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court for deciding the suit afresh within a period of 3 months. While issuing such directions, the statement was recorded that the parties shall remain present in the trial Court on 3rd of August, 2006 with further direction to decide the suit within a period of three months from 3rd of August 2006. 6. After remand of the matter to the Trial Court, the defendants filed their written statement on 18.8.2006. The Trial Court framed issues on 21.11.2006 , which are reproduced as under :- I S S U E S F I N D I N G S 1. Whether the plaintiff proves his title over the suit property ? Yes. 2. Whether the plaintiff proves that the suit property is unauthorized and illegal No. 6 possession of the defendant No. 1 since the year 1983 ? 3. Whether the plaintiff proves that the defendant is defaulter ? No. 3A. Whether the plaintiff further proves that the original lessor executed Power of Attorney in favour of Mujeeb Shaikh Mehmood and/or Mehmood Hussain Shaikh Ahmad ? No. 4. Whether the plaintiff is entitled for the possession of the suit property ? Yes. 5. Whether the plaintiff is entitled for damages of Rs. 2,25,000/- ? No. 6. Whether the plaintiff is entitled for future interest on the amount of Rs. 2,25,000/-. If so, at what rate ? No. 7. Whether the plaintiff is entitled for mesne profits ? Yes. 8. Whether the suit is barred by jurisdiction ? No. (Decided as per Judgment dated 12.12.2006) 9. Whether the suit is tenable ? Yes. (Decided as per Judgment dated 12.12.2006) 9A. Whether the suit is nullity ? No. (Decided as per Judgment dated 12.12.2006) 10. Whether the suit is bad for non joinder of necessary parties ? No. (Decided as per Judgment dated 12.12.2006) 10A. Whether the plaintiff further proves that he has cause of action to file suit under the Yes. 7 Rent Act ? 11. Whether the suit is bad for want of notice to the defendant U/Sec. 80 of Code of Civil Procedure ? No. (Decided as per Judgment dated 12.12.2006) 12. Whether the suit is barred by principle of res-judicata in view of the judgment and decree passed in R.C.S.No. 481/82 ? No. 12A. Whether the plaintiff has properly valued the suit property ? Yes. 13. Whether the defendant has paid Rs. 47,779/- to the Government towards the revenue of the suit property. If so, whether the defendant is entitled to apply that amount towards payment of rent of the suit property ? No. 14. Whether the defendant proves that they have exercised their contractual and statutory right of renewal of lease and on that ground the suit for eviction is premature ? No. 15. What order and decree ? As per final order. " On 26.9.2006, the Trial Court passed an order, allowing the application filed by the defendants to decide the issue Nos. 8,9,9A, 10 and 11, as preliminary issues. Accordingly, the Trial Court passed an order on 12.12.2006, deciding all the preliminary issues in negative. 7. The aforesaid order dated 12.12.2006 was the subject matter of challenge in Writ Petition No. 1848/2007 on 9.3.2007. The said writ petition was ultimately permitted to be converted in the Civil Revision 8 Application No. 130/2007 by an order dated 4.9.2007. On 14.9.2007 this Court granted stay to further proceedings in the civil suit and ultimately by the judgment and order dated 26th of November 2007, the said civil revision application was dismissed. 8. The defendants, thereafter, filed an application Exh. 96 for grant of an opportunity to cross examine the plaintiff. By reasoned order dated 21.2.2008 the learned Judge of the Trial Court rejected the said application on the ground that the defendant was not entitled to be given further opportunity in the matter as the defendant went on prolonging the matter. Thereafter, one another application i.e. Exh. 99 was filed under Order 1, Rule 10(2) by one Dhuliya Motors Owners Co- operative Consumer Stores Limited, Dhule for joining as a party defendant in the suit. The said application at Exh. 99 was dismissed by reasoned order dated 19.4.2008 passed by the Trial Court. Being aggrieved by the said order, the said Dhuliya Motors Owners Co- operative Consumer Stores Limited, Dhule preferred Writ Petition No. 3484/2008 before this Court which was dismissed by the judgment and order dated 9th of July 2009. Against this judgment, the said society approached the Apex Court by filing Special Leave Petition ("SLP"). 9. During the pendency of SLP the Trial Court on 12.9.2008 decreed the Special Civil Suit No. 155/2005. In view of this, the said SLP was dismissed granting liberty to M/s. Dhuliya Motors Owners Co-operative 9 Consumer Stores Limited, Dhule to prefer an appeal and accordingly first appeal No. 411/2009 has also been filed before this Court, challenging the same judgment and decree. 10. The judgment and decree passed by the Trial Court on 12.9.2008 in Special Civil Suit No. 155/2005 has been challenged by the defendants in this appeal mainly on two grounds.- (1) that the suit summons was not served upon the defendants in accordance with the provisions of Order XXIX, Rule 2(a) of the Code of Civil Procedure and (2) that the Trial Court has failed to provide opportunity to the defendants to cross examine the witnesses of the plaintiffs and to lead oral as well as documentary evidence, which has resulted in failure of justice. Except these two points, there is no challenge to the judgment and decree passed by the trial Court on merits and the learned counsel for the appellants submitted that when the defendants were not permitted to cross examine the witnesses or to lead evidence, the question of challenge to the decree on merits, does not at all arise. 11. So far as the first contention regarding the service of suit summons in accordance with the provisions of Order XXIX(2)(a) of C.P.C. is concerned, it is urged by the learned counsel that the suit summons ought to have been served upon the defendant No. 1 either through its Secretary or any Director or other Principal Officer of the Corporation, sitting in the Head Officer at Mumbai, who has been empowered or 10 authorized by resolution of the Corporation for that purpose. It is the contention of the learned counsel that the provision is mandatory and in this case, the suit summons was served upon the defendant No. 1 through its Territory Manager of the defendant No. 1 having its office at Manmad, District Nasik. According to the learned counsel the Territory Manager at Manmad was neither the Secretary of the Corporation nor was the Director of the Corporation or other Principal Officer authorized by the Corporation by resolution passed to that effect. It is the contention of the learned counsel that the burden of proof to show strict compliance of order XXIX, Rule 2(a), is upon the plaintiff, who has failed and as a result, the judgment and the decree passed in the suit is rendered bad in law and not binding upon the defendants. 12. So far as the contention regarding the opportunity to cross examine the plaintiff's witnesses and permitting the defendants to lead evidence is concerned, the learned counsel for the appellants contended that on 16.3.2007, the Trial Court passed an order, holding that there is no cross by the defendants of the plaintiff's witnesses. On 17.8.2007, the Trial Court passed an order holding that no evidence is led by the defendants and on 12.9.2008 the judgment and decree has been passed, which is impugned in the present appeal. On this date, according to the learned counsel for the appellants, writ petition No. 1848/2007 filed on 9.3.2007 by the appellants, challenging the decision of the Trial Court given on 12.12.2006, recording findings on preliminary issue Nos. 8,9,9A, 11 10 and 11, was pending. According to the learned counsel, even if there was no stay to the proceedings of the Trial Court, the propriety demanded that the Trial Court should stay the proceedings on its own, having got the knowledge of proceedings pending in the High Court and not to show any undue haste in deciding the matter. It was further urged that when the Trial Court delivered its judgment and passed decree impugned in the present appeal on 12.9.2008, the SLP No. 22751/2008 filed before the Apex Court, challenging the decision of the learned Single Judge of this Court given in Writ Petition No. 1848/2007, arising out of the proceedings in the Special Civil Suit No. 155/2005, was pending and hence, the Trial Court could not have proceeded to decide the suit. According to the learned counsel, this has resulted in miscarriage of justice and the judgment and the decree passed by the Trial Court is, therefore, liable to be quashed and set aside. The learned counsel in support of his plea relied upon the decisions of the Apex Court as follows :- (1) A.I.R. 1980 Supreme Court 1168, (para Nos. 4 to 9) Shalimar Vs. Abdul Husein, (2) 1989 (3) Bombay Cases Reporter 492, Ashok Kumar Vs. S.B.I. and (3) 1989 (3) Bombay Cases Reporter 279, Kishor Vs. Preety. 13. Shri. Gangapurwala, the learned counsel appearing for the plaintiff submitted that at the first instance, the points which are raised in this appeal were neither raised nor argued before the Trial Court. He 12 further submitted that defendants appeared in the matter, filed their written statement through the power of attorney holder Shri. Ratankumar for and on behalf of defendant No. 1 and in view of this, the alleged non compliance of Order XXIX, Rule 2(a) has lost its efficacy. He has further urged that initially on 26.7.2006 the judgment and decree was passed against the defendants, in the suit in question and the same was challenged by filing first appeal No. 1201/2005 before this Court on the same grounds. The said first appeal was allowed by the judgment and order dated 26.7.2006, by recording consent of parties and issuing directions to the Trial Court to decide the suit as expeditiously as possible within a period of three months from 3rd of August 2006. It was further pointed out that although an application under Order 9, Rule 13 was filed by the defendants, raising the same grounds of challenges to seek , set aside of exparte decree, the said application was withdrawn in view of the decision in the first appeal. The learned counsel further submitted that after remand of the matter to the Trial Court, the defendants filed their written statement, but again tried to protract the litigation on one count or another by filing applications and seeking orders thereon. As a result, the trial Court was required to spend more than 7 months to decide the matter as against the directions of 3 months given by this Court. According to him, the defendants are, therefore, not entitled to raise all such pleas, again in this appeal. 14. On the question of compliance of Order XXIX, Rule 2(a) of 13 C.P.C., the learned counsel for the plaintiff submitted that the provision is directory and the suit summons was served upon the Territory Manager, who was the other Principal Officer of the said Corporation, at its office at Manmad, and it was for the defendants to have led evidence and brought on record the resolution of the Corporation conferring authority on the Principal Officer other than the Territory Manager of the Corporation, to accept legal notices and receive suit summons for and on behalf of the defendants. The defendants having failed to lead any evidence, cannot now complain about the non service of suit summons through the authorized officer of the Corporation in the head office. 15. So far as the contention of the defendants regarding lack of opportunity to cross examine the plaintiff's witnesses and lead evidence is concerned, it was urged by the learned counsel for the plaintiff that after remand of the matter by this Court on 26.7.2007, written statement was filed by the defendants. The defendants also filed an application for deciding the issues No. 8,9,9A,10 and 11 as preliminary issues and the same were decided by order dated 12.12.2006. The matter was thereafter fixed on 16.12.2006 for cross examination by the defendants. The defendants sought an adjournment for cross examination. Thereafter, again on 22.12.2006, 12.1.2007 and 25.7.2007, the matter was adjourned for cross examination by the defendants. Although last chance was granted on 25.7.2007, the Trial Court again granted 8 days time on 17.2.2007 and again on 22.2.2007. Ultimately, the Trial Court passed an 14 order on 16.3.2007 by which date the defendants failed to produce any interim order passed by this Court in Writ Petition No. 1848/2007, which was ultimately converted in to Civil Revision Application No. 130/2007. The learned counsel relied upon the provisions of Rule 241 of Civil Manual which stated that unless there is stay from the higher Court, the proceedings of suit shall be continued. The learned counsel further pointed out that the evidence of the plaintiff was closed on 23.2.2007 and thereafter, till 14.9.2007 there was no stay to the further proceedings of the Trial Court in the said suit. The stay was granted to the further proceedings for the first time on 14.9.2007 in Civil Revision Application No. 130/2007 and after dismissal of the said Civil Revision Application on 26.11.2007, the Trial Court proceeded to deliver the judgment and passed decree in question. When the decree was passed, even on the date of decision of the suit, there was no stay in any proceedings, either by this Court or by the Apex Court, to the proceedings of this suit in question. The Trial Court, therefore, provided ample opportunities to the defendants, who have failed to avail the same and hence, they cannot now turn around and complain about lack of opportunity. The plea raised, according to the learned counsel, is frivolous and the appeal is liable to be dismissed with exemplary costs. 16. In order to deal with the contention of the learned counsel for the appellants based, upon the order dated XXIX Rule 2(a) of C.P.C., dealing with the service on corporation needs to be reproduced as under 15 :- "ORDER XXIX SUITS BY OR AGAINST CORPORATIONS 1. ...................... 2. Service on corporation.- Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served- (a) on the secretary, or on any director, or other principal officer of the corporation, or" The learned counsel for the appellants/defendants urged, non compliance of Rule 2 (a) reproduced above. The learned counsel admitted that the said rule does not contemplate authorization by passing resolution in favour of other Principal Officer of the Corporation. There is no specific plea raised that the Territory Manager, at the office of Corporation at Manmad, is not the other Principal Officer of the Corporation. Bare perusal of the said Rule, reveals that the provision is directory and not mandatory as it uses the word "may" in respect of service of summons on the Secretary or any Directory or other Principal Officer of the Corporation. Hence, even if there is non compliance, the same shall not vitiate the proceedings. Apart from this, the point was not raised before the Trial Court. The learned counsel for the plaintiff has rightly pointed out that in view of the decision of in first appeal No. 1201/2005 decided by this Court on 26.7.2006 setting aside the exparte decree, and directing the Trial Court, to decide matter within 16 three months, the issue of non service of summons upon the persons specified in the aforesaid rule 2(a) has lost its efficacy. As a matter of fact, this issue was the subject matter of F.A.No.1201/2005, which is decided and also of an application under Order 9, Rule 13 of Civil Procedure Code, which has been withdrawn. Thus, there was complete waiver of the point by the appellant. It is apparent that because of impediment created by the defendant in the proceedings, the suit could not be decided within a period of three months. In view of this, I do not find any substance in the contention raised by the appellant regarding non compliance of Order XXIX, Rule 2(a) of C.P.C. The same is, therefore, rejected. 17. So far as the question regarding lack of opportunity to lead the evidence is concerned, it is apparent that mere pendency of the proceeding in the higher Courts does not operate the stay of the proceedings of the civil suit and in this context, the learned counsel for the plaintiff has rightly relied upon Rule 241 of Civil Manual, which is reproduced below :- "241. A party has no right to an adjournment merely because it has filed a petition for revision and has applied or intends to apply to the High Court for stay. The automatic grant of adjournments in such cases encourages the filing of petitions for revision of interlocutory orders solely for purpose of delay." 17 In view of the aforesaid provisions, the Trial Court was right in proceeding with the matter in the absence of their being any interim order granted in any proceedings by this Court or by the Apex Court. 18. The contention of the appellants that on 9.3.2007 Writ Petition No. 1848/2007 was filed, challenging the decision of the preliminary issues given by the Trial Court on 12.12.2006, the Trial Court ought not to have passed an order of "no cross" by the defendants on 16.3.2007, also carry no weight and substance. The writ petition was although filed on 9.3.2007, the same appears to have been circulated for the first time on 28.3.3007. The Writ Petition was thereafter adjourned on 11.4.2007, 21.4.2007, 28.6.2007, 8.8.2007 and 14.8.2007. Ultimately, the said writ petition was converted in the Civil Revision Application No. 130/2007, on 4.9.2007. The Trial Court, therefore, rightly did not wait for any interim orders to be passed by this Court either in the said Writ Petition or in Civil Revision Application. Ultimately, the said Civil Revision Application was dismissed on 26.11.2007. The appellant did not participate in