1 cra463.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.463 OF 2010 Bhawarsingh Ramlal Purohit & Anr. ...Applicants vs. Sheth Virji Peraj Bhatia & Ors. ...Respondents Mr.A.Y.Sakhare, Sr.Advocate i/b Mr.Vishwajeet Mohite and Mr.Sanjay Jain i/b Mr.Lalit V.Jain for the applicants Mr.M.W.Padgaonkar with Mr.D.C.Pathak for the respondents CORAM :A.S.OKA,J. DATE : OCTOBER 21, 2010 P.C.: 1 On 27 th September 2010, the learned counsel Mr.Jain for the applicants fully argued the revision application. As the learned counsel was desirous of seeking instructions as regards grant of longer time to vacate, on his request, order was not passed and the revision application was adjourned to 8 th October 2010for passing orders. On 8 th October 2010, there was a change of counsel. It was brought to the notice of the learned senior counsel who appeared for the applicants on that day that the submissions were fully heard earlier and only by way of indulgence, an order was not passed on 27 th September 2010. The learned senior counsel for the applicants sought time to take instructions. As per his instructions, the applicants are not willing to deposit the amounts as per the interim order passed by the Appellate Court. Hence, the prayer for grant of longer time to vacate cannot be considered. 2 The revision application arises out of orders passed 2 cra463.sxw in the Obstructionists notice under Rule 97 of Order XXI of the Code of Civil Procedure,1908. The applicants are the obstructionists and respondent nos.1 to 4 are the original plaintiffs. The Respondent nos.5 to 7 are the defendants. 3 Decree for possession was passed in the year 2005. Obstructionists notice was taken out as the present applicants obstructed the execution of the decree. Obstructionists notice was made absolute by the executing Court. An appeal preferred by the revision applicants has been dismissed by the impugned Judgment and Order. 4 The learned counsel for the applicants had made detailed submissions. He submitted that the plaintiffs had issued a rent receipt on 7 th May 2000 for the period from January 1999 to May 2000. He submitted that the plaintiffs were fully aware when the decree was passed that the revision applicants were in possession of the suit premises. 5 The learned counsel further submitted that evidence of the rent receipt standing in the name of the second applicant has been discarded only on the ground that the second applicant did not contest the obstructionists notice. He submitted that the case of the first applicant could not have been discarded on the ground that the second applicant did not contest the obstructionists notice. He submitted that there are various documents placed on record to show that the applicants were already in possession prior to the institution of the suit. He pointed out that in fact, the original defendants were never in possession to the knowledge of the original plaintiffs and that the second applicant is a tenant in respect of the suit premises. 3 cra463.sxw He submitted that the findings recorded by the Courts below are perverse. 6 I have given careful consideration to the submissions. To the obstructionists notice taken out by the original plaintiff, a reply was filed by the second applicant raising various contentions. It was contended that the plaintiffs had mortgaged room no.1 and had obtained certain amount from one Devilal Jain. He stated that on the request made by the second plaintiff, he repaid certain said amount to said Devilal Jain and at that time, possession of the room no.1 was handed over to him by issuing a rent receipt. His case is that he has been regularly paying the rent in respect of the room nos.1 and 2 for which rent receipt has been issued. It appears that at the time of recording the evidence, only the first applicant stepped into witness box. 7 Perusal of the Judgments of both the Courts below show that the entire evidence has been considered and appreciated. The Courts below have considered the rent receipt at Exh.7. The Courts below have observed that the rent receipt at Exh-7 was in the name of the second applicant but the second applicant did not ultimately contest the proceedings. No evidence was adduced by the second applicant. In fact, the Appellate Court in its Judgment has noted that first revision applicant made an application in the appeal for leading additional evidence of the second applicant and that even the said application was not signed by the 2 nd applicant. 8 The Appellate Court noted that the decree under execution related only to room no.1. It was also noted a separate suit has been filed by the plaintiffs in respect of the room no.2 to which both the applicants are 4 cra463.sxw parties. The Appellate Court observed that though in the present obstructionists notice a stand was taken by the first applicant that he was jointly doing the business with his brother i.e the second applicant, no such contention has been raised in the said suit. The Appellate Court noted that the stand of the second applicant in the evidence is that he himself is a tenant in respect of the suit premises on the basis of the transaction which was allegedly entered into by the plaintiff with one Devilal Jain. No evidence was adduced to show that it was the case of a joint tenancy. The Appellate Court held that in any event, the said receipt at Exhibit-7 was in the name of the second applicant and that the same was in respect of payment of compensation. It was held that the said receipt is not in respect of the payment of any rent. 9 Thus, only on the basis of the alleged rent receipt at Exhibit-7, the Courts below could not have accepted the case made out by the applicants regarding the rights claimed by them. 10 Concurrent finding of fact is that the applicants have failed to establish any independent right in respect of the suit premises. 11 In the circumstances, there is no merit in the revision application and the same is rejected. . At this stage, the learned counsel for the applicants prays for continuation of ad-interim relief granted on 28 th July 2010. Ad-interim relief granted earlier will continue to operate for a period of 12 weeks from today. JUDGE