1 ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.832 OF 1997 WITH CIVIL APPLICATION No. 1848 OF 2006 Piadiam Jewels Pvt Ltd ..Petitioner. vs. Shri A.S.Aguiar & Ors ..Respondents. ------------------------------------------------ Mr P. K. Dhakephalkar, Sr. Advocate (with Ms Priya Ranade and Ms Uma Vyavaharkar) i/b Khaitan & Jaykar for the Petitioner. Mr S.R.Rajguru, Advocate (with Mr N.D.Sharma) for the Respondents. ------------------------------------------------ CORAM: D.K. DESHMUKH AND K.K.TATED,JJ DATED: 4TH NOVEMBER,2009 P.C.:- 1. By this petition, the petitioner challenges 2 the order passed by the Principal Judge of the Bombay City Civil Court, dated 11.12.1996 in Misc.Appeal No.62/1995. In the appeal before the City Civil Court, order of eviction passed by the Estate Manager, SEEPZ, Andheri (East), Mumbai dated 14.3.1995 under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was challenged. It appears that the premises were given on lease to the petitioner for a certain project in the year 1987. According to the petitioner, lease was for a period of five years. After expiry of the period of five years a fresh agreement was entered on 24.7.1995. Even before that, however, eviction notice dated 25.10.1994 was issued. 2. In the appeal the order of eviction was challenged on several grounds. One of the grounds was that after eviction notice was issued, payments of rent which were in arrears were accepted. Therefore, it amounts to waiver. 3 It was also claimed that execution of fresh agreement dated 24.7.95 also amounts to waiver of the eviction notice. Perusal of the order of the City Civil Court shows that it has considered in detail the contention that acceptance of payments of arrears of rent subsequent to the issuance of eviction notice amounts to waiver and has rejected it. However, the City Civil Court does not appear to have considered the fact of execution of fresh agreement dated 24.7.95. The learned counsel for the petitioner, therefore, submits that one of the grounds on which the order was challenged is not considered by the City Civil Court and therefore the matter should be remitted to the City Civil Court for rehearing. This request is opposed by the learned counsel appearing for the respondents. The learned counsel for the respondents submits that in this case this Court should not interfere in its extra ordinary jurisdiction under Article 226 of the 4 Constitution of India. In this case, possession of the premises was taken back by the respondents on 15.1.1997 and that the respondents are in possession of the premises. It is also submitted that in the petition there is no prayer for restoration of possession. In the submission of the learned counsel as the petitioner approached the Court after he lost possession, this Court should not interfere. The learned counsel for the petitioner on this aspect of the matter submits that the order of the City Civil Court was made on 11.12.1996 and the petitioner approached this Court in January 1997. Though it is the case of the respondents that they have taken possession of the premises on 15.1.96 the goods of the petitioner are still lying inside the premises. In any case, the respondents have neither used premises by themselves nor they have created any third party interest. In the submission of the learned counsel for the petitioner, as the petition was 5 pending in this Court, this Court should interfere and set aside the order passed by the City Civil Court. 3. Now, in the light of these rival submissions if the record of the case is perused, it is clear that there is substance in the submission made on behalf of the petitioner that execution of the fresh agreement dated 24.7.95 amounts to waiver of notice dated 25.10.94 has not been considered by the City Civil Court. However, in our opinion, that ground itself is not sufficient for us to interfere at this stage and disturb the order of the City Civil Court. 4. It appears that because there was controversy as to whether possession has been actually taken or not, this Court by an order dated 26.6.2009 appointed a Commissioner to find out as to who is in possession. The Commissioner 6 appointed by the Court visited the premises and has submitted a report dated 29.6.2009. Perusal of that report shows that the petitioner definitely is not in possession of the premises and that the premises are lying vacant save and except one safe is lying on the first floor. Therefore, the case of the respondents that they took possession of the premises on 15.1.97 can be safely accepted. If that is so, it is clear that the petitioner approached the Court by filing this petition after he lost possession. It is surprising that in the petition, there is no prayer for restoration of possession. In the absence of prayer for restoration of possession in the petition, in our opinion no order can be made for restoration of possession in favour of the petitioner. Now a period of more than ten years has elapsed after the petitioner lost possession of the premises. In our opinion, therefore, it is not proper for this Court to disturb the status-quo at this stage. Another 7 consideration for making this order is that in any case the petitioner got possession of the premises as lessee for a specific project and for the specific period, even if the eviction notice had not been issued the lease period would have come to an end in 1998. In our opinion, extra ordinary jurisdiction cannot be exercised in favour of the petitioner. The rule is, therefore, discharged. The writ petition is disposed of. No order as to costs. 5. In view of the disposal of the writ petition Civil Application No. 1848 of 2006 does not survive. Same is accordingly disposed of. (D.K. DESHMUKH,J) (K.K.TATED,J)