1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.5910 OF 2009 Mannikkoth M. Moosa .. Petitioner Versus P.K.Mamoo .. Respondent AND Mrs.Faridkhot A. Irani .. Plaintiffs And Yunus Abdulla & Ors. .. Obstructionists Mr.Khan Javed Akhtar for the petitioner. Mr.A.S.Uraizee and Mr.M.V.Singh i/by Uraizee and Law Associates for the original defendant. CORAM : A.S.OKA, J. DATE : 12th August 2009. ORAL JUDGMENT: . Heard the submissions of the learned counsel appearing for the petitioner. The petitioner is the original plaintiff No.3. The plaintiffs filed a suit for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The 1st respondent (P.K.Mamoo) herein is the defendant-tenant against whom the suit was filed and ex-parte 2 decree was passed in the said suit. The 1st respondent-tenant was dispossessed on the basis of the ex-parte decree in execution of the said decree. On application made by the 1st respondent the ex-parte decree has been set aside. While setting aside the ex-parte decree, restitution was ordered. An appeal was preferred by the present petitioner for challenging the order. The said appeal was dismissed. A writ petition filed by the petitioner was also dismissed. A Letters Patent appeal preferred by the petitioner has been also dismissed. Thus, the order of setting aside the ex-parte decree and order of restitution passed in favour of respondent No.1- defendant has attained finality. The 3rd to 5th respondents obstructed in execution of order of restitution. Therefore, the 1st respondent applied for removal of obstruction. The obstruction was ordered to be removed by the executing Court. An appeal was preferred by the petitioner against the said order. The appeal has been dismissed by the Appellate Bench of the Court of Small Causes. 2. It must be stated here that the case made out 3 by the original plaintiffs was that after the possession of the suit premises was obtained on execution of ex-parte decree, the said plaintiffs have let out the suit premises to one Yunus Abdulla who is one of the obstructionists. 3. It must be stated here that after the ex- parte decree was set aside, the suit for eviction filed by the original plaintiffs was heard and was dismissed. An appeal preferred by them has been also dismissed and a Writ Petition No.5511 of 2008 has been filed by the plaintiffs for challenging the dismissal of the suit which is pending in this Court for final disposal. 4. The learned counsel appearing for the petitioner has invited my attention to judgment and order dated 16th February 2009 passed by this Court in Civil Application No.364 of 2009 taken out in said Writ Petition No.5511 of 2006. The said application was filed by the petitioner herein and other plaintiffs. By the said application a prayer was made for stay of proceedings of the Appeal No.2 of 2008 which was pending before Appellate Bench of the Court of 4 Small Causes. The said appeal was filed by the present petitioner for challenging the order by which obstruction of 3rd to 5th respondents was ordered to be removed in execution of order of restitution. The said application was disposed of by this Court by observing that as of that date there was no decree for possession in favour of the petitioner and other plaintiffs but a writ petition for challenging the decree of dismissal of the suit filed by them was pending for final hearing. The learned counsel appearing for the petitioners invited my attention to what is observed in paragraph No.3 of the said order. This Court while declining to grant the prayer of stay of the proceedings of Appeal No.2 of 2008 observed that if the decision of the said appeal is adverse to the petitioner, the same shall not be given effect for a period of four weeks to enable the petitioner to file a writ petition for questioning the correctness thereof on grounds available to the petitioner in which case the such petition filed by the petitioner can proceed for hearing alongwith Writ Petition No.5511 of 2008. He submitted that this Court granted stay 5 for a period of four weeks with a view that the present writ petition can be heard and decided alongwith Writ Petition No.5511 of 2008. The submission is that as the petition for challenging dismissal of the suit for possession is pending for final hearing, even this writ petition will have to be admitted and heard alongwith the said writ petition and status-quo will have to be maintained till both the petitions are disposed of. 5. I have carefully considered the submissions. It is not in dispute that the 1st respondent- tenant was dispossessed on the basis of ex-parte decree passed in the suit filed by the petitioner and other plaintiffs. The said ex-parte decree has been set aside and as of today the suit for eviction filed by the petitioner and other plaintiffs stands dismissed. Therefore, the Courts below have passed order of restitution in favour of the 1st respondent which has been confirmed by learned single Judge of this Court as well as Division Bench of this Court. Thus, order of restitution in favour of the 1st 6 respondent has become final. Pendency of a petition filed by the petitioner and other plaintiffs in this Court for challenging the decree of dismissal of the suit for eviction is no ground to entertain this petition. As the order of restitution passed against the petitioner and other plaintiffs has been confirmed and has attained finality, the present petitioner cannot oppose restitution. In any event the present petitioner is admittedly not in possession. The obstructionists who are admittedly claiming to be in possession through the petitioner and other co-plaintiffs obstructed and the obstruction has been ordered to be removed which order has been confirmed by the order impugned in the present petition. Though the petitioner and other plaintiffs are not successful in obtaining decree of eviction against the 1st respondent and though order of restitution has been passed in favour of the 1st respondent way back in the year 1996, till today the 1st respondent has not been placed in possession. The 1st respondent tenant was evicted on the basis of a decree of eviction which has 7 been set aside. As of today the suit stands dismissed. Still the 1st respondent tenant has remained out of possession for more than 13 years. 6. The learned counsel appearing for the 1st respondent-tenant has stated that since the petition filed by the landlords is pending in this Court if the 1st respondent is placed in possession of the suit premises, he will not create any third party interests in respect of the suit premises. The statement is accepted. This statement is more than sufficient to protect the interests of the petitioner and other co- plaintiffs. As stated earlier, admittedly the petitioner is not in possession and he has already parted with possession in favour of the third party after executing the ex-parte decree. The petitioner has absolutely no right to prevent or obstruct restitution in favour of the 1st respondent. There is no merit in the petition and the same is accordingly dismissed. (A.S.OKA,J)