1 wp5675.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5675 OF 1991 Mahadev Ganpat Rajbhoj ...Petitioner vs. Mr.Purushottam Sadashiv Jadhav (since deceased through L.Rs.) 1A Kalavati Purushottam Jadhav 1B Anant Purushottam Jadhav } 1C Chandrashekhar Purushottam Jadhav } 1D Jaishree Purushottam Jadhav } 1E Sunil Purushottam Jadhav } ...Respondents W. P. stands dismissed for non prosecution as against R.Nos.1B to 1D as per Court s Orders dated 30-8-2002 & 29-8-2009 Mrs.A.R.S.Baxi for the petitioner None for the respondents CORAM :A.S.OKA,J. DATE : NOVEMBER 15,2010 ORAL JUDGEMENT : 1 Heard the learned counsel for the petitioner. The petitioner is the original plaintiff who filed a suit for possession under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) against the original respondent. The suit was decree in November 1990. 2 An application was made by the respondent- original defendant for setting aside the ex-parte decree. It is stated in the petition that the said 2 wp5675.sxw application was dismissed for default. It is stated that the application for restoration of the said application was filed in which a notice was issued to the petitioner but no stay was granted. It is pointed out that an application for execution was filed by the petitioner. A notice under Rule 11 of Order XXI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) was filed by the petitioner which was numbered as Miscellaneous notice no.208 of 1981. The said miscellaneous notice was made absolute on 3rd October 1991. A notice of the said Miscellaneous notice was served to the respondent who remained absent. 3 Decree for possession was executed on 23rd October 1991. It appears that on 14th October 1991, a notice was taken out by the respondent, praying that order dated 3rd October 1991 be quashed and set aside and that the said miscellaneous notice no.208 of 1991 be restored to the file. In the said application, it is stated that the notice taken out by the respondent for setting aside the ex-parte decree was pending. On the said miscellaneous notice, it appears that on 14th October 1991, the Registrar of the Court of Small Causes issued notice returnable on 22nd November 1991 and interim stay was granted. On 24th October 1991, another miscellaneous notice was moved by the petitioner before the Court of Small Causes by which it was pointed out that stay was granted on 14th October 1991 and notwithstanding the stay, the decree for possession was executed on 23rd October 1991. Therefore, a prayer was made for restoration of the possession. 3 wp5675.sxw By the impugned order dated 24th October 1991, the learned Judge of the Court of Small Causes held that prima facie there was a stay granted on 14th October 1991 and during the operation of the order of stay, the decree was executed. Therefore, restoration of possession was ordered. The said order itself records that the notice of the said application to the decree holder was not necessary. 4 The learned counsel for the petitioner submitted that the order impugned is an order of drastic nature which was passed ex-parte. The learned counsel pointed out that not only that the application for setting aside the ex-parte decree was dismissed in default, in a declaratory suit filed by the respondent in which injunction was prayed for restraining the petitioner from executing the decree, there was no interim order granted. The learned counsel, therefore, submitted that there was no occasion for the learned Judge of the Court of Small Causes to pass an order of restoration of possession. Moreover, the petitioner was placed in possession in execution of the decree which is not yet set aside. 5 The respondent no.1 is represented by an Advocate. None appears for the said respondent. Before adverting to the merits of the case, it must be stated here that when the petitioner was already placed in possession of the suit premises in execution of the decree, a drastic order of dispossession could not have been passed without notice to the petitioner and without giving him an 4 wp5675.sxw opportunity of being heard. 6 This Court granted interim relief of stay of operation of the order of dispossession. Perusal of the record shows that Civil Application no.4283 of 1994 was filed by the respondent no.1-a in this Court for vacating interim relief of stay granted by this Court. In the said application it is pointed out that in the suit filed by the respondent, ad- interim injunction was granted against the petitioner restraining the petitioner from executing the decree. However, the said application itself records that the order of injunction was served to the petitioner on 11th December 1991. 7 There is nothing on record to show as to what has transpired in the application for restoration of the application for setting aside the ex-parte decree. There is a serious dispute as to whether there was any injunction granted in the suit filed by the original respondent. The application made by the original respondent on which ad-interim stay was granted on 14th October 1991 makes an averment that the application for setting aside the ex-parte decree was pending. As stated earlier, the order impugned has been passed without notice to the petitioner. Therefore, the said order will have to be set aside. However, before application dated 24th October 1991 filed by the original respondent for restoration of possession is disposed of afresh, the subsequent events, if any, will have to be considered and especially the outcome of the application for setting aside the ex-parte decree 5 wp5675.sxw and the declaratory suit filed by the original respondent. The contesting respondent no.1-a is not represented today. Therefore, interests of justice will be served if by setting aside the impugned order, the application is remitted to the Executing Court for passing a fresh order after giving an opportunity to both the parties to file further pleadings and to place additional documents on record. 8 Hence, I pass the following order : i) Impugned order dated 24th October 1991 is quashed and set aside and the application (Exhibit `E to the petition) for restoration of possession made by the respondent on 24th October 1991 is restored to the file of the Court of Small Causes. ii)The learned trial Judge will issue notice of the said application to the legal representatives of the original respondent- defendant. The learned Judge will permit both the parties to file further pleadings and further documents. iii)The trial Judge will hear and decide the application dated 24th October 1991 afresh as expeditiously as possible and preferably on or before 30th April 2011. iv)Till the application is decided afresh, the petitioner shall not alienate or create any third party rights in respect of the suit premises. 6 wp5675.sxw v) Rule is partly made absolute with no order as to costs. JUDGE