1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1296 OF 2008 FIRST APPEAL NO. 1296 OF 2008 FIRST APPEAL NO. 1296 OF 2008 in CHAMBER SUMONS NO. 602 OF 2007 IN S.C.S SUIT NO. 6805 OF 1994 1. Shri Sharad Gajanan Ambole, ) Age-57 years, Occu: Not known ) 2. Gurunath Pundalika Ambole ) Age-45 years, Occ: Not known ) 3. Mrs. Sarada Gurunath Ambole ) Age-40 years, Ocu: Not known. ) All residing at Room No.10A, ) Ground Floor, Ram Mandir, ) G.D.Ambekar Road, Mumbai- ) 400 012. )..Appellants (Orig.Obstructionists) Vs. 1. Smt. Gauramma Kumarappa Medar ) (Deceased) 2. Shankar Kumarappad Medar ) Age about 74 years,Occu:Retitred) 2 R/at 61-BG, Ferry Road, ) Madha Island Mumbai 400 061. ) 3. Gangappa Kumarappa Medaer ) 4. Kankaappa Kumarappa Medar ) Age about 62 years, Occ:Service ) 5. Linganna Kumarappa Medar ) Age about 59 years,Occ:Service ) 6. Smt. Laxmi Arvind Uggera ) Age about 59 years, Occ: Service) 7. Smt. kanchamma Lingappa medar ) Age about 51 years,Occ:Housewife) 8. Siddlinga Kumarappa Medar ) Age 51 years, Occu:Housewife ) 9. Neelkantha Kumarappa Medar ) Age 46 years, Occu: Service, ) Orig. Plaintiffs No.1,3,5 to 9 ) residing at 240/Paral ) Bhoiwada, Mumbai 400 012. ) original plaintiff No.4 residing) at C/o. Sanjivani Nilaya, ) New Bamboo Bazzar, Devanagiri Dist. Chitradurga, State of ) Karnataka, Now inBombay ) residing with the Plaintiff No.1) Mother, orig. Plaintiffs No.1,3-) 3 9 through their Cosntituted ) Attorney i.e. plaintiffs No.2 ) Shri Shankar Kumarappa Medar. ) 10. Ulukuntappa Ullappa Naik (died) On 18.3.2007, therefore ) Chamber Summons No.602 of 2007 ) abated against Ulukuntappa Naik ) 11. Smt. Mareka Kubera Naik ) adult, Occu: Housewife. ) 12. Nagesh Kubera Naik ) Adult, Occu: Seervice ) 13. Shekhar Kubera Naik ) Adult, Occu: Service. ) 14. Raja Kubera Naik ) Adult, Ocu: Service. ) 15. Ashok Kubera Naik, ) Adult, Occu: Service. ) 16. Hanumanta Ullappa Naik ) Adult, all residing at ) Room No.10A, Ground Floor, ) Ram Mandir, G.D.Ambekar Road, ) Boombay 400 121 )..Respondents (Resp.Nos.1 to 9 - org.plffs & Nos.10 to 16 orig. Defendants) 4 Mr. G.S.Godboke, Advocate i/b. Mr. Ashok B.Tajane,Advocate, for the appellants. Mr. R.A.Thorat, Advocate with Mr. V.K.Gupta i/b. Gupta & Gupta, Advocates, for Respondents Nos. 1 to 9. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 7th August, 2008. DATE: 7th August, 2008. DATE: 7th August, 2008. JUDGMENT. JUDGMENT. JUDGMENT. 1. With consent of the learned Counsel for the parties, appeal is taken up for final hearing at admission stage itself. Heard the learned Counsel for the parties. 2. This Appeal is filed by the Obstructionists against the order dated 30.4.2008 passed by the learned Judge, City Civil Court in Chamber Summons No.602 of 2007 in S.C. Suit No.6805 of 1994 whereby the learned Judge made the Chamber Summons absolute and rejected the objections taken by the obstructionists. 3. To state in brief, the respondent Nos. 1 to 9 in 5 the present appeal are the original plaintiffs and respondent Nos.10 to 16 are the original defendants in S.C.Suit No.6805 of 1994. That suit was filed by the plaintiffs claiming possession of the suit property being Room No.10A, Opp. Ram Mandir, G.D.Ambekar road, Mumbai 400 012. According to the plaintiffs, one Shivappa was the original tenant in entire Room No.10. He had allowed one Ullappa, predecessor of the defendants, to occupy a part of that room, hich is suit room No.10-A as a gratuitous licensee for some time. The said Ullappa died and after his death, the defendants committed trespass in the suit room. Therefore, the plaintiffs filed the suit for removal of the trespassers and for possession of the suit room. The defendants contended that the said Ulappa was carrying on business along with Shivappa in the suit room and Shivappa had left the business and thereafter Ullappa was carrying on the business alone. Thus he had become sub-tenant and after his death, the defendants had become sub-tenants over the suit property. By the Judgment dated 11.6.1998, the said suit was decreed in favour of the plaintiffs rejecting the contention of the defendants and holding that the defendants were trespassers in the suit property. Against that judgment and decree, the defendants had preferred First Appeal No.630 of 1998. That appeal was also dismissed on 6 11.2.2005. The learned Single Judge of this Court also came to conclusion that the defendants were trespassers over the suit property. Against dismissal of the appeal, the defendants filed Special Leave Petition No.5401 of 2005 raising several questions of facts and law. However, that Special Leave Petition came to be dismissed by the Hon’ble Supreme Court on 18.3.2005. The defendants (petitioners before the Supreme Court) were granted time till 30.9.2005 to vacate the premises in question upon filing usual undertaking before the Supreme Court within four weeks from that date and accordingly Nagesh Kubera Naik, who was one of the defendants, filed an undertaking before the Supreme Court on the same day and as per that undertaking, the defendants were to hand over possession to the plaintiffs on or before 30.9.2005. According to the plaintiffs/decree holders, inspite of the undertaking, the defendants/judgment debtors did not hand over possession and, therefore, they commenced the execution proceedings for taking possession. However, the Obstructionists, who are the appellants before this Court, obstructed the possession when the bailiff went to the site to hand over possession of the suit property to the plaintiffs. Therefore, the plaintiffs took out Chamber Summons No.602 of 2008 to remove the obstruction under Order XXI Rule 97 of C.P.C. 7 4. The obstructionists contested the said Chamber Summons contending that on 27.9.2005, the landlady Smt. Usha Keni had inducted Obstructionist No.1 Sharad - Gajanan Ambole as her tenant in the suit premises, i.e. Room No.10A. The lease agreement was registered and the obstructionist No.1 is to pay rent of Rs.250/- per month. Thus, according to the obstructionist, the obstructionist No.1 has directly become tenant of the landlady and therefore the plaintiffs/decree holders cannot execute the decree and take possession. They also raised some questions of law. After hearing the parties, the learned Judge, City Civil Court passed the impugned order dated 30.4.2008 making the Chamber Summons absolute and rejected the contention of the obstructionists. That order has been challenged in the present Appeal. 5. Heard the learned Counsel for the parties. Mr. Godbole, the learned counsel or the obstructionists/appellants vehemently contended that the defendants were not the trespassers but legal heirs of Ullappa, who was the gratuitous licensee, if not sub-tenant. Therefore, the defendants were also gratuitous licncees. According to him,, if the defendants were gratuitous licensees, the suit for 8 possession could not be filed before the City Civil Court, but could be filed only before the Small Cause Court under Section 41 of the Presidency Small Cause Courts Act as held by the Full Bench of this Court in Prabhudas vs. Manharbala 2007 (5) Mh.L.J.341 (decided Prabhudas vs. Manharbala 2007 (5) Mh.L.J.341 (decided Prabhudas vs. Manharbala 2007 (5) Mh.L.J.341 (decided on 10.7.2007) on 10.7.2007) on 10.7.2007). The learned Counsel contended that the Full Bench only interpreted the law as it was always and therefore this authority would be applicable even to the suit which was already decided and according to him, such objection of jurisdiction could be taken even at the execution stage and if it is found that the Court which had passed the decree lacked the jurisdiction, that decree is non est and cannot be executed. 6. On the other hand, Mr. Thorat, the learned counsel for the plaintiffs/respondents contended that in S.C.Suit No.6805 of 1994, after hearing the evidence of both the parties and in view of the admission of one of the defendants, who was examined as a witness, the trial Court had come to the conclusion that the defendants were trespassers and this finding was upheld by the High Court in appeal and the Special Leave Petition field by the defendants was dismissed by the Supreme Court. He contends that the finding, that the said defendants were trespassers, is not open to challenge in the present proceeding. He also contended that as the defendants 9 were held to be trespassers and not the sub-tenants or the gratuitous licensees, the City Civil Court had jurisdiction to entertain the suit and to pass appropriate decree. He further contended that the present appellants/obstructinos were not the parties to that litigation. That litigation has reached its finality. Therefore, in the present proceeding, the question of jurisdiction of the City Civil Court cannot be raised. According to him, after dismissal of the Special Leave Petition, the defendants were granted time upto 30.9.2005 to hand over possession subject to filing undertaking as usual and as per the undertaking the defendants were to hand over possession on or before 30.9.2005 to the plaintiff. He pointed out that before the due date, the plaintiffs had issued a notice dated 9.8.2005 through their Advocate Shri C.H.Pursnani to the defendants to hand over possession on the due date. In response to that notice dated 9.8.2005, the defendants replied through their Advocate, Ms. Anjana S. Datta, who by her letter dated 18.8.2005 addressed to Shri C.H.Pursnani, informed that defendants would vacate the premises on 30.8.2005. A copy of this letter was also addressed to Smt. Usha S.Keni, the landlady. The learned counsel contended that the landlady was never in possession of the premises nor the defendants were to hand over the possession to her. The defendants never 10 handed over possession to the plaintiffs as per the undertaking given before the Supreme court. According to him, the defendants,obstructionists and the landlady Smt. Usha Keni appear to have entered into some conspiracy and fraudulently she executed an agreement of tenancy in favour of Sharad Ambole on 27.9.2005 and thus they have committed a fraud on the Court and their act is, in fact, contempt of the Court also. In view of these circumstances, he contended that the obstructionists have no just cause or reasons to raise any obstruction and therefore, their objections to execution are liable to be dismissed. He contended that the trial Court was right in rejecting their contentions and making the Chamber Summons absoluter. 7. After careful perusal of the record, particularly the previous litigation between the plaintiffs and the defendants, I find that the defendants had previously filed RAD Suit No.5184/1979 wherein they had claimed the declaration that they were the sub-tenants in the suit premises. However, as the said suit had abated and thus they could not get any relief therein. After that the plaintiffs filed Suit No.6805 of 1994 against the defendants for possession of the suit premises contending that the defendants were trespassers in the suit premises. All the contentions of the defendants 11 about the sub-tenancy or about the license were rejected and the trial Court came to conclusion that the defendants were the trespassers. In the appeal filed by the defendants, this finding of the trial court was upheld and the appeal was dismissed. The Special Leave petition filed by the defendants before the Supreme Court was also dismissed. On perusal of that Special Leave Petition, it appears that the defendants had also raised the question about the licensees or gratuitous licenses, but they did not find favour with the Supreme Court and they were directed to hand over the possession on 30.9.2005. Thus, the issue as to whether the defendants were the trespassers in the suit property has reached finality and it has been held by the Courts that they were the trespassers. Therefore, now the present obstructionists cannot again re-open that question and contend that the defendants were not trespassers but gratuitous licensees. Admittedly, if the defendants are held to be trespassers, the City Civil Court had jurisdiction to entertain the suit and to pass decree for possession. Taking into consideration these facts and circumstances, the obstructionists, who came into picture for the first time on 27.9.2005 on the basis of an agreement of tenancy executed between the obstructionist No.1 and smt. Usha Keni, cannot ask this Court to re-open the issues and the findings in Suit 12 No.6805 of 1994 once it is held that the defendants were trespassers, the contention of Mr. Godbole that the defendants should be held as gratuitous licensees cannot be accepted and therefore the authority of the full Bench of this Court in Prabhudas vs. Mahharbala (cited Prabhudas vs. Mahharbala (cited Prabhudas vs. Mahharbala (cited supra) supra) supra) is not applicable. Therefore, I do not find any substance in the contention of Mr. Godbole that the City Civil Court did not have jurisdiction to entertain the suit filed by the plaintiffs and at least on that ground the obstructionists cannot raise any objection or obstruction to the execution of the decree. Mr. Godbole also contended that the order which is passed bythe Court suffering from inherent lack of jurisdiction is a nullity and in support of his contentioon, he relied upon Kiran Singh vs Chaman Paswan AIR 1954 SC Kiran Singh vs Chaman Paswan AIR 1954 SC Kiran Singh vs Chaman Paswan AIR 1954 SC 340, and Chiranjilal Goenka vs. Jasjit Singh and others 340, and Chiranjilal Goenka vs. Jasjit Singh and others 340, and Chiranjilal Goenka vs. Jasjit Singh and others (1993) 2 SCC 507 (1993) 2 SCC 507 (1993) 2 SCC 507. He also contended that if a decree is passed without jurisdiction and is nullity under the law, the objection to the jurisdiction can be raised even at the stage of execution and he relied upon Sushil Sushil Sushil Kumar Mehta vs. Gobind Ram Bohra (1990)1 SCC 193. Kumar Mehta vs. Gobind Ram Bohra (1990)1 SCC 193. Kumar Mehta vs. Gobind Ram Bohra (1990)1 SCC 193. However, as I found that the defendfants were held to be trespassers and not the gratuitious licensees, the City Civil Court had jurisdiction to entertain the suit. Therefore, all the authorities are not applicable to the facts of the present case. 13 8. Order XXI Rule 97 of C.P.C. provides that where holder of a decree for the possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court. complaining of such resistance or obstruction. Rule 98 provides that upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application. Sub-rule (2) provides that where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, the Court shall direct that the applicant be put into possession of the property. 9. In view of the obstruction raised by the obstructionists, the Chamber Summons No.602 of 2007 was taken under Order XXI Rule 97 and the obstructionists also filed their reply. The parties were called upon to 14 lead evidence in support of their rival contentions and evidence was actually recorded. The evidence on record clearly shows that as per the undertaking given by the defendants before the Supreme Court, they were to hand over possession of the suit premises to the plaintiffs on or before 30.9.2005. Before that due date, the plaintiffs gave a notice dated 9.8.2005 through Mr.Pursnani to the defendants informing about their undertaking and calling upon them to hand over possession on the due date. The record reveals that the said letter was replied by Anjana S.Datta, Advocate on behalf of the defendants on 18.8.2005 and by that reply, the defendants had informed the plaintiffs that they would vacate the premises on 30.8.2005. Admittedly, for last about 50 - 60 years or even more than that the landlord or the landlady was never in possession of the suit premises because it was let out to Shivappa. After death of Shivappa,his legal heirs are the tenants. Therefore, Smt. Usha Keni the landlady was neither in possession nor she was entitled to get possession from the defendants. The defendants had given a copy of the letter dated 18.8.2005 to her informing that the defendants would hand over possession to the plaintiffs, but it appears that after giving that letter, the defendants did not hand over possession to the plaintiffs either on 30.8.2005 or on the due date. 15 Three days before the due date, i.e. on 27.9.2005, Smt. Usha Keni executed an agreement of tenancy in favour of the obstructionist no.1 Sharad inducting him as a tenant in the suit premises. The evidence reveals that Smt. Usha Keni was not acquainted with any of the obstructionists before that date. It is contended that through some broker, she had entered into contract with the obstructionists. Taking into consideration all these circumstances, it appears that when the defendants found that they could not retain possession, they must have hatched some conspiracy with the obstructionists as well as the landlady and as a result of that conspiracy, the landlady executed an agreement of tenancy in favour of the obstructionist No.1 - Sharad Ambole and inducted him in the suit premises. If these facts are taken into consideration, it appears that an attempt was made to play fraud by executing an agreement of tenancy and by inducting the obstructionist No.1 in the suit so as to avoid compliance of the undertaking given before the Supreme Court. In fact, it is a serious matter. Admittedly, during the pendency of the suit and the appeal filed therein, the obstructionist No. 1 had no right, title or interest in the suit property. He claims right of tenancy on the basis of the agreement executed after the decree in favour of the plaintiffs had become final and before it could be executed In view 16 of this, it must be held that the resistence or obstruction was occasioned without any just cause by the obstructions either at the instigation of the judgment-debtors and/or on the basis of transfer of tenancy right made in favour of the obstructionist No.1 during the pendency of the suit or the execution proceedings. Therefore, such obstruction is liable to be rejected. 10. Taking into consideration the facts, legal position and the evidence on record, I find that the learned Judge of the City Civil court was right in rejecting the obstruction and making the Chamber Summons absolute. The impugned order needs no interference. Taking into consideration the nature of obstruction and the manner in which it is created, the Appeal is liable to be dismissed with costs. 11. The Appeal stands dismissed with costs of Rs.5,000/- (Rupees five thousand only). 12. At this stage, Mr. Ashok Tajane, the learned Counsel for the appellants/obstructinists makes a request that the trial Court had stayed the execution till 30.6.2008 and that order was continued by this Court so far and, according to him, in the interest of 17 justice, the said order be continued for some more time. However, taking into consideration the facts and circumstances and the conduct of the parties showing the attempt on the part of the obstructionists/appellants to play a fraud against the Court, it would be misuse of the process of the Court if further stay is granted. Therefore, the request stands rejected. 13. As the Appeal itself is dismissed, the C.A. No.3371 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)