pvr lpast26792-10-ca328-10 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.328 OF 2010 IN LETTERS PATENT APPEAL (ST) NO.26792 OF 2010 IN WRIT PETITION NO.3886 OF 2010 Anuj Agarwal ...Appellant vs. 1.AMI Merchandising Pvt.Ltd. and others. ...Respondents --- Mr.S.G.Anay, Sr.Advocate with Mr.R.V.Govilkar & Sagar Ghogre i/b. Nagi & Associates, for Appellant. Mr.Y.S.Jahagirdar, Sr.Advocate with MR.Shreekant Mehta, Mr.Karim Vakil & Mr.B.D Souza i/b. Malvi Ranchoddas & Co. for Respondent no.1. Mr.Pranaya Goyal i/b. M/s.Wadia Gandhy & Co., for Respondent no.6. Ms.S.S.Bhende, AGP for Respondent nos.2 & 3. --- pvr lpast26792-10-ca328-10 - 2 - CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATED: 24th November, 2010 P.C.: 1. By consent, Civil application is granted in terms of prayer clause (a). (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.) pvr lpast26792-10-ca328-10 - 1 - IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL (ST) NO.26792 OF 2010 IN WRIT PETITION NO.3886 OF 2010 Anuj Agarwal ...Appellant vs. 1.AMI Merchandising Pvt.Ltd. and others. ...Respondents --- Mr.S.G.Anay, Sr.Advocate with Mr.R.V.Govilkar & Sagar Ghogre i/b. Nagi & Associates, for Appellant. Mr.Y.S.Jahagirdar, Sr.Advocate with MR.Shreekant Mehta, Mr.Karim Vakil & Mr.B.D Souza i/b. Malvi Ranchoddas & Co. for Respondent no.1. Mr.Pranaya Goyal i/b. M/s.Wadia Gandhy & Co., for Respondent no.6. Ms.S.S.Bhende, AGP for Respondent nos.2 & 3. --- CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATED: 24th November, 2010 pvr lpast26792-10-ca328-10 - 2 - P.C.: 1. This appeal has been filed by the respondent nos.4 and 5 in the writ petition. Writ Petition no.3886 of 2010 which was filed by Ami Merchandising Pvt.Ltd. challenging the order passed under Section 24 of the Maharashtra Rent Control Act directing their eviction from the premises. That order was also confirmed in the Appeal. It appears that the writ petition was heard by the learned Single Judge of this Court. At that time one of the points argued was that the order of eviction has been executed contrary to the provisions of law. The learned Single Judge in the order dated 3.8.2010 has observed that on that date the matter was adjourned at the request of the learned Senior Advocate Mr.Chinoy who was representing Respondent nos.4 and 5. On the adjourned date, the Respondent nos.4 and 5 were represented by a different Advocate. The learned Single Judge did not permit Respondent nos. 4 and 5 to change their Advocate and the pvr lpast26792-10-ca328-10 - 3 - matter was adjourned for hearing all other Respondents. This order is challenged in this appeal. On 13.8.2010, the learned Single Judge took up a Civil application being Civil application no.2103 of 2010 filed by Mrs.Sudha Agarwal for being joined as party. She was claiming that she is presently in possession of the premises. That application has been partly allowed by order dated 13.8.2010 and Mrs.Sudha Agarwal has been permitted to intervene but she has not been permitted to be joined as party. This order is also challenged in this appeal. The grievance of the present appellant against order dated 13.8.2010 is that in that order the learned Single Judge has wrongly observed that an undertaking has already been given on behalf of Respondent nos.4 and 5 that irrespective of the decision of the petition the Respondent nos.4 and 5 would hand over possession of the suit premises to the petitioner, and that the licensee would pvr lpast26792-10-ca328-10 - 4 - also give similar undertaking. The grievance of the appellant against order dated 3.8.2010 is only to the extent that the learned Single Judge has declined permission to them to change their Advocate. 2. We have heard the learned Counsel appearing for both the sides. The real controversy at this moment between the parties is in relation to the fact whether the undertaking was actually given or it was merely promised to be given. The case of the appellant is that no undertaking has been given to hand over possession of the premises to the original petitioner irrespective of the result of the petition. On the other hand, it is the case of the original petitioner that such an undertaking was orally given by the Counsel appearing for Respondent nos.4 and 5 and the licensee and the matter was adjourned to enable them to file pvr lpast26792-10-ca328-10 - 5 - written undertaking. It is also the case of the original petitioner that the oral undertaking was given by the learned Senior Advocate after taking instructions from the brother of one of the parties to the proceedings who was present in Court. In our opinion, an Appeal Court cannot go into the question whether the statement giving undertaking was actually made before the learned Single Judge or not . That question on being raised will have to be decided by the learned Single Judge. However, in our opinion, the grievance of the appellant that the learned Single Judge could not have declined to hear the original Respondent nos.4 and 5 through their new Advocate, is justified. The learned Senior Advocate Mr.Jahagirdar appearing for original petitioner also stated that the original petitioner also does not have any objection to the appellants being heard either through their previous Advocate or through their new Advocate. In this view of the matter, therefore, we modify pvr lpast26792-10-ca328-10 - 6 - the order dated 3.8.2010 to that extent. In our opinion, now the first question that will have to be considered by the learned Single Judge is Whether an undertaking has already been given by Respondent nos.4 and 5 and the licensee, to place the petitioner in possession of the premises irrespective of the decision of the Writ petition. In case, the learned Single Judge comes to the conclusion that such an undertaking in fact has been given, then next question that will have to be considered is whether Respondent nos.4 and 5 have committed breach of that undertaking or their undertaking given to file a written undertaking, and in case the learned Single Judge comes to the conclusion that there is such a breach committed by Respondent nos.4 and 5 and the licensee then the learned Single Judge would have to consider whether they are in law entitled to be heard on merit of the petition or not , and depending on the decisions pvr lpast26792-10-ca328-10 - 7 - of these questions that the learned Single Judge will have to take up the hearing of the petition on merit. It goes without saying that on all these questions, the original Respondent nos.4 and 5 would be entitled to be heard through any Advocate that they may chose to engage in accordance with law. 3. Perusal of order dated 13.8.2010 does show that in paragraph 2 the learned Single Judge has observed that Mr.Aspi Chinoy, the learned Senior Advocate after taking instructions from Mr.Vijay Agarwal who is brother of Respondent no. 4 who was present in the Court, gave the undertaking. The appellant is disputing the correctness of that observations. In our opinion, the question as to  whether undertaking was given or not has to be decided by the learned Single Judge after granting an opportunity of being heard to the appellants on that question, pvr lpast26792-10-ca328-10 - 8 - therefore, it will be proper to request the learned Single Judge to decide that question without being influenced by the above referred observations in paragraph 2 of order dated 13.8.2010. We are making this request because in the order dated 3.8.2010 that question is not decided and in Civil Application no.2103 of 2010 that question did not really arise for decision. In our opinion, even otherwise as that question is to be decided afresh, such a request is proper. It is clarified that the parties shall be at liberty to move the Hon ble the Chief Justice for placing the writ petition before the appropriate Court for further hearing. (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.)