1 (WP9946.2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9946 OF 2010 Ms. Mani Fardonji Khambata and another .... Petitioners. v/s Mr. Meherwanjee Nausherwanji Kerawala ... Respondent Ms. F. D. Contractor for the Petitioners. Mr. M.N. Kerawala present in person. CORAM: V.M. KANADE, J. DATE : 5th May, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioners. 2. Respondent who is present in person submitted that his advocate was not available today and, therefore, the matter may be kept tomorrow. 3. Since 6th May, 2011 is the last day before vacation and, in my view, since there was no urgency in this matter, I 2 (WP9946.2010) suggested that the matter may be kept in the 1st week of June, 2011 so that both the Counsel can be heard and, if possible, the Petition could be disposed of at the stage of admission. However, the learned Counsel appearing on behalf of the Petitioners insisted that taking advantage of the impugned order passed by the lower courts, the Respondent may take such steps which would affect the rights of the Petitioners herein and, therefore, the said orders may be stayed. I, therefore, asked the Petitioners to make out a prima facie case for grant of ad-interim relief. 4. Petitioners are original Defendants and Respondent is original Plaintiff. For the sake of convenience, the parties shall be referred to as “Plaintiff” and “Defendants”. 5. Brief facts are as under:- 6. Plaintiff filed a suit before Civil Judge, Junior Division, Mahabaleshwar seeking relief of perpetual injunction and mandatory injunction. The case of Plaintiff is that he is the owner of the suit property described in Plaint in paras 1A and 3 (WP9946.2010) 1B. Plaintiff claims to be the owner of property bearing Final Plot No. 425 and 426 situated at Village Panchgani, Tal. Mahabaleshwar, District Satara. Defendants are tenants in respect of Plot No.426 and a registered lease deed dated 1/12/1936 was executed by the Predecessors of the parties herein and, later on, Mehali Cottage was rented on oral agreement of tenancy in the year 1972. The dispute between the parties is regarding actual area of the leasehold property which was given to the Defendants on lease. 7. According to Plaintiff, the suit property was not the subject matter of the lease. On the other hand, according to Defendants, the entire Plot No.426 was the leasehold property. In the suit, application for interim injunction was filed by the Plaintiff. It was contended that as per terms of the lease deed, the main building known as ‘Kerawala Lodge’ and one small Cottage known as ‘Prochi Cottage’, kitchen, small godown of porogate iron sheets and part of motor garage was the subject matter of the lease. The Mehali Cottage and garage was given on oral request to the husband of Defendant No.2 and in the lease deed it was 4 (WP9946.2010) clearly stated that only the said portion was the subject matter of the lease, though Defendants were permitted to erect straw hearts in the land adjacent to the main building. Plaintiff’s contention was that the said open site was never a part of the premises which were given on lease. 8. On the other hand, Defendants’ contention is that the entire plot was given on lease and they were permitted to use the garden adjacent to the main building. Defendants’ case is that the two properties could not be divided as alleged by the Plaintiff. 9. The Trial Court, after taking into consideration rival submissions, came to the conclusion that prima facie case was made out by the Plaintiff and irreparable loss would be caused to Plaintiff if the injunction was refused and it also came to the conclusion that balance of convenience was in favour of the Plaintiff. At the same time, the Court directed the Plaintiff to allow the Defendants or their representative to enter the suit property for the maintenance of sewage line and pump set on well till decision of the suit. Against this 5 (WP9946.2010) order, Defendants filed an appeal before the District Court. The District Court, however, dismissed the appeal and confirmed the order passed by the Trial Court. Being aggrieved by the aforesaid two orders, Petitioners/Defendants have filed this Petition under Article 227 of the Constitution of India. 10. The learned Counsel appearing on behalf of the Petitioners/Defendants submitted that the Petitioners have paid the property taxes in respect of the entire premises. It was submitted that this clearly showed that even the suit premises was part of the lease which was executed in respect of Survey No.426. It was further submitted that the Petitioners had constructed straw huts in the property and also constructed sewage line which also showed that Petitioners/Defendants were in possession. It was then submitted that the interim order passed by the Trial Court practically granted final relief in favour of the Plaintiff and, at this stage, final order by way of interim relief could not have been granted. It was submitted that lower courts had ignored the fact that the Petitioners/Defendants had fixed up 6 (WP9946.2010) the children’s playing apparatus since early 80’s and that the Plaintiff was very much aware of the said development and, therefore, it was not open for the Plaintiff to claim injunction against the Petitioners/Defendants. It was also submitted that MOU dated 30/08/2010 was still subsisting and the Plaintiff should have acted on the said MOU. 11. The submissions made by the learned Counsel appearing on behalf of the Petitioners/Defendants cannot be accepted. Both the Courts below have held that the lease deed was not in respect of open plot but was in respect of two buildings and the garage. Both the courts below have given cogent reasons while coming to the conclusion that the Plaintiff had made out a prima facie case and the Courts below have considered the balance of convenience while granting injunction in favour of the Plaintiff and, at the same time, Defendants have been permitted to enter the suit premises for the purpose of maintenance of sewage line. The Trial Court has relied on the judgment of the Apex Court in Rame Gowda (D) by lrs. Vs. m. Varadappa naidu (D) by lrs1 1 AIR 2004 (S.C.) 4609 7 (WP9946.2010) wherein the Apex Court has laid down the tests which are to be adopted for determining the attributes of settled possession. The Trial Court has also observed that no plea of settled possession has been raised by the Defendants. Both the courts below have held that, admittedly, suit properties are open site and, after taking into consideration the lease deed, it was observed that the suit property was never the subject matter of the lease between the parties and further that the case of hostile possession has not been raised by the Defendants and that they were claiming their rights on the basis of lease deed. 12. In view of the observations made by both the Courts below, in my view, no case is made out to interfere with the orders passed by the lower courts on the interim application filed by the Plaintiff while exercising jurisdiction of this Court under Article 227 of the Constitution of India. 13. The Apex Court in its judgment in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil1 in paras 62, 78 and 1 2010 (6) Mh.L.J 661 8 (WP9946.2010) 79 has observed as under:- “62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) .................. (b)................... (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. No can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Warayam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction 9 (WP9946.2010) of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) ................... (j) ................... (k) ................... (l) On a proper appreciation of the wide and unfettered 10 (WP9946.2010) power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Courts. (n) .............. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” “78. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ Courts are entertaining such disputes. In some cases High Courts, in a 11 (WP9946.2010) routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions.” “79. We would like to make it clear that in view of the law referred to above in case of property rights and in disputes between private individuals writ Court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.” 14. The ratio of the judgment in Shalini Shyam Shetty’s case1 (supra) squarely applies to the facts of the present case and this is one more reason why I am of the view that this Court should not interfere with the interim order passed by the trial court and confirmed by the lower appellate court. Writ Petition is, therefore, dismissed. (V.M. KANADE, J.) BDP 1 2010(6) Mh.L.J 661