1 caf2461 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.2461 OF 2011 IN FIRST APPEAL NO.1358 OF 2011 Puransingh Lenasingh Manchnada ...Applicant vs. Ashwini Jagdish Chorge ...Respondent Mr.V.Y.Sanglikar i/b Ms Rekha Mehta for the applicant Mr.Vineet Naik a/w Mr.Bhavik Manek i/b Wadia Ghandi & Co. for the respondent CORAM : A.S.OKA,J. DATE : OCTOBER 19, 2011 P.C.: 1 Heard the learned counsel for the applicants and the learned counsel for the respondent. The applicants are the defendants and the Respondent is the plaintiff. This is an application for stay of the impugned decree. The operative part of the impugned decree reads thus: . Suit stands decreed with costs. . Defendants are hereby restrained from disturbing plaintiffs peaceful use, occupation and possession over suit premises i.e land admeasuring about 5000 sq ft bearing survey no. 257 and corresponding CTS no.7, 7/1, 7/2 and 7/3 and stable standing thereon admeasuring about 2500 sq. ft bearing Census no.TX-39-2/2 situated at Shastri Nagar, Mulund (W), Mumbai 400 080. 2 caf2461 . Decree be drawn accordingly. 2 The learned counsel for the applicants invited the attention of the Court to the affidavit in reply filed by the respondent-plaintiff to the notice of motion no.1508 of 2008 taken out by the applicants for setting aside the ex-parte decree passed earlier in the same suit in the year 2008. The reply has been filed on 12 th August 2008. He submitted that in the said reply, the respondent has admitted that in the year 2008 she has been dispossessed from the suit premises. 3 The learned counsel for the applicants states that there is nothing placed on record to show that after the respondent was dispossessed, she was again placed in possession and therefore, the decree for injunction which proceeds on the assumption that the respondent is in possession will have to be stayed. 4 The learned counsel for the respondent invited attention of the Court to the paragraph 5 of the cross examination of the respondent. He submitted that when the respondent was confronted with the statements in the said affidavit, she has explained the said statements by stating that it was only an attempt made by the applicants to take forcible possession on 24 th July 2008. The learned counsel for the respondent also pointed out what is stated in the cross examination of the respondent in paragraph 15 to the effect that the Advocates who represented her knew that the she did not know English language. 3 caf2461 The learned counsel for the respondent also invited the attention of the Court to the finding recorded by the learned Trial Judge on the basis of the decisions of the Apex Court. He invited the attention of the Court to the finding recorded in paragraph 34. He submitted that the Trial Court observed that the order of status quo was even continued by this Court during the pendency of the suit. He pointed out that in the light of the decision of the Apex Court, the Trial Court accepted that there was no dispossession of the respondent and there was merely a casual act of possession on the part of the applicants. He submitted that in view of the said finding, at highest, the order of status quo may be continued. 5 I have given careful consideration to the submission. Ex-parte decree was passed in the suit on 11 th January 2008. The applicants applied for setting aside the ex-parte decree by taking out a notice of motion. There was a reply filed by the respondent to the said notice of motion. In paragraph 11 of the reply, the respondent has stated that she was pushed and forced to vacate the suit premises. It will be necessary to make a reference to what is set out in paragraph 12 to 15 of the said reply. 12 I say that the Defendants have illegally entered the suit premises and took forcible possession of the suit premises in my absence thereby committing an offence of house-breaking and criminal trespass. In this respect, I have 4 caf2461 lodged a complaint in the Mulund Police station against the Defendants immediately on the same day i.e on 24-07-2008 and requested police Authorities for taking immediate action against the culprits. I crave leave to refer to and rely upon the said Police complaint dated 24.7.2008 when produced. 13.I say that though the complaint was lodged on 24.7.2008 but no action was taken by the Police Authorities and therefore, I once again through my Advocates letter lodged complaint and requested the Police Authorities to take serious action against the Defendants. Hereto annexed and marked as Exhibit C is the copy of my advocates letter. 14.I say that the Defendants are in wrongful use occupation and possession of the suit premises and as such are not entitled for any equitable reliefs from this Hon ble Court and the notice of motion is liable to be dismissed with cost to the Plaintiff. 15.I say and submit that since the Defendants have taken forcible possession of the suit premises and therefore, the present Notice of Motion for the reliefs as sought therein is not maintainable and the Notice of Motion deserves to be dismissed with cost. (underline supplied) 6 On plain reading of what is stated in the reply, 5 caf2461 it is obvious that in the year 2008, according to the case of the respondent, she was dispossessed from the suit premises. It is not merely a stray statement in the reply. In paragraphs 10,11,12,13 and 14, the respondent has not only admitted that she was dispossessed but contended that the applicants are in wrongful use and possession of the suit premises. In fact, in paragraph 15, the respondent has stated that the notice of motion taken out by the applicants was not maintainable as the applicants have taken forceful possession of the suit premises. 7 In the cross examination, the respondent was confronted with the statements made in the said affidavit in reply. It must be noted here that the explanation sought to be given by the respondent in paragraph 5 of the cross examination is that only an attempt was made by the applicants to take forcible possession on 24 th July 2008 and she continues to be in possession. In earlier part of the paragraph 5 of the cross examination, the respondent stated thus : 5...It is not true that as observed in the motion of interim injunction I was not in the possession of suit property on the date of suit. It is not true that as I was not in the possession of suit property on the date of suit both the contempt motions for breach of ad- interim injunction order are dismissed. In the said N/M prayer of restoration of possession was made by me. As per my affidavit filed on 12 th August 2008 in the Notice of Motion taken out by 6 caf2461 defendant, for setting aside the judgment and decree I have mentioned that defendants have dispossessed me on 24.7.2008... (Underline supplied) 8 Thus, it appears to me that there is a categorical admission repeatedly made in affidavit in reply dated 12 th August 2008 to the effect that the respondent is not in possession of the suit premises from 24 th July 2008. It is not the case made out by the respondent that she re-possessed the suit premises in a particular manner. She has not stated therein that the applicants indulged in stray acts of trespass. 9 Perusal of the findings recorded by the learned Trial Judge on which reliance was placed by the learned counsel for the respondent shows that the learned Trial Judge has not taken into consideration the fact that not only one but several statements were made in the affidavit in reply filed in the year 2008 by the respondent admitting that she was not in possession and the applicants were in possession. The learned Judge has observed that even though some subsequent events have happened, the possession on the date of institution of the suit i.e. November 2005 will have to be considered. Affidavit of the respondent clearly shows that there were no stray acts of dispossession but in fact, the applicants were in possession of the suit premises and the respondent was out of possession. If the statements made by the respondent in her own 7 caf2461 affidavit are considered, prima facie, the finding of the Trial Court that there was a casual act possession cannot be accepted. Though the respondent came out with a case in the cross examination that she does not know English, it is not her case that the Advocate concerned has wrongly drafted the affidavit or that it is the mistake of the Advocate. 10 Hence, prima facie, I am of the view that when the suit simplicitor for injunction was decided, the respondent was not in possession and the applicants were in possession. Therefore, execution and operation of the impugned Judgment and Decree will have to be stayed till the final disposal of the appeal. On account of dispossession in the year 2008, prima facie, the suit for injunction was not maintainable. Hence, after finding that the respondent was not be in possession, order of status quo cannot be passed. Hence, there will be interim stay in terms of prayer clause (a). JUDGE