-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.208 OF 2008 APPEAL NO.208 OF 2008 APPEAL NO.208 OF 2008 Viren Bhatia & Ors. ...Appellants vs. The Board of Trustees of the Port of Bombay & others ...Respondents Mr.P.K.Dhakephalkar, Sr.Advocate i/b Mr.J.G.Reddy for the Appellants Mr.Makhija i/b M/s.Mulla & Mulla for the Respondents CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 20, 2008 : FEBRUARY 20, 2008 : FEBRUARY 20, 2008 P.C.: P.C.: P.C.: 1. Heard learned counsel for the parties. The challenge in the First Appeal is to the Judgment and Order dated 12th July 2007 passed by the learned trial Judge in a Chamber Summons taken out by the first Respondent in execution of decree for possession passed in favour of the first Respondent. The chamber summons was taken out under Rule 97 of Order XXI of the Code of Civil Procedure,1908 for removal of obstruction of the Appellants. 2. The first Respondent filed a suit against the Respondent Nos.1-A to 1F, 2 and 3 for possession of the suit premises. The said suit was decreed. As the Appellants obstructed in execution of the decree, the aforesaid chamber summons was taken out. The said chamber summons has been made absolute by the impugned order. -2- 3. The submission of the learned Senior Counsel for the Appellants is that the chamber summons has been decided without giving an opportunity to the Appellants of leading evidence. His submission is that though the first Respondent was aware that the Appellants were in possession, the first Respondent did not implead the Appellants as parties to the suit. Placing reliance on the decision of the Apex Court in case of Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai [A.I.R. 2004 S.C. page 1815), he submitted that in fact the Appellants had applied for compromise in terms of the policy of the first Respondent and the said application has not been considered. He submitted that the Appellants ought to have been granted an opportunity to adduce evidence in this behalf. 4. I have carefully considered the submissions. It will be necessary to refer to the stand taken by the Appellants before the executing court while contesting the chamber summons. I have perused the affidavit filed by the second Appellant as well as other obstructionists. A contention raised in the affidavit is that the first Respondent has accepted the obstructionists as tenants or lawful sub-tenants. The obstructionists / Appellants have not claimed any other independent right,title or interest to occupy the suit -3- premises. 5. Additional affidavit has been filed by the fourth Appellant. The said affidavit discloses that an attempt was made to apply for regularisation of the possession by tendering a sum of Rs.50,000/- to the first Respondent. However, the amount has not been accepted by the first Respondent and communications have been issued accordingly to the concerned obstructionists pointing out the reasons for inability of the first Respondent to accept the request for regularisation. 6. It is true that all rights of the obstructionists will have to be decided while deciding the proceeding under Rule 97 of Order XXI of the said Code. However, in the present case the Appellants have not claimed any independent right, title or interest to occupy the suit premises. This is not a case where any amount has been accepted from the Appellants by the first Respondent towards occupancy charges or towards regularisation of their possession. Considering this factual aspect, it was not at all necessary for the trial court to grant an opportunity to the Appellants to lead oral evidence. 7. In my view, there is no merit in the Appeal and the same deserves to be dismissed. However, at this stage a prayer is made that the first Respondent may be directed to consider the -4- application for regularisation/compromise. 8. Hence, I pass the following order : i) The Appeal is dismissed with no order as to costs. ii) It is obvious that the dismissal of the Appeal will not come in the way of consideration of the application for compromise/regularisation, if any, pending before the first Respondent. 9. At this stage, the learned counsel for the Appellants seeks time to vacate the suit premises. 10. Notwithstanding the dismissal of the Appeal, the Appellants shall not be evicted till 30th June 2008 subject condition of the Appellants filing in this Court usual undertakings to vacate the suit premises. The undertakings shall be filed within a period of six weeks from today. If undertakings are not filed within stipulated time, it will be open for the first Respondent to proceed with the execution. 11. In view of dismissal of the Appeal, Civil Application No.3720 of 2007 does not survive and the same is disposed of. -5- JUDGE JUDGE JUDGE