1 caw.679.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.679 OF 2010 IN CIVIL APPLICATION NO.86 OF 2010 IN WRIT PETITION NO.2359 OF 2009 Dolly Jamshed Tafty ...Applicant Versus Amarsen Mansen Goragandhi & Ors. ...Respondents ...... Mr.S.M.Gorwadkar as amicus curiae. Mr.D.G.Dhanure for Applicant. Mr.G.S.Godbole i/b Mr.Nitin Mulye for Respondents 1 to 3. ...... CORAM:- A.M.KHANWILKAR, J. DATED :- AUGUST 6, 2010. P.C. 1. This is one of the peculiar matters which this Court is called upon to deal with. The Applicant before this Court filed Writ Petition challenging the Judgment and Decree passed by the Rent Court dispossessing her from the suit premises dated 18th October 2003. Consequent to the said decree, the landlord resorted to execution proceedings and succeeded in getting possession of the premises on 11th October 2004. Much later, the Applicant moved for setting aside of the action of dispossession and of the decree passed by the Court. That was an unsuccessful attempt of the Applicant 2 caw.679.10.sxw which made her to file the present Writ Petition before this Court. Several contentions were raised in the Writ Petition. In fact, this Court provided legal aid to the Applicant, even though, the Applicant had engaged Advocate of her choice. The circumstances in which services of Mr.Gorwadkar as amicus curiae were offered to the Applicant is already matter of record as noted in the order dated 6th February 2009. 2. Mr.Gorwadkar who appeared as amicus curiae made his best effort to persuade the Court by raising several issues. After deliberations on more than one date, eventually, some tentative opinion was formed which was conveyed to the Applicant who was present in Court. She was counseled not only by Mr.Gorwadkar but by me personally. Eventually she willingly accepted the proposal which was given to her by the Court. The Respondent agreed for the arrangement of paying amount of Rs.8,00,000/- (Rupees Eight Lakhs) to the Applicant towards full and final settlement of all her claims. It is not in dispute that the said amount has already been paid and deposited. 3. Thereafter, Application has been filed before this Court through another Advocate making grievance that the Respondent after the order 3 caw.679.10.sxw dated 23rd March 2009, after discharging liability of payment, has proceeded to sell the property to some third party. When the Application was taken up on 5th January 2010, statement made by the Counsel for the Respondents was recorded by the Court that the Respondents had no intention to dispose of the property as they themselves wanted to reside therein. An affidavit came to be filed by the Respondents in this Court which reiterates the said statement but notes that the Respondents were presently not intending to dispose of the suit property. 4. Taking clue from the said affidavit and the statement, present Application is filed for recall of the order dated 5th January 2010 as well as 23rd March 2009. This Application has been heard today after repeated adjournments. According to the Respondents, the Application is not maintainable for the simple reason that the Writ Petition came to be finally disposed of in terms of order dated 5th January 2010. In that view of the matter, the Court had become functus officio to alter any terms contained in the said order. As a matter of fact, the arrangement recorded in the order dated 23rd March 2009 was nothing but Consent Terms arrived at between the parties noted therein. The said order does not even remotely suggest that after payment were to be made by the Respondents, they could use the 4 caw.679.10.sxw premises in question only for their personal use and were debarred from creating third party rights therein. It is further argued by Mr.Godbole that even under the statutory provision contained in Section 13(1)(g) of the Bombay Rent Act, regarding bonafide requirement, the fetter put on the landlord cannot be more than one year. In the present case, decree was passed against the Applicant not only on the ground of nuisance and annoyance but also being persistent defaulter. In such a situation, the question of placing any restriction on the landlord of creating third party interest in the premises after getting back possession thereof, does not arise. 5. Even though I find force in the submission canvassed on behalf of the Respondents that this Court should be loath in entertaining the present Application, it was suggested to the amicus curiae to ask the Applicant who is present in Court as to whether she was prepared to face the situation where the stated orders were recalled as a result of which she would not get the amount of Rs.8,00,000/- (Rupees Eight Lakhs) and also face the uncertainty of her Writ Petition eventually being dismissed on merits. That was conveyed to the Applicant and explained by the amicus curiae in the presence of all the Advocates appearing in the matter and others. The Applicant, after full deliberation, on realising the consequence of facing 5 caw.679.10.sxw such a situation, has agreed for arrangement that considering the fact that she has to spend substantial amount on her medical treatment, she would be more than content if she gets further sum of Rs.2,00,000/- (Rupees Two Lakhs) from the Respondents. The Respondents although initially were reluctant to accede to this request as on the earlier occasion, but have shown grace in accepting the suggestion made by the Court which was possible only because of the good office used by the Advocate appearing for the Respondents. Since the Respondents have now agreed to pay further sum of Rs.2,00,000/- (Rupees Two lakhs) without prejudice to their contentions and on humanitarian considerations, no further indulgence is necessary in the present Application. 6. The Application stands disposed of on the assurance given by the Respondents that further amount of Rs.2,00,000/- (Rupees Two Lakhs) will be deposited in this Court within two weeks from today. Since the Applicant does not have any Bank Account, she has requested to deposit the amount of Rs.2,00,000/- (Rupees Two Lakhs) in this Court itself, to be invested in appropriate fixed deposit scheme of a nationalised bank and the interest accruing thereon can be made over to the Applicant from time to time, as is the arrangement provided even in respect of amount of Rs. 6 caw.679.10.sxw 8,00,000/- (Rupees Eight Lakhs) deposited by the Respondents. As and when the Applicant requires the amount for her medical treatment, it will be open to the Applicant to take out formal application in that behalf which can be considered appropriately. This arrangement has been agreed by the Applicant having regard to the fact that she does not have a permanent place of residence and is presently staying in Dharam Shala. 7. Considering the background in which this Court is called upon to deal with the present Application, I am in agreement with the submission made by the Counsel for the Respondents that no further Application on any count for modification of any of the terms and conditions of the agreement between the parties recorded in order dated 23rd March 2009 or for that matter, the present order, should be entertained at the instance of the Applicant and more so, by merely changing the Advocates. 8. The Applicant has been explained about the contents of this order and she has accepted the terms now finally agreed upon between her and the Respondents and undertakes not to file any further application for similar relief in future. She further states that the amount which has been deposited or to be deposited by the Respondents and invested be later on, after her 7 caw.679.10.sxw demise, should be made over to the charitable trust to be formed by her. In the event, such option is not exercised by the Applicant, the amount will have to be appropriated in accordance with law. 9. The Respondents through Counsel, in all fairness, submits that the direction of payment of cost by the Applicant in Paragraph No.4 of the order dated January 5, 2010, be waived by the Court. That request is accepted. 10. The Court expresses deep sense of gratitude for the able assistance given by Mr.Gorwadkar to espouse the cause of the Applicant as amicus curiae. 11. Application disposed of on the above terms. (A.M.KHANWILKAR, J.)