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CIVIL APPELLATE JURISDICTION
Writ Petition Stamp No. 92869 / 2020
Kamal Shyamsunder Narang & Anr. .. Petitioners
Vs.
Mahendra V. Rathod & Ors. .. Respondents
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Mr. Vishal Kanade a/w Mr. Prayag Joshi a/w Ms. Vedanshi
Shah i/by Mr. Bipin Joshi, Advocate for Petitioner.
Mr. S.M. Vyas, Advocate for Respondent No.1(a) and 1(b).
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MARCH, 2021.
ORAL JUDGMENT
1. Rule.
2. Rule made returnable forthwith. Heard fnally with the consent of parties.
3. Plaintiffs in RAC Suit No. 965/3493 of 1982 have challenged the order dated 4 th March, 2020 passed by the Appellate Bench, Small Causes Court at Mumbai in Miscellaneous Appeal No. 371/2004 in Miscellaneous Notice NO. 97/2003.
4. Facts of the case are as follows; Petitioners – Plaintiffs instituted the ejectment suit against the Respondent No.2 (Defendant No.1), M/s Shamji Devji & Company in respect of godown premises ad-measuring 5825 sqaure feet., on the ground that he had unlawfully sublet part of the premises, ad-measuring 3575 square feet to the Respondent No.3 (Original Defendant No.2) and part premises ad-measuring 2250 square feet to the Respondent No.1 (Original Defendant No.3 - hereinafter called ‘Rathod’ for short). The suit was decreed ex-parte on 14 th October, 2002. Decree was put to execution and possession warrant was issued. On st January, 2003, upon executing the warrant, premises (in part) in possession of Defendant No.1 and 2 was taken over; however warrant could not be executed in respect of the premises in possession of Defendnat No.3 – Rathod and Defendant No.4, as it was found under lock and key. On 23 rd January, 2003 premises found locked was broke open and possession was taken over. Herein, issue is in respect of premises of Rathod. Subsequently, Rathod vide notice no. 97/3 had applied for to set aside the ex-parte decree dated 14 th October, 2002 and for restoration of possession ad-measuring 2250 square feet, which was taken over on 23 rd January, 2003.. The learned trial Court set aside the ex-parte decree passed against Rathod vide order dated 18 th November, 2013; however declined to restore the possession. This order was challenged by Rathod in Appeal No. 317/2004 before the Appellate Bench, Small Causes Court at Mumbai. The Appellate Court set aside the order dated 18 th November, 2003 in entirety. Feeling aggrieved by the order dated 18 th October,
2014. Rathod had approached this Court under Article 227 of Constitution of India in Writ Petition 2639/2019. This Court vide order dated 15 th April, 2019 disposed of the Petition in the following terms; “(i) The impugned judgment and order dated 18.10.2014 passed by the Appellate Bench of the Small Causes Court at Mumbai in 2b(iv) Appeal No.317/2004 is set aside. The order dated 16.11.2018 passed by the Appellate Bench in Review Application No.14/2016 is also set aside. (ii) 2b(iv) Appeal No.317/2004 is restored to its original position. The learned Counsel appearing for Defendant No.3 and plaintifs No.1(a) & (b) assure that they will appear before the Appellate Court on 30.4.2019 and for that purpose no fresh notice be issued to them.
(iii) The Appellate Court will examine whether the learned trial
Judge has exercised the discretion and validly and whether defendant No.3 has made out a case for restitution of the possession of the suit premises.
(iv) All contentions of the parties in that regard are expressly kept open.
(v) Rule is made absolute in aforesaid terms with no order as to costs. Order accordingly.”
5. Thus to be seen that in terms of clause (iii) of the order, reproduced above, Appellate Court was directed to examine, “whether the learned trial Judge had exercised the discretion properly and validly and whether Defendant No.3 has made out the case for restitution of the suit premises.”
6. In pursuant to the order as aforestated, the Appellate Court decided the Miscellaneous Civil Appeal and passed the following order; “1. The Misc. Appeal No.317/2004 is hereby allowed with costs.
2. The Misc. Notice No.97 of 2003 in R.A.E. Suit No. 965/3493 taken out by the defendant No.3 before the Trial Court is made absolute.
3. The impugned order to the extent of rejecting the prayer clause-c of the defendant No.3 to restore the possession of the suit premises is hereby set-aside.
4. The plaintif/ respondent Nos.[1] (a) & 1(b) are directed to restore the area admeasuring 2000 sq. ft. out of the suit premises to the defendant No.3 within a period of one month from today.
5. Inform the Trial Court accordingly.”
7. Aggrieved by the order dated 4 th March, 2020 passed in Miscellaneous Appeal No. 317 / 2004, Original Plaintiffs have preferred this Petition.
8. Mr. Kanade, learned Counsel for the Petitioners would submit that in terms of the order passed by this Court on 15 th April, 2019, the Appellate Court ought to have, just decided, whether while rejecting the prayer under Section 144 of CPC, trial Court had exercised the discretion properly and validly. It is submitted that the Appellate Court has traveled beyond the scope and ambit of direction, contained in clause (iii) of the order and thereby ventured to decide the area of the suit premises to be restored to Rathod. Mr. Kanade submits that the decision of the Appellate Court to restore the possession of the premises to Rathod, to the extent of 2000 sq. feet was arbitrary and without affording opportunity to the Petitioners, to lead the evidence. It is submitted that there were rival claims and disputes in respect of the area to be restored to Rathod. Submission is that in the plaint, the Petitions would assert the area ad-measuring 2250 square feet was unauthorisably let out to Rathod. Mr. Kanade has brought to my notice that Rathod had further let out area ad-measuring 750 square feet to the Defendant No.4 Whereafter, Rathod had fled the suit against the Defendant No.4 for ejectment and a possession of the area ad-measuring 750 square feet. The suit fled by Rathod was decided ex-parte on 17 th March, 2007. It appears vide this decree, Rathod was held entitled to recover 750 sq. feet. area (part of the said premises) from the Defendant No.4.
9. In consideration of these facts, it is submitted the Appellate Court ought to have framed the issue relating to area of premises to be restored to Rathod and referred the same to the trial Court in terms of Rule-25 and Order-41 of CPC. Evidence on record suggests the Appellate Court could not have decided the area to be restored to Rathod. In view of the conficting and overlapping interest of the parties, the Appellate Court ought to have relegated the parties to the trial Court to determine the area of the premises to be restored to Rathod.
10. In fact in backdrop of the facts of the case, I am unable to understand as to how and on what basis, the Appellate Court has concluded the extent of area to be restored to Rathod. Thus, in consideration of the facts and for the reasons stated hereinabove, in my view the ends of justice would meet, if the trial Court is directed to determine the area of the suit premises to be restored to Rathod. As such the operative part of the impugned order contained in Clause No.
(iv) passed in Miscellaneous Appeal No. 317 / 2004 is quashed and set aside. Accordingly, the Petition is partly allowed.
11. In fact, it is Plaintiffs’ case that the Defendant No. 1 has unlawfully sublet the part of suit premises ad-measuring 2250 square feet to Rathod. Admittedly, Rathod is out of possession since January, 2018, though the ex-parte ejectment has been set aside against him. In light of these facts, the trial Court is directed to decide Rathods’ application under Section 144 of CPC (being Notice No. 97/2003) as expeditiously as possible and preferably on or before December, 2021.
12. In peculiar facts of the case, the Petitioners are directed not to create further third party rights in respect of the property of which possession was taken on 23 rd January, 2003. The Petition is allowed in the aforesaid terms and disposed of accordingly. Rule is discharged. (SANDEEP K. SHINDE, J.)