Bombay High Court
Suresh Rajaram Kadam And Anr vs State Of Maharashtra Thru Gp And Ors on 15 January, 2019
Author: R. G. Ketkar
Bench: Rajesh G. Ketkar
WP14236_18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14236 OF 2018
(Suresh Rajaram Kadam and another Vs. State of Maharashtra and others)
Office Notes, Office Court's or Judge's orders
Memoranda of Coram,
appearances,Court's
orders, or directions,
and Registrar's Orders
Mr. R. B. Jain i/b. Legal Juris for the Petitioners.
Mr. P. P. Pujari, AGP for the Respondents No.1 and 2-State.
CORAM : R. G. KETKAR, J.
DATE : 15TH JANUARY, 2019 P.C.:
Heard Mr. Jain, learned Counsel for the petitioners and Mr. Pujari, learned AGP for the respondents No.1 and 2-State at length.
2. This Petition takes exception to the order dated 28.11.2018 passed by the learned Judge, Court Room No.6 of the Court of Small Causes at Mumbai below exhibit-45 in Execution Application No.385 of 2016 arising from R.A.E.Suit No.1747 of 2011. By that order, the learned trial Judge rejected the application made by the plaintiff No.2 for issuance of temporary injunction restraining the respondent No.4 (defendant No.2) and his family members / agents/ representatives from entering into Room No.9, Anandibai Rajaram Kadam Chawl, S. G. Barve Nagar, Bhatwadi, Ghatkoper (West), Mumbai - 400 084 (for short 'suit premises') including passage or any part thereof as 1/4 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 10:58:25 ::: WP14236_18.doc well as to appoint the Court Receiver, High Court, Mumbai under Order XL, Rule 1 of the Code of Civil Procedure, 1908 with a permission to the Court Receiver to take possession of the suit premises and to put the plaintiffs in possession of the suit premises.
3. Mr. Jain submitted that by judgment and decree dated 20.04.2016, the learned trial Judge decreed the Suit on the ground that defendant No.1 (respondent No.3 herein) had unlawfully sublet the suit premises to the defendant No.2 under Section 16(1)(e) of the Maharashtra Rent Control Act, 1999 and that plaintiffs require the suit premises reasonably and bonafide for their use and occupation and grater hardship will be caused to them in the event of refusal of passing of eviction decree. He further submitted that on 17.10.2016, decree was executed and the plaintiffs obtained possession. He submitted that defendants No.3 and 4 filed appeal challenging the eviction decree passed by the trial Court. As there was delay in filing the appeal, they took out Marji Application No.52 of 2017. By order dated 22.06.2018, the Appellate Court dismissed the application in default as defendants No.3 and 4 and their Advocate remained absent. He submitted that till date, no steps are taken for restoration of the Marji application.
4. Mr. Jain submitted that defendant No.2 broke open the lock and took possession of the suit premises on 12.01.2017. Plaintiffs, therefore, took out application 2/4 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 10:58:25 ::: WP14236_18.doc below exhibit-15 for issuing warrant of possession against the defendants. By order dated 10.02.2017, the learned trial Judge issued possession warrant against the defendants No.1 and 2. On 20.03.2017, plaintiffs took possession of the suit premises. On 06.03.2018, defendant No.2 broke open the lock and took possession. Plaintiffs, therefore, took out application exhibit-39 for issuance of warrant of possession against the defendants. By order dated 26.04.2018, the learned trial Judge issued possession warrant against the defendants. In pursuance thereof, plaintiffs were put in possession on 28.06.2018. On 06.09.2018, defendant No.2 again broke open the lock and took possession. Even prior to that, plaintiffs took out application exhibit-45 for the reliefs indicated earlier. By the impugned order, the learned trial Judge rejected the application.
5. By order dated 19.12.2018, this Court issued notice to the respondents, returnable on 07.01.2019. Apart from the usual mode of service, private service was permitted and the petitioners were directed to file affidavit of service. The office remark dated 04.01.2019 shows that as per the affidavit of service filed on 03.01.2019, notices on respondents No.3 and 4 issued by Speed Post are returned unserved as respondents No.3 and 4 refused to accept the service.
6. The matter was heard on 14.01.2019. Thus, despite service, respondents No.3 and 4 herein have refused to 3/4 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 10:58:25 ::: WP14236_18.doc accept the service.
7. In view thereof, issue bailable warrant against respondent No.4 in the sum of Rs.5,000/-, returnable on 30.01.2019. To be listed in the Supplementary Board. Bailable warrant shall be issued through Chirag Nagar Police Station, Ghatkopar. Mr Pujari will ensure that the bailable warrant is served on the respondent No.4 before the next date of hearing.
8. The parties are put to notice that subject to the time constraint and convenience of the Court, Petition will be disposed of finally at the stage of admission. The parties shall also address this Court about powers under Article 227 of the Constitution of India in the light of the decision of the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai, AIR 2003 SC 3044.
(R. G. KETKAR, J.) Minal Parab 4/4 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 10:58:25 :::