Bombay High Court
Khamgaon Rashtriya Shikshan Prasarak ... vs Tilak Rashtriya Vidyalaya Khamgaon, ... on 25 November, 2016
Author: Prasanna B.Varale
Bench: Prasanna B.Varale
1 wp6654.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6654 OF 2015
Khamgaon Rashtriya Shikshan
Prasarak Mandal, Khamgaon, a
public trust duly registered under
the Maharashtra Public Trust Act,
1950, through its Secretary Sunil
Gulabchand Saraf, Address : Madan
Plot, Civil Lines, Khamgaon, Tahsil
Khamgaon, District Buldana. ... PETITIONER
VERSUS
Tilak Rashtriya Vidyalaya Khamgaon,
a public trust duly registered under the
Maharashtra Public Trust Act, 1950,
through its Secretary Sudhakarrao
Ramchandra Ajbe, Address : Tilak
Tashtriya Vidyalaya, Khamgaon,
Tahsil - District Buldana. ... RESPONDENT
....
Shri H.R. Gadhia, Advocate for the petitioner.
Shri A.V. Bhide, Advocate for the respondent.
....
CORAM : PRASANNA B.VARALE, J.
DATED : 25TH NOVEMBER, 2016.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with consent of the learned Counsel appearing on behalf of the respective parties. Shri A.V. Bhide, the learned Counsel waives notice on behalf of the respondent.
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2. By way of present petition, the petitioner challenges the order dated 23.09.2015 passed by the learned Civil Judge, Junior Division, Khamgaon. The application filed by the petitioner for appointment of Court Commissioner was rejected. The petitioner was occupying the premises let out to him. A suit was filed by the petitioner seeking declaration and injunction. The respondent/public trust contested the suit by filing Written Statement has also submitted a counter claim. The suit was dismissed and the counter claim was decreed. Though an appeal was preferred against the judgment, no interim orders in favour of the petitioner was passed. The respondent filed the execution proceedings.
An application was filed at the instance of the petitioner objecting the execution raising a ground of the description of the property in the decree and the description in the application do not match. The said application was rejected. Being aggrieved by the order, the petitioner filed Civil Revision Application before this Court. This Civil Revision Application was also dismissed. The possession warrant was issued by the executing Court.
It seems that there was a bailiff report expressing the inability to execute the possession warrant. Another application was filed by the respondent for issuing fresh warrant of possession. Though the application was opposed by the petitioner, vide order dated 13.11.2013, the bailiff was directed to execute the decree. It was the grievance of the petitioner that the bailiff executed the decree illegally and trespass the limit set by the order dated 13.11.2013. The petitioner approached the learned District ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 ::: 3 wp6654.15 Judge raising the grievance. The learned District Judge on the application by the petitioner in respect of the execution through the bailiff raising certain allegations, held that the aspect of the bailiff report is a judicial aspect and it cannot be taken in the administration capacity. The petitioner submitted an application for appointment of Court Commissioner to inspect the disputed property. It was the submission of the petitioner in the application that the Decree Holder misled the Court and it would be necessary to appoint Court Commissioner for his local inspection for fair and final decision in the matter. The learned Court below found no favour with the applicant and the application was rejected.
3. Shri Gadhia, the learned Counsel for the petitioner vehemently submits that there are two contrary bailiff reports and there is a difference in description of the property. By inviting my attention to copy of rough sketch placed on record at "Annexure-K", the learned Counsel submits that the said property was consisting of earlier four constructed rooms, a playground and six rooms and a garage. He further submits that during the pendency of the proceedings, these four rooms were converted into six rooms. It is further the submission of the leaned Counsel for the petitioner that the respondent was entitled only for the possession of six rooms and the open space adjacent to nullah but was not entitled for the possession of the six rooms and garage. He also submits that the first bailiff report i.e. placed on record at "Annexure-F" refers to the objection raised by the ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 ::: 4 wp6654.15 petitioner. Shri Gadhia, the learned Counsel submits that the said document clearly shows that the petitioner raised a strong objection for the execution. The learned Counsel then submits that the copy of the second bailiff report is placed on record at "Annexure-H" cannot be accepted. The petitioner was not present at the relevant time. He submits that it was the specific contention of the petitioner that the bailiff acted under the dictates of the respondent and submitted untrue report. It is further the submission of Shri Gadhia, the learned Counsel for the petitioner that as there was a change in the description of the property as there were two bailiff reports, the petitioner had approached the learned Civil Judge, Junior Division, Khamgaon for appointment of the Commissioner. It is submitted that the Commissioner could have inspected the spot and submitted the report and the same would have helped the Court to decide the controversy in effective manner. The exercise of the appointment of Court Commissioner and seeking the report from the Commissioner would not have caused any prejudice to the respondent. Thus, it is the submission of Shri Gadhia that the learned Civil Judge, Junior Division, Khamgaon erroneously rejected the application filed by the petitioner seeking appointment of the Commissioner.
4. Per contra, Shri Bhide, the learned Counsel for the respondent submits that the petitioner is not approaching to this Court with a bona fide intention but the only intention of the petitioner is to prolong the ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 ::: 5 wp6654.15 proceedings and create hurdles in the way of respondent by filing the applications one after another. The learned Counsel vehemently submits that the ground of mis-description of the property is set at rest under the order of this Court dated 14th June, 2010 in Civil Revision Application No. 41 of 2009. Shri Bhide, the learned Counsel for the respondent further submits that the objection raised by the petitioner in respect of the second bailiff report that the petitioner was not present at the time of the execution, holds no water. He also submits that the second bailiff report in clear and unambiguous terms, reveals the presence of the petitioner on the spot. The learned Counsel, therefore, submits that no error is committed by the learned Judge in rejecting the application.
5. On the backdrop of the rival contention of the parties and the learned Counsel for the respective parties and on perusal of the material placed on record, I am of the opinion that the petition is devoid of any merits. The material placed on record clearly shows that time and again, the petitioner made attempts before the Court below as well as before this Court raising a ground of mis-description of the property and all his attempts were failed. Though the learned Counsel for the petitioner by inviting my attention to the rough sketch placed on record, makes an attempt to submit that the suit property was inclusive of the earlier four rooms subsequently converted into six rooms and a playground adjacent to nullah and not inclusive of six rooms and garage at one end of the ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 ::: 6 wp6654.15 playground. There is absolutely no material on record to show that there was such a counter submission in respect of this position in the proceedings. Insofar as the ground of mis-description is concerned, Shri Bhide, the learned Counsel for the respondent was justified in submitting that this ground was dealt with by this Court in the judgment and order dated 14th June, 2010 in Civil Revision Application No. 41 of 2009. It would be useful to refer to the observations of this Court in the said order. The same reads thus :-
"The plaintiff in original proceedings canvassed that the warrant of possession and property described in the counter claim above, does not match each other and consequently, the directions to break open lock and taking possession of the property in response to decree in the counter claim could not be issued.
The learned Executing Court, on perusal of the possession warrant and description given in the counter claim found that both details matched to each other and there is no mis-description of the property. The learned Judge consequently, dismissed the application raised by the J.D. (original plaintiff) dated 19.3.2009. the order is questioned by J.D. With the assistance of learned counsel perused the description of the property in paragraph 19 in the counter claim and as referred in paragraph 10 of the execution proceedings, I find, in all material particulars, the details are ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 :::
7 wp6654.15 matchin. The additional details were also furnished as to what was the nature of occupation in the room including one room was occupied by Principal's daughter other was used for college rooms including tin sheds, outhouse, W.C. Bathroom, toilet and students hostel, other construction and the playground. These details of the user of the property, are in no sense, will change the description, with its measurement as incorporated in paragraph 10 of the possession warrant moved by the landlord, to match to measurement details in paragraph 19 of the counter claim.
I have asked learned counsel whether there was any room between landlord and tenant so as to cause any mis-description or prejudice to the J.D. in understanding the nature of the execution. I can see that ther was no such other contractual arrangement between the landlord or tenant (original plaintiff and original defendant)."
6. This Court, in clear and unambiguous terms, ultimately rejected the application. Insofar as the ground raised by the petitioner in respect of the second bailiff report is concerned, the petitioner was not present at the relevant time, it would be useful to refer to the said bailiff report dated 09.12.2013. It is stated in the report that when the bailiff under the orders of the Court attended the spot and made enquiry with the Headmaster in respect of the petitioner-Secretary, it was informed to him through the Headmaster of the school by establishing contact with the petitioner that the petitioner was out of station and till evening he was not ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 ::: 8 wp6654.15 in a position to return to Khamgaon. When such fact was being endorsed, the Headmaster again established contact with the Secretary. The petitioner-Secretary informed the Headmaster that he would return back within one hour and he further informed to ask the bailiff to wait for some period. Accordingly, the bailiff was present on the spot and on arrival of the petitioner, he started proceedings. It is further stated in the report that the petitioner was informed about the execution warrant and was requested to open lock of the rooms and remove the material kept in the room in presence of the panchas. The petitioner neither opened the lock of the rooms nor removed the material kept in the rooms. As such, the bailiff was required to break open the locks and remove the material kept in the rooms and was required to handover the possession. Perusal of the panchnama further shows that the lock of the room was broke open and further the material kept in that room such as wooden table, wooden chairs, certain vessels and the bed etc., were removed from the room. The inventory also refers to the other material material, such as ceiling fan, table fan, stoves, gas cylinders etc. The documents such as the panchanamas bear the signatures of the panchas. Thus, on perusal of this material, the submission of the petitioner that at the relevant time, the petitioner was not at all present and the action was taken in absence of the petitioner cannot be accepted. Even the application filed by the petitioner raising objections as well as raising grievance against the bailiff is rejected by the learned District by order dated 23.01.2014. The learned Civil Judge, ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:32:58 ::: 9 wp6654.15 Junior Division, Khamgaon, considering all these aspects and also considering the order passed by this Court in Civil Revision Application, found no favour with the petitioner/applicant. The learned Judge referred to the judgment relied upon by the learned Counsel for Decree Holder wherein it was observed that the Judgment Debtor was making application after application so as to frustrate the execution of the decree and though these applications were rejected, the Judgment Debtor again submitted an application on the ground that the suit premises was not in existence. The learned Civil Judge, Junior Division, Khamgaon relying on the judgment of this Court, found that the objections raised by the petitioner were having no substance and rejected the application. In my opinion, no error is committed by the learned Civil Judge, Junior Division, Khamgaon. The petition thus being devoid of merit deserves to be dismissed.
7. In the result, the petition is dismissed. Rule is discharged.
JUDGE *rrg.
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