Bombay High Court
Mrs. Geeta Ashok Samant vs Miss. Padma Pannalal Syania And Ors on 25 April, 2019
Author: R.G. Ketkar
Bench: R.G. Ketkar
506-wp-5457-2019.odt
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.5457 OF 2019
Geeta Ashok Sawant ] Petitioner
Vs.
Padma Pannalal Syania and others. ] Respondents
.....
Mr. Mahesh V. Rawool, Advocate for the Petitioner.
.....
CORAM : R.G. KETKAR, J.
DATE : 25th APRIL, 2019.
P.C. Not on board. At the request of Mr. Rawool, taken up in the production board.
2. Heard Mr. Rawool, learned Counsel for the petitioner.
3. This Petition takes exception to the order dated 27 th March, 2019 passed by the Appellate Bench of the Court of Small Causes at Mumbai in Revision Application No.323 of 2018. By that order, the Appellate Court allowed the Revision Application filed by respondents No.1 to 8, hereinafter referred to as 'decree holders' and set aside the order dated 9 th March, 2018 passed by the learned trial Judge below Exhibit 45 in Obstructionist Notice No.32 of 2018.
4. Mr. Rawool submitted that the decree holders took out Execution Application No.791 of 2008 for executing the eviction decree. The execution was obstructed by obstructionist No.1 Prashant Vitthal Samant and 1 of 5 ::: Uploaded on - 26/04/2019 ::: Downloaded on - 27/04/2019 01:44:50 ::: 506-wp-5457-2019.odt obstructionist No.2 Vitthal Yashwant Samant. Obstructionist No.2 Vitthal Samant expired. The petitioner herein and respondents No.18 and 19 took out application Exhibit 31 for bringing them on record as heirs and legal representatives of deceased obstructionist No.2. Even, the decree holders took out application Exhibit 32 for bringing on record legal representatives of obstructionist No.2 Vitthal Samant(since deceased). By separate orders dated 15th December, 2012, application Exhibit 31 taken out by heirs and legal representatives of deceased obstructionist No.2 was allowed. Application Exhibit 32 taken out by the decree holders was also allowed. Aggrieved by this order, obstructionist No.1 Prashant Samant instituted Writ Petition No.809 of 2013 in this Court. By order dated 8 th July, 2013, this Court dismissed Writ Petition. Review Petition No.70 of 2013 taken out by obstructionist No.1 was dismissed on 14th August, 2013. Obstructionist No.1 carried the matter to the Apex Court. By order dated 24 th January, 2014, SLP was dismissed. Though application Exhibit 32 filed by the decree holders was allowed, still decree holders did not carry out suitable amendment. In view thereof, by order dated 22nd February, 2016, the learned trial Judge directed the Judicial Clerk Smt. R.K. Rane to carry out the amendment as per the schedule submitted with Exhibit 31 forthwith.
5. The decree holders took out application dated 30th March, 2016, inter alia, for recalling the order dated 22 nd February, 2016 as also for disposal of the obstructionist notice on the ground that the controversy between the decree holders and obstructionist No.1 was amicably settled. Obstructionist No.1 handed over possession of obstructed portion to the decree holders. This application was resisted by the legal representatives of obstructionist No.2, petitioner and respondents No.18 and 19 by filing reply dated 2 nd September, 2016. By order dated 9th March, 2018, the learned trial Judge rejected the application. Aggrieved by this decision, Revision Application was preferred by 2 of 5 ::: Uploaded on - 26/04/2019 ::: Downloaded on - 27/04/2019 01:44:50 ::: 506-wp-5457-2019.odt the decree holders. By the impugned order, the Appellate Court allowed the Revision Application. In paragraph 18, the Appellate Court recorded that the decree holders have got possession of the suit premise from obstructionist No.1 and, therefore, obstruction by obstructionist No.1 does not survive. The said fact was not disputed by obstructionist No.1 and, therefore, no further proceeding in the matter is required to be taken out. The Appellate Court was further of the view that order passed by the Executing Court impleading the legal representatives of deceased obstructionist No.2 need not be complied with. The order passed by the Executing Court directing the Judicial Clerk to implead obstructionist No.2(a) to 2(c) is without any provision and as such is liable to be set aside.
6. In paragraph 19, the Appellate Court observed that the Court cannot assist neither of the parties and it just enforces the law. The Executing Court passed order on 22nd February, 2016 suo motu directing Judicial Clerk to act for the legal representatives of deceased obstructionist No.2 against the plaintiff which was not in accordance with law. As the legal representatives of obstructionist No.2 obstructed execution of the decree, the decree holders would have taken out Obstructionist proceedings against them as well. He submitted that approach of the trial Court is perverse. The Appellate Court permitted withdrawal of the Obstructionist Notice as also application Exhibit
45. He submitted that the Appellate Court stayed its own order on the same date i.e on 27th March, 2019. The Appellate Court passed order below Exhibit 16 staying its own order for a period of 4 weeks. The said period expires on 27th April, 2019. He, therefore, got the papers produced today for interim protection.
7. Mr. Rawool states that the petitioner is present in the Court. He has tendered photo copy of her "Aadhar Card' which is taken on record and marked 'X' for identification. Upon taking instructions from her, he states that other legal representatives of obstructionist No.2 i.e respondents No.18 and 19 3 of 5 ::: Uploaded on - 26/04/2019 ::: Downloaded on - 27/04/2019 01:44:50 ::: 506-wp-5457-2019.odt are not interested in prosecuting this Petition. They have not settled the controversy with the decree holders. Statements made on instructions by Mr. Rawool are accepted. It is made clear that in case, this statement is found to be incorrect, the petitioner will be liable for the consequences that may follow.
8. A perusal of the impugned order and in particular paragraphs 18 and 19, prima facie, shows that approach of the Appellate Court was perverse. The very fact that the legal representatives of obstructionist No.2 filed application for bringing them on record is indication of the fact that they are opposing execution of the decree. That apart, even the decree holders had filed application for bringing heirs and legal representatives of obstructionist No.2 on record. Applications at Exhibit 31 and 32 were allowed by the trial Court. As mentioned earlier, the said order was challenged by obstructionist No.1 till the Apex Court. Despite this, the decree holders did not suitably amend the Obstructionist proceedings. It is, in that context, the learned Judge of the Executing Court was, prima facie, justified in directing the Judicial Clerk to carry out suitable amendment in the execution proceedings, thereby bringing on record the heirs and legal representatives of obstructionist No.2. Prima facie, the finding recorded by the Appellate Court in paragraphs 18 and 19 are contrary to settled legal principles or contrary to the orders in this matter. In paragraph 19, the Appellate Court also observed that had those legal representatives (Legal representatives of obstructionist N.2) obstructed execution of the decree, the decree holders have taken out Obstructionist proceedings against them as well. The said finding, prima facie, ignores the fact that they are already brought on record in the Obstructionist Notice.
9. In view thereof, issue notice to the respondents returnable on 20th June, 2019. The parties are put to notice that subject to the time constraint and convenience of the Court, Petition may be disposed of finally on that date.
4 of 5 ::: Uploaded on - 26/04/2019 ::: Downloaded on - 27/04/2019 01:44:50 ::: 506-wp-5457-2019.odt Notice shall further indicate that despite service if the respondents fail to appear, the Court may proceed to decide the Petition on its own merits. By way of abundant precaution, it is made clear that Obstructionist Notice No.32 of 2008 is not permitted to be withdrawn. The Executing Court will not proceed to pass any order until further orders from this Court.
10. All the parties, including the Small Causes Court (Trial Court and Appellate Court), to act upon the authenticated copy of this order.
[R.G. KETKAR, J.] 5 of 5 ::: Uploaded on - 26/04/2019 ::: Downloaded on - 27/04/2019 01:44:50 :::