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CIVIL APPELLATE JURISDICTION: Civil Misc. Petition (C) No. 13066 of 1989.

IN Civil Appeal No. 2628 of 1980.

A.K. Sen and V.B. Joshi for the Petitioner.

G.L. Sanghi, C.M. Lodha, Shankar Ghosh, H.M. Singh and C.P. Mittal for the Respondents.

The Judgment of the Court was delivered by V. RAMASWAMI, J. In this petition the petitioner has prayed for convicting Respondents 1 and 2 for committing the contempt of this Court by violating the terms and conditions of the undertaking filed in Civil Appeal No. 2628 of 1980 and for a direction that whosoever is in possession of the suit premises be handed over to the petitioner. The peti- tioner as the owner and landlord of the property, Tika No. 3, City Survey House, bearing No. 344/345, Jambli Naka, Thane, consisting of ground floor, first floor and second floor in which the business of restaurant known as Ramakr- ishna Hindu Hotel or Ramakrishna Hotel is carried on, filed Civil Suit No. 2 13 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name, P.A. Dange, V.A. Dange, Haribhan Shivale and Giri Anna Shetty for eviction from the above said premises. The suit was decreed by the Trial Court. The first respondent who was the first defendant in the suit alone filed an appeal against this decree before the Dis- trict Court. The appeal was dismissed confirming the order of eviction. Thereafter, the first respondent filed writ petition No. 354 of 1975 in the High Court of Bombay and that writ petition was also dismissed. Though defendants 2, 3, 4 and 5 did not file the appeal or take the matter fur- ther to the High Court they were implead as respondents in the appeal and the writ petition filed by the first respond- ent herein. The first respondent thereafter filed Civil Appeal No. 2628 of 1980. The said appeal was dismissed by this Court on 18th of August, 1987. However, at the request of the appellant this Court allowed the appellant to contin- ue to be in possession and carry on the business till 31.3.1989 subject to the "appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file an usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicat- ing within the time aforesaid the decree of execution shall become executa- ble forthwith."

Some time in the beginning of 1989 one Raghuram A. Shetty second respondent in the contempt application filed Civil Suit No. 306 of 1989 in the Thane Civil Court before the IIIrd Joint Civil Judge, Senior Division, Thane, for a declaration that the decree for eviction obtained in respect of the suit premises in Civil Suit No. 2 13 of 1970 cannot be executed against him and for a permanent injunction, against the petitioner herein. Pending the suit he had also filed an application under Order 39 Rule 1 and 2 read with section 151 of CPC for a temporary injunction from executing the decree for eviction. By an order dated 5.4.1989, the IIIrd Joint Civil Judge, Thane, granted a temporary injunc- tion against the petitioner herein restraining him upto the disposal of Civil Suit No. 306 of 1989 from executing the decree for eviction given in Civil Suit No. 213 of 1970. Thereafter, the petitioner has filed this contempt petition both against his original tenant-K.M.M. Shetty and also against the second respondent who was the plaintiff in Civil Suit No. 306 of 1989.

As stated earlier the Suit No. 213 of 1970 was filed by the petitioner for eviction not only against the original tenant-K.M.M. Shetty but also against P.A. Dange, V.A. Dange and two others. The case of the petitioner-landlord was that the tenant had sub-let the premises to the said P.A. Dange- defendant No. 2 and V.A. Dange defendant No. 3. The tenant filed written statement contending that he had allowed the second defendant to manage and conduct the said hotel busi- ness under the terms and conditions set out under an agree- ment made and entered into between them and that Municipal licence for the business had always been and still in the name of the tenant first defendant. Neither P.A. Dange nor V.A. Dange ever stated that they had parted with the posses- sion to the second respondent either as a licensee or in any other capacity. Again in the Writ Petition No. 354 of 1975 filed in the High Court the first respondent had stated that P.A. Dange was permitted to conduct the said business under an agreement dated 29th February, 1970 on his paying the tenant a sum of Rs.500 per month by way of royalty, that this agreement was subsequently renewed on 29th January, 1970 increasing the royalty amount from Rs.500 to Rs.600 per month but, however, during the pendency of the appeal before the learned District Judge, Thane, defendants 2 and 3 had returned the business together with the premises, stock-in- trade, furniture, fittings and all paraphernalia which were given to them for conducting the said business to the first respondent herein and that the first respondent had been in sole possession and occupation of the said premises and of the business conducted therein and he himself had been carrying on the business from that time. Again in this Court when he filed the special leave petition the first respond- ent prayed for stay of dispossession. This Court by an order dated 5th November, 1980 granted stay of dispossession on condition that the respondent will continue to pay compensa- tion equivalent to rent every month regularly to the peti- tioner herein and that he shall not induct anybody else in the premises in question.

In the Civil Suit No. 306 of 1989, the second respondent had prayed for the injuction on the basis that he was a licensee originally from P.A. Dange and later under the tenant himself and that though there was no privity between the petitioner and the second respondent, by reason of certain amendments to the Bombay Rents, Hotel and Lodging House Rates Control Act he had become the tenant directly under the petitioner herein and entitled to protection. An interim injuction has been granted by the IIIrd Joint Civil Judge, Thane, on the ground that it is necessary, till the plaintiff establishes his right, to allow him to be in possession. The learned Judge was not well-founded in this view. In the light of the earlier statements made by the first respondent-K.M.M. Shetty, P.A. Dange and V.A. Dange in the eviction proceedings and in this Court and in the light of the undertakings given by the first respondent and 17 others the learned Judge should have directed the plaintiff to prove his claim in the suit first before any relief is given against the defendants pending the suit. It may be mentioned that the argument of the learned counsel of the petitioner was that the first respondent had falsely insti- gated the second respondent to file the suit and obtain an injunction. If this contention is true then the first re- spondent is guilty of contempt in not handing over vacant possession as per the undertaking and in fact the second respondent would equally be guilty as abetor of the breach. However, we are not going into the question of the second respondent's right in Civil Suit No. 306 of 1989 and that may have to be decided after trial. Suffice it to say that we are of the view that the order of injunction against the petitioner from executing the decree against the second respondent is not justified in this case. We would like to add that as the facts of the undertaking given and the various statements made by the tenant in the eviction pro- ceedings were before him, we would have expected the learned Civil Judge, Thane, to have directed the parties to obtain a clarification from this Court, if there was any doubt as to the executability of the decree passed by this Court.