Quashed

Devid Jeevan Jadhav and Anr. v. Jailaxmi Purandar Naik and Ors.

Bombay HC12 Dec 2012WP/8984/2012

Case brief

AI extract

What is this about?

Petitioners challenged an order for restoration of possession and inventory of movables. The Single Judge upheld the trial court order, directed inventory filing for movables instead of immediate delivery, and extended the delivery timeline.

What did the court decide?

The Writ Petition was dismissed; order confirmed; delivery date extended to 10.01.2013; inventory of movables to be prepared before delivery.

Devid Jeevan Jadhav and Anr. Vs Jailaxmi Purandar Naik and… — Property and Title | Bombay HC (2012)

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1 W.P.No.8984/12

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO. 8984 OF 2012.

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1. Devid S/o Jeevan Jadhav,
Age 42 years,Occ.Business,
R/o Pimpalwadi Road, Shirdi,
Tq. Rahata, Dist.Ahmednagar.

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2. Anita Dashrath Gaikwad,
Age 48 years, Occ.Business,
R/o Savalivihir, Tq.Rahata,
Dist.Ahmednagar.

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... Petitioners.

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Versus

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1. Jailaxmi Purandar Naik,
Age 55 years, Occ.Business,

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2. Purandar Malinga Naik,
AGe 60 years, Occ.Business,

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R.Nos.1 and 2 R/o Shirdi,
Pimpalwadi, Tq. Rahata,
Dist.Ahmednagar.

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3. Richal Devid Godetti,
Age 48 years,Occ.Business,
R/o Vrindawan Society,
Plot No.205, Pimpalwadi Road,
Shirdi, Tq. Rahata,
Dist.Ahmednagar.

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... Respondents.

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Mr.R.N.Dhorde, Senior advocate instructed by
Mr.V.R.Dhorde, advocate for the Petitioners.
Mr.A.A.Yadkikar, advocate for the Respondent
Nos.1 and 2.

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2 W.P.No.8984/12

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 12.12.2012.

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PER COURT :

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1.The present Respondents have filed a
suit for simpliciter injunction contending that
the Respondents are in possession of the suit
property on the basis of agreement styled as
'Leave and License'. The said suit purportedly
is filed on 21.3.2012. Along with the suit, the
Respondents filed an application for temporary
injunction. On the same day, the Court passed an
order directing the parties to maintain
statusquo. The defendants/present petitioners
filed their reply on 11.4.2012 and the
application for injunction came to be decided on
24.4.2012. The said application was allowed.
The defendants/petitioners were restrained from
obstructing the possession of the plaintiffs.

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2.It appears that the defendants assailed
the said order by filing an appeal bearing
Misc.Civil Appeal No.25/2012. In the said

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3 W.P.No.8984/12

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appeal, application Exh.5 was filed for stay of
the execution of the order passed by the trial
Court on temporary injunction application. The
plaintiffs it appears had filed their caveat.
According to the plaintiffs though the caveat was
filed behind their back, the order of stay was
passed on 5.5.2012. Subsequently, the said
Misc.Civil Appeal came to be dismissed. The
defendants filed Writ Petition bearing No.
6691/2012 before this Court. This Court also
dismissed the Writ Petition.

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3.During the interregnum, the plaintiffs
filed an application Exh.38 for restoration of
possession U/s 144 of C.P.C. contending that the
plaintiffs have been dispossessed by the
defendants on 6.5.2012. Thereafter, Purshis was
filed vide Exh.49 stating that the said
application Exh.38 be treated as application U/s
151 of the C.P.C. The Court eventually allowed
the application Exh.38 and directed the
defendants to restore the possession of the suit
premises to the plaintiffs. The Court also
directed panchanama to be prepared of the suit

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4 W.P.No.8984/12

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premises and movables as per inventory. The
defendants have assailed the said order in the
present Writ Petition. The petitioner has also
assailed the orders below Exhs.44,46 and 49.
Exh.44 is an application filed by the defendants
seeking explanation from the plaintiffs as to
whether the defendants would like to adduce
evidence on an application U/s 144 of the C.P.C.
Application Exh.46 was also filed by the
defendants contending that under Chapter 19 of
the Civil Manual, application U/s 144 of C.P.C.
can not be filed in the suit and it has to be
registered separately. Exh.49 was a Purshis
intimating the Court that the application Exh.38
filed U/s 144 of the C.P.C. be treated as
application U/s 151 of the C.P.C.

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4.As far as application Exh.44 is

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concerned, the same does not survive as the
plaintiffs have chosen not to lead any evidence
for adjudication of the application Exh.38.
Application Exh.46 also would not be relevant as
the plaintiffs have already filed a Purshis Exh.
49 intimating the Court that the said Exh.38 be

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5 W.P.No.8984/12

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treated as an application U/s 151 of the C.P.C.

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5.Mr.Dhorde, learned Senior counsel

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strenuously contends that the plaintiffs did not
adduce any evidence to show that earlier the
plaintiffs were in possession and have been
dispossessed on 6.5.2012. There is no evidence
to even suggest that the plaintiffs were
dispossessed on 6.5.2012. The defendants have
filed written statement on 11.4.2012 and it was
contended therein that the plaintiffs are not in
possession of the suit property. In view of the
said pleadings, it was imperative for the
plaintiffs to prove their contention made in the
application for restoration of possession. The
learned counsel further contends that if it is
accepted that the plaintiffs are dispossessed on
6.5.2012, then the order of injunction was
already stayed. The Court ought to have
considered this aspect. The learned Senior
counsel submits that the possession could not
have been directed to be delivered to the
plaintiff at an interlocutory stage. It is only
after the parties adduce their evidence then only

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6 W.P.No.8984/12

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the Court can come to a definite conclusion. In
view of the fact that the plaintiffs have not led
any evidence, the case put forth by the
plaintiffs in their application can not be
accepted.

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6.The learned Senior counsel further
contends that application U/s 144 of the C.P.C.
was not at all maintainable and the said
application is required to be registered
separately in view of the provisions of the Civil
Manual. It can not be considered in the same
suit and when there is a specific provision,
Section 151 of the C.P.C. is inapplicable. The
learned senior counsel further submits that the
list given in the application Exh.38 in respect
of movables can not be accepted as it is without
the proof of the same. The trial Court has also
directed to deliver possession of the said
movables without the proof of it. On the said

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count also the order is illegal. The learned
senior counsel further submits that the suit can
be directed to be disposed of expeditiously and
at that time the question of delivery of

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7 W.P.No.8984/12

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possession can be considered depending upon the
evidence on record. The learned senior counsel
submits that the order impugned is illegal,
deserves to be set aside.

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7.Mr.Yadkikar, learned counsel for the
Respondents/plaintiffs supports the order and
submits that the events, documents and the
pleadings on record are sufficient to establish
the case for the purpose of application U/s 151
of the C.P.C. According to learned counsel on
4.5.2012, the defendants had given an undertaking
to the trial Court that the defendants Nos.1 and
2 are abiding by the orders passed by the Court
and they would not commit contempt of the orders
of the Court. Even in the Written Statement
which is filed on 11.4.2012, the defendants
admit that the plaintiffs are in possession at
least till 3l.3.2012 and since 21.3.2012 the
order of statusquo is in force right upto
24.4.2012. So even if the defendants contend
that the possession was taken by the defendants
on or about 11.4.2012, the same was in violation
of the order of injunction passed by competent

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8 W.P.No.8984/12

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Court. According to the learned counsel when the
Purshis was already filed vide Exh.49 to treat
the application Exh.38 for restoration of
possession as an application U/s 151 of the
C.P.C., the debate as to registration of the said
application independently became redundant.
According to the learned counsel, the trial
Court has considered all the facets of the
matter. The conduct of the defendants is also
required to be considered. The learned counsel
submits that although the plaintiffs had filed
caveat before the District Court and had appeared
before the District Court, the defendants without
intimating the plaintiffs obtained the order of
stay on 5.5.2012. Such conduct of the defendants
speaks volume about the unfairness. The learned
counsel submits that the order of stay would come
into force when it is brought to the knowledge of
the Court. The learned counsel relies on the
judgment of the learned Single Judge of this
Court in a case of "Jairam Jethmal Tapadia Vs.
Kamal; Kishor Bhagirath Agrawal and another"
reported in 1996(1) Mh.L.J. 240. The learned
counsel submits that in a situation where inspite

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9 W.P.No.8984/12

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of the orders in force, the plaintiff is

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dispossessed, the Court can direct restoration of
possession by resorting to Section 151 read with
Section 94 of the C.P.C. The learned counsel
relies on the judgment of the learned Single
Judge of this Court in a case of "Harishchandra
Narayan Maurya Vs. Rajendraprasad Dargahi Varma"

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reported in 1997 (3) Mh.L.J.437. The learned
counsel also relies on the 54th Report of Law
Commission to substantiate his contention that
orders of stay would come into effect from date
of knowledge. The learned counsel submits that
with regard to the movables the inventory can be
made in respect of articles as existing and the
possession can be directed to be delivered on the
basis of the same.

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8.With the assistance of the learned
counsel, I have gone through the pleadings and
the orders.

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9.It is trite that the nomenclature of
the application is not relevant. It is the
contents of the application which would decide

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10 W.P.No.8984/12

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the nature of the application. The provisions of
Section 144 of C.P.C. would apply if the decree
or order is reversed and would certainly not
apply in respect of contingency as has arisen in
this case. The plaintiff had already filed
application Exh.49 i.e. Purshis requesting the
Court to treat the said application U/s 151 of
the C.P.C. and the matter was proceeded treating
the said application U/s 151 of the C.P.C. In
matters of such nature, it is the application U/s
151 read with Section 94 of the C.P.C. which
would be tenable.

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10.It is a matter of record that since
21.3.2012, the order directing the parties to
maintain statusquo was in force and the same
continued till 24.4.2012. On 24.4.2012, the
order of injunction was passed restraining the
defendants from interfering with the possession
of the plaintiffs. In appeal filed by the
defendants it appears that the plaintiffs had got
the order of stay to the said injunction order on
5.5.2012. The said stay continued upto
16.7.2012. On the said date the stay came to be

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11 W.P.No.8984/12

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vacated. The appeal came to be dismissed and the
order of injunction passed by the trial Court
came to be confirmed. The defendants thereafter
filed Writ Petition before this Court bearing
Writ Petition No.6691/2012. The said Writ
Petition was also dismissed by this Court vide
order dated 13.8.2012, confirming the injunction
granted by the trial Court. Today also the order
of injunction against the defendants is in
force.

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11.The undertaking given by the defendants
before the trial court vide Exh.32 on 4.5.2012 is
also self-explanatory. The said undertaking
states that the defendants Nos.1 and 2 would not
commit contempt of the orders passed by the Court
and they would abide by the orders passed by the
Court regarding injunction. Even on 4.5.2012,
the defendants made the Court to believe that
they would abide by the orders of injunction
passed against them. The Written Statement filed
on 11.4.2012 by these defendants seems to be
self-contradictory. It states that the
plaintiffs are in possession upto 3l.3.2012,

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12 W.P.No.8984/12

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which would be clear from para 8 of the Written
Statement. So also in para 13 of the Written
Statement, the defendants stated that the period
of leave and license agreement came to an end on
1.4.2012, the defendants asked the plaintiffs to
deliver the possession, whereas in para 19 of the
Written Statement, the defendants states that the
alleged possession of the plaintiffs came to an
end on 3l.3.2012 and plaintiffs were never in
possession of the suit property. That if the
defendants contend in pleading that possession
was already taken on 11.4.2012, or so then the
same was in contravention of the orders of
statusquo passed on 21.3.2012 and in force upto
24.4.2012 and thereafter the order of injunction
is still in force. The defendants do not state
that today the plaintiffs are in possession. On
the contrary plaintiffs assert their possession

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over the suit property, naturally the said
possession has been obtained by the defendants in
flagrant violation of the prohibitory orders of
the Court.

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12.The injunction is granted to prevent a

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13 W.P.No.8984/12

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party from taking law in his own hands. The suit
was filed by the plaintiffs seeking injunction to
protect their possession. Even as per pleadings
in the Written Statement, the plaintiffs were in
possession of the suit property on the date of
filing of the suit and the contention of the
defendants are that plaintiffs can not remain in
possession after 3l.3.2012. Such act of force

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on behalf of the defendants can not be protected.
It is not a case of the defendants that
plaintiffs have voluntarily given possession. If
the defendants would have come with a positive
case that the plaintiffs have voluntarily given
possession then the question would have arisen of
plaintiffs adducing evidence. In the present
case the possession having been obtained by force
or in other words not having obtained with the
consent of the plaintiffs, such possession
transgressing the orders of the Court can not be
protected and the trial Court was justified in
invoking its powers U/s 151 read with Section 94
of the C.P.C. The said provisions are meant to
prevent abuse of process of Court and law and by
passing the impugned order, the trial Court has

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14 W.P.No.8984/12

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rightly exercised the said powers.

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13.In view of the above, impugned order
with regard to summarily evicting whosoever will
be in possession does not suffer from any
illegality and is required to be confirmed and is
hereby confirmed.

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14.With regard to the delivery of
possession of movables, I have observed that the
plaintiffs have not led any evidence to show that
the movables as per list which is detailed in the
application Exh.38 really existed, in absence of
the same, it would not be appropriate to direct
delivery of all the articles enlisted in the said
list i.e. in application Exh.38.

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15.The inventory shall be made of the
articles i.e. the movables in the suit premises
at the time of delivery of possession of the said
property to the plaintiffs. The inventory i.e.
prepared of the list shall be filed in the Court.
The Court shall after verifying about its
ownership pass necessary orders in respect of

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15 W.P.No.8984/12

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the said movables. The order in respect of
movables is modified to this effect.

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16.The Writ Petition is accordingly
dismissed, save and except with the observations
as made above. However, there shall be no order
as to costs.

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17.At this stage, Mr.Dhorde, learned
senior counsel submits that effect and operation
of this order be stayed for four (4) weeks.
Mr.Yadkikar, learned counsel opposes the said
request made by learned Senior counsel for the
petitioners.

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18.Consideringthefactthatthe

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possession of the immovable premises is directed
to be handed over by the defendants to the
plaintiffs, time granted by the trial Court to
hand-over possession on or before 21.12.2012 is
extended upto 10.01.2013.

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asp/office/wp898412

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16 W.P.No.8984/12

Devid Jeevan Jadhav and Anr. v. Jailaxmi Purandar Naik and Ors.

Case brief

What is this about?

What did the court decide?

Devid Jeevan Jadhav and Anr. v. Jailaxmi Purandar Naik and Ors.

Case brief

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What did the court decide?

What the court decided

A compact analysis

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