Dismissed

Shyambabu Gupta v. M/S. Ronuk Industries Limited and Ors.

Bombay HC17 Sept 2013CRA/605/2013

Case brief

AI extract

What is this about?

The court dismissed a civil revision application challenging an order that allowed execution of a decree against a property. The applicant failed to prove possession since 1972 based on an unregistered agreement, and evidence produced was too late. An undertaking was accepted pending a 6-month continuation period.

What did the court decide?

The civil revision application was dismissed. The statement recorded earlier pertaining to execution was continued for 8 weeks subject to an undertaking.

Shyambabu Gupta Vs M/S. Ronuk Industries Limited and… — Execution and Attachment | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 605 OF 2013

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Shyambabu Gupta versus

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M/s. Rounk Industries Ltd. & Ors.

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: Applicant

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: Respondents

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Mr. P. G. Karande i/b Mr. S.S. Redekar for the Applicant Mr. V. P. Sawant with Mr. Prabhakar Jadhav for the Respondent No.1

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CORAM:- R. G. KETKAR, J DATED :- 17^th SEPTEMBER, 2013.

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P.C.

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1 Heard Mr P. G. Karande, learned counsel for the Applicant and Mr. V. P. Sawant, learned counsel for the Respondent No.1, at length.

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2 By this application under Section 115 of the Code of Civil Procedure,

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1908 (in short “CPC”), the applicant has challenged the judgment and order dated 14-6-2013 passed by the Appellate Bench of the Court of Small Causes in Appeal No.596 of 2006. By that order, the Appellate Court allowed the Appeal preferred by Respondent No.1-original Plaintiff and has quashed and set aside the judgment and order dated 29-7-2006 passed by

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the Learned Judge, Court Room No.5 of the Court of Small Causes at Bombay in Obstructionist Notice No.47 of 2004 in R.A.E. & R Suit No.2445

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of 1991. The Appellate court allowed the Obstructionist Notice taken out

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by Respondent No.1 and permitted Respondent No.1 to execute the decree

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after removing obstruction of the Applicant/obstructionist.

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3 In support of this application, Mr. Karande, strenuously contended that the Appellate Court committed serious error in holding that the Applicant/obstructionist has not produced any material on record to substantiate his claim that in pursuance of the leave and licence agreement dated 1-1-1972 he was in possession of the suit premises. The Appellate Court wrongly observed that save and except the said agreement, there is no material on record to substantiate the claim of the obstructionist that he is in possession of the suit premises as on 1-2-1973. He invited my attention to (i) ration card issued in the name of wife of the Applicant on 12-3-1981 (ii) the receipts of amount deposited by the Applicant in R.A.D. Suit No.409 of 1992 instituted by him. (iii) identity card issued by the State Government on 18-11-2000. He submitted that the Applicant has produced voluminous evidence on record to substantiate his case. In fact the trial court discharged the notice taken out by Respondent No.1. However, the Appellate court committed serious error in allowing the appeal filed by Respondent No.1. He therefore submitted that the application requires consideration.

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4 On the other hand Mr. Sawant supported the impugned order. He submitted that save and except the agreement dated 1-1-1972, the

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Applicant has not substantiated his claim that he is in possession on or before 1-2-1973.

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4 I have considered the rival submissions made by the parties. I have also perused the material on record. It is not in dispute that Respondent No.1 herein instituted R.A.E. & R Suit No.2445 of 1991 against Respondent Nos.2 and 3, hereinafter referred to as the Defendants. The said suit was decreed by the Trial Court on 24-6-2003. Respondent No.1, hereinafter referred to as the Plaintiff attempted to execute the decree against the Defendants in respect of Room No.19, 1 Ronuk Chawl, Ronuk Estate, Opp Shreyas Cinema, L.B.S. Marg, Ghatkopar (W), Mumbai 400086 (for short 'suit premises') on 23-6-2004 along with bailiff. However, the execution was obstructed and resisted by the Applicant herein. Respondent No.1 therefore took out Obstructionist Notice No.47 of 2004. The Applicant resisted the notice by filing reply in or about July 2004. In paragraph 2 of the reply, the Applicant asserted that he is in use, occupation and possession of the suit premises since 1972, on the basis of leave and licence agreement executed by Respondent No.1 in his favour on 1-1-1972. The Applicant also referred to the other proceedings. By

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judgment and order dated 29-7-2006, the Learned Trial Judge discharged the notice. Aggrieved by that decision, Respondent no.1 preferred Appeal

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and by impugned order, the Appellate Court allowed the Appeal.

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5 Though the Applicant has produced various documents on record, he has not produced any material on record to substantiate his claim that he is in possession of the suit premises since 1972 on the basis of the leave and licence agreement dated 1-1-1972. It is also not in dispute that the said agreement is not a registered document. The Appellate Court in paragraphs 11 and 12 of the Judgment has categorically recorded a finding that save and except the leave and licence agreement, the Applicant has not produced any material on record to substantiate his plea. All the documents which have been produced by the Applicant are after 1981 onwards. After hearing learned counsel for the parties and after considering the material on record, I am more than satisfied that the Applicant has failed to establish his plea that he is in use, occupation and possession of the suit premises since 1972. The earliest document produced by the Applicant is of 12-3-1981.

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6 In view of this, no case is made out for invocation of powers under Section 115 of the CPC . The Civil revision application fails and the same is dismissed.

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7 At this stage, Mr. Karande, upon instructions of the applicant who is present in court, orally applies for continuation of the statement made by

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Respondent No.1 and recorded in the order dated 31-7-2013 for a period of 8 weeks from today. He further states that the applicant will not further apply for extension. He states that the Applicant and all the adult family members residing with him will file usual undertaking in this court within two weeks from today after giving advance copy to the other side incorporating therein that (i) that the Applicant is in possession and nobody else is in possession (ii) that the Applicant has neither created third party interests nor parted with possession with the suit premises (iii) the Applicant will here after neither created third party interests nor part with possession.(iv) the Applicant will hand over vacant and peaceful possession of the suit premises to the Respondent No.1, in case they are unable to obtain suitable orders from the superior court within the period of 8 weeks from today.

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9 Subject to filing of undertaking in the aforesaid terms within two weeks and giving advance copy of undertaking to the other side, the statement made by Respondent No.1 and recorded in the order dated 31-7-

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2013, shall remain in force for a period of 8 weeks from today. Order accordingly.

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(R. G. KETKAR, J)

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Shyambabu Gupta v. M/S. Ronuk Industries Limited and Ors.

Case brief

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Shyambabu Gupta v. M/S. Ronuk Industries Limited and Ors.

Case brief

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