DEVIDAYAL ROLLING MILLS Vs. PRAKASH CHIMANLAL PARIKH

JUDGEMENT

(1.) A plot of land measuring 2000 sq. yards situated at Syani Road Bombay is the subject matter of this litigation. One part of the case is that the above property belonged to Chimanlal D. Parikh. He executed a will on 20-10-1952 in favour of his minor sons Prakash Chimanlal Parikh and Pankaj Chimanlal Parikh (hereinafter referred to as respondents Nos. 1 and 2). Chimanlal D. Parikh died on 5-12-1952. Devidayal Rolling and Refineries Pvt. Ltd. (hereinafter referred to as respondent No. 3) was in occupation of the said property as a tenant. Smt. Mayadevi widow of Chimanlal D. Parikh and executors named in the will It dated 20th October, 1952 acting on behalf of respondents Nos. 1 and 2 filed a suit No. 344 of 1958 for eviction against respondent No. 3 in the Bombay High Court. On 31-10-1961 a consent decree for eviction was passed in the above suit with the condition that the decree shall not be executed for a period of 12 years i.e. up to 31-10-1973. The respondents Nos. 1 and 2 in order to execute the said decree submitted an application under Order 21, Rule 16 and Order 21, Rule 22, C.P.C. in the Bombay -High Court. The said applications were allowed and respondents Nos. 1 and 2 were substituted as decree-holders by an order of the High Court dated 10-12-1973. M/s. Devidayal Rolling Mills (hereinafter referred to as "the petitioners") appeared in the execution proceedings and contended that they had purchased the business along with interest in the disputed property from Devidayal Rolling and Refineries Private Limited, the respondent No. 3. The petitioners also filed a declaratory suit in January, 1974 in the Small Cause Court at Bombay for being declared as tenants in the above property. The petitioners also filed an interlocutory application for restraining the respondents Nos. 1 and 2 from executing the decree for eviction. The respondents Nos. 1and 2 denied any tenancy having been created in favour of the petitioners. The Small Cause Court rejected the grant of any injunction in favour of the petitioners and a revision filed against the said order was also dismissed by the High Court. The petitioners then filed a Special Leave Petition No. 4925 of 1977 in this Court, after the disposal of which, the present interim application No. I has been filed.

(2.) A Bench of three Judges of this Court on 13-12-1977 dismissed the Special Leave Petition but respondents Nos. 1 and 2 agreed not to execute the decree before 1 st January, 1980 on an usual undertaking to be given by the petitioners as well as respondent No. 3. The order dated 13-12-1977 having an important bearing in the case is reproduced as under: Upon hearing counsel, the Court passed the following -

(3.) In pursuance to the above order, undertakings were filed on 15-12-1977. Subsequently an application C. M.P. No. 18403 of 1978 was submitted on 8-8-1978 to the effect that after the filing of the undertakings the petitioners and respondent No. 3 had handed over peaceful and vacant possession of the premises to respondents Nos. 1 and 2 on 25th June, 1978. It was further submitted that on 25th June, 1978 itself a fresh tenancy had been granted by respondents Nos. 1 and 2 in favour of the petitioners. A copy of the agreement granting fresh tenancy was also filed along with the application. The above application was filed in view of the fresh agreement of tenancy warranting the obtaining of discharge of the undertakings filed before this Court. The following prayer was made in the said application: