BALVANT N VISWAMITRA Vs. YADAV SADASHIV MULE

JUDGEMENT

(1.) The present appeal is directed against the judgment and order passed by the High Court of Bombay on January 14, 1998 in Civil Writ Petition No. 3384 of 1986. By the said order, a single Judge of the High Court, while exercising supervisory jurisdiction under Article 227 of the Constitution, held the decree sought to be executed against the petitioners-respondents herein - as void ab initio.

(2.) To appreciate the controversy raised in this appeal, few relevant facts may be stated : There was a piece of land bearing Survey No. 888 admeasuring 85 x 35 sq. feet at village Kanjur, Bombay. The land was let out by Nagendra Vishwamitra, father of the appellants to one Papamiya. The said Papamiya constructed hut over the land and was paying rent to the landlord. It was the case of the landlord that the tenant did not pay rent regularly and was in arrears of rent from November 1, 1963 to October 31, 1976 i.e. for 13 years. Since Papamiya died, proceedings were initiated against heirs of deceased Papamiya. According to the appellants, a notice was issued to heirs and legal representatives of Papamiya terminating the tenancy by a registered post but the heirs could not be served and the notice came back. Again, a notice was sent under certificate of posting which had not come back. Thus, there was a presumption of service of notice. It was also the case of the appellants that on the outer-door of the suit premises, a copy of the notice was affixed. On 4th April, 1977, a suit for possession was filed by the plaintiffs-appellants against heirs and legal representatives of deceased Papamiya in the Court of Small Causes, Bombay, being RAE. Suit No. 1992 of 1977. On 25th March, 1980, the case was listed for recording evidence. One Mr. G. R. Singh, advocate was appearing for the defendants. On that day, evidence of plaintiff No.2. was recorded. He stated that deceased Nagendra Vishwamitra was his father and the plaintiffs were owners of the property. It was also stated by him that Papamiya had a son by name Ahmed and a notice was sent to him by registered post. However, the notice packet came back with remark expired. Deceased Ahmed had legal heirs, but plaintiff No.2 did not know their names. They were residing at Bhandup on Bombay Agra road and not in the suit premises. He further stated that he made enquiries as to heirs and legal representatives of deceased Ahmed both at Kanjur and Bhandup addresses, but could not get sufficient information. He, therefore, filed a suit against heirs and legal representatives of Papamiya. He also produced a packet containing the notice which was returned with remark "not known". He tendered the certificate by which notice was sent under certificate of positng. According to him, that letter was not returned. A certificate and packet were produced by him in his evidence. He also stated that a notice was pasted outside the suit premises.

(3.) The plaintiff No.2 was partly cross-examined by Mr. Singh. In the cross-examination, he stated that the notice was pasted at both the addresses i.e. Kanjur as well as Bhandup. The notice was also affixed on the property let out to the defendant. The case was thereafter adjourned. On 18th June, 1980, when the matter was called out for further hearing, Mr. Singh stated that he had no instructions from the defendants in the matter who had remained absent though intimated about the date by registered post as also by certificate of positing. He, therefore, requested the Court to permit his withdrawal from appearance which was granted by the Court. Since the plaintiff had adduced evidence and the defendants had remained absent, according to the Court, the evidence of the plaintiff had gone unchallenged. In the plaint also, it was specifically stated by the plaintiff that the defendant was in arrears of rent for more than six months and that had remained uncontroverted and unchallenged. In the circumstances, the trial Court held that the plaintiffs were entitled to decree, as prayed for. The suit was, therefore, decreed and the defendants were ordered to quit and vacate the premises and handover the possession of the suit premises to the plaintiffs on or before 31st July, 1980. On the basis of the decree, execution proceedings were taken out by the plaintiffs, but there were obstructions by the third party, i.e. respondents herein. An application was, therefore, filed by the plaintiffs decree holders for removal of obstructions. The executing Court, by an order dated 13th July, 1986, held that the decree holders were entitled to execute the decree and they were allowed to recover the possession of the property. The obstructionists were ordered to pay an amount of Rs.5,000/- towards costs.