NOORALI BABUL THANEWALA Vs. K M M SHETTY

JUDGEMENT

(1.) 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, the suit premises be handed over to the petitioner. The petitioner 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 Ramakrishna Hindu Hotel or Ramakrishna Hotel is carried on, filed Civil Suit No. 213 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, Haribhau Shivale and Girl Anna Shetty for eviction from the abovesaid 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 District 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 further to the High Court they were impleaded as respondents in the appeal and the writ petition filed by the first respondent 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 continue 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 indicated within the time aforesaid the decree of execution shall become executable forthwith."

(2.) In pursuance of this order the first respondent K. M. M. Shetty filed an undertaking dated 5-10-1987. The first respondent through his advocate had produced the muster roll showing the names of persons employed by him for running the hotel business in the suit premises as well as a list of persons staying in the said hotel. This list showed 17 persons as being the employees and persons staying in the hotel, and as directed by this Court the 17 persons also filed an undertaking.

(3.) 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. 213 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, Rules 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 III rd Joint Civil Judge, Thane, granted a temporary injunction against the petitioner herein restraining him upto the disposal of Civil Suit No. 306 of 1989 from executing the decree for second 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.