LAXMICHAND BHAGAJI LTD Vs. MADHUBHAI MANISHANKAR DESAI

JUDGEMENT

(1.) THE appellant original plaintiff has filed this Appeal under Order 43 Rule 1 of Civil Procedure Code, challenging the judgment and order dated 7.4.2005 passed by the learned Civil Judge (S.D.) Bardoli below an application Ex.5 in Special Civil Suit No.66 of 2003 whereby the application Ex.5 was rejected. The Appeal From Order has come up for hearing on 23.8.2005. This Court has observed that since the appellant proposed to file Civil Application for interim relief, the hearing of Appeal was adjourned to 26.8.2005. In the meantime, the appellant has filed Civil Application No.7646 of 2005. This Court has admitted the Appeal On 26.8.2005 and notice was issued in Civil Application making it returnable on 12.9.2005. However, the Civil Application No.7647 of 2005 was disposed of by this Court on 18.1.2006 and it was observed therein that allowing this application would tantamount to allowing the Appeal, and therefore, it cannot be entertained. The appellant has filed Civil Application No.3396 of 2007 for fixing the date of hearing. The said application was disposed of by the Court vide its order dated 5.3.2007 and Appeal From Order was fixed for hearing on 4.4.2007.

(2.) THE hearing of Appeal was thereafter adjourned from time to time and ultimately it was effectively heard for the first time on 17.1.2008 and it was observed therein that the Court is of the prima facie view that at this stage, the order regarding handing over possession cannot straightway be passed. However, the present respondent has been enjoying the property since 1991 and he has not paid a single pie towards rent or occupation charges. The present appellant original plaintiff has in the injunction application only asked for direction to the respondent original defendant to deposit a sum of Rs.2,500/ - with the Court from the date of the Suit. The Court was, therefore, of the prima facie view that the said prayer could not be said to be unreasonable or improper. Before any direction was issued while finally disposing of the Appeal From Order, Mr. N.V.Gandhi, learned advocate appearing for the respondent prayed for some time to take necessary instructions from the respondent original plaintiff and hence the matter was adjourned to 24.1.2008 for final disposal. On 24.1.2008, Mr.Gandhi was not present. However, Mr.Amit Chaudhary, learned advocate appearing for Mr.Sunit Shah, learned advocate for the appellant has submitted that Mr.Sunit Shah is appearing in this matter and since he was out of station time was sought for. The Court, therefore, observed that as a matter of fact the matter was adjourned to seek instruction from the client, however no such instruction has come forward. The matter was, thereafter, adjourned to 25.1.2008. On 25.1.2008, Mr.Sunit Shah, learned advocate appearing for Mr. N.V.Gandhi submitted that he wanted to argue the Appeal at length and hence he sought permission to make his submission. Before granting such permission, the Court has asked the respondent to deposit a sum of Rs.25,000/ - before this Court towards an arrears of rent. Mr.Shah, under the instruction of the respondent, agreed to deposit the said amount on or before 30.1.2008 and matter was adjourned to 30.1.2008 on this condition. The matter was, thereafter, heard at length.

(3.) IT is the case of the appellant original plaintiff that Laxmichand Bhagaji Ltd., Company incorporated under the Companies Act, 1956, was wound up and committee was constituted under the order of Bombay High Court in Company Petition No.76 of 1991 for compromise and arrangement and the said committee came to be known as Laxmichand Bhagaji Depositors Management Committee. The said Committee is authorised to sell and recover sale proceeds by selling the property of the Company in liquidation anywhere in India pursuant to the Scheme of Compromise and Arrangement sanctioned by Bombay High Court in Company Petition No.76 of 1991. The property bearing City Survey No.4232 and registered in Nagarpalika at 2/1128 is the property of the Company in liquidation. The respondent original defendant was the employee of the Company in liquidation and the said property was given to him for residential use during the period of service. Since the Company was wound up, the contract of employment with the respondent had come to an end and the respondent has been unauthorisedly occupying the said premises since 28.11.1991. A Notice was also issued to the respondent to vacate the premises and the respondent has wrongfully retained the possession of the premises even after the receipt of the notice. It is, therefore, contended that the respondent is not the tenant of the Company in liquidation and no document like rent receipt etc., is produced by the respondent.