PREMIER CONSTRUCTION CO. LTD Vs. PASHABHAI PATEL

JUDGEMENT

(1.) BOTH these writ petitions can be disposed of together by a common judgment as the issues involved are common and arise out of derivative proceedings during the execution of the decree passed in favour of the Petitioners in R. A. E. and R, Suit No. 928/5431 of 1977.

(2.) THE Petitioners are the owners and landlords of building known as 'Construction House' at Walchand Hirachand Marg, Ballard Estate, Mumbai 400 038. The Petitioners filed suit for eviction against the respondent No. 1 - tenant in respect of the demised premises, being R. A. E. and R. Suit No. 928/5431 of 1977. The said suit was decreed by the Small Causes Court on 17th February, 1992 directing the respondent No. 1 to deliver vacant and peaceful possession of the demised premises to the Petitioners. The respondent. No. 1, however, carried the matter in appeal, which appeal was rejected by the Appellate Bench on 30th April, 1993. Against this order the respondent No. 1 filed Writ Petition under Article 227 of the Constitution of India, being Writ Petition No. 3010 of 1993. Even that Writ Petition came to be rejected on 15th September, 1993. Thereafter, the respondent No. 1 took the matter before the Apex Court by way of Special Leave Petition which was eventually dismissed on 15th October, 1993. After the decree passed against the respondent No. 1 became final, the Petitioners took out execution proceedings for possession of the demised premises on October 19, 1993. The Executing Court was pleased to issue order for warrant of possession on November 8, 1993. On an application on 25.11.1993 and 14.12.1993 the Petitioners got the date of execution of warrant extended from the Registrar. Eventually, when the warrant of possession was sought to be executed on December 1 7, 1993 with the help of Bailiff, the same was obstructed by 12 persons named in the Bailiffs report of the same date, which included respondent Nos. 8 and 9 herein as obstructionist Nos. 7 and 8 respectively. All those persons claimed to be in lawful possession of the demised premises for more than last, ten years, whereas the partners of the respondent No. 1 were not found in the demised premises during the execution. The Bailiff report dated 17.12.1993 mentions the above claim made by the said 12 persons who had obstructed the execution. Going by the claim of those persons as recorded in the Bailiff's report, they were inducted by the respondent. No. 1 in the demised premises only in or around ten years prior to 1993 i.e. around 1982, which is obviously during the pendency of the suit for recovery of possession instituted against the respondent No. 1 in the year 1977. This assumes relevance as even the respondent No. 1 - Defendant at no point of time during the action against him right from the Trial Court till the Apex Court ever indicated that some one else was in occupation of the suit premises. If this is correct then these Obstructionists have no protection under the provisions of the Rent Act and could not have justly resisted the execution. All those persons who obstructed the execution on 17.2.1993 have been impleaded as respondent Nos. 2 to 14 in these writ petitions. In view of the obstruction caused by the said persons, Petitioners took out Obstructionist Notice before the Executing Court on January 15, 1994. In the said notice the Petitioners clearly asserted that the Obstructionists were claiming through the original defendants and obstruction has been caused mala fide and without any just cause and obviously at the behest of the original defendant respondent No. 1 herein. According to the Petitioners, the Obstructionists were the employees and the sister concerns of the original defendants; And that they were not protected under the provisions of the Bombay Rent Act for which reason the obstruction caused by them will have to be removed forthwith. The record indicates that this Obstruction Notice was moved before the Executing Court on January 15, 1994 and that Court was pleased to issue notice returnable on February 8, 1994. However, the Petitioners did not pursue the said proceedings to its logical end, but instead in April, 1994 they applied to the Registrar to renew the warrant of possession which was granted earlier for further period of 10 days. In this application it was stated on behalf of the Petitioners that the earlier warrant of possession could not be executed since the defendant was not available in the suit premises but now that the defendant was available, request for issuance of warrant of possession was renewed by the said application. On this application the concerned Registrar appears to have put an endorsement that there is no stay till today and consequently renewed the warrant as prayed for on April 19, 1994, Pursuant to the said order, the concerned Bailiff Shri S.Y. Thombare who had attempted to execute the earlier warrant on December 17, 1993, applied to the Additional Registrar to provide him with the assistance of one Senior Bailiff having regard to the volume of work involved. This request of the Bailiff was acceded to by the Registrar by providing assistance of another Bailiff Shri S.R.Nachankar. The Bailiff in charge thereafter requested the Senior Inspector of Police, Phaltan Road Police Station, by letter dated April 20, 1994, to provide five Police Constables and one Senior Inspector to assist him during the execution of warrant of possession on April 29, 1994 at 10.00 a.m. Pursuant to the said request, necessary police assistance was provided to the Bailiff, who in turn is stated to have reached at the demised premises around 10.30 a.m. on April 29, 1994 and commenced execution of warrant of possession. The Bailiffs report prepared on the same date clearly indicates that the partner of the respondent No. 1 firm Deelip Patel, Accountant Shamsunder Gawde, two employees Shri Santosh Sathilkar and Jagdish Gohil and Ghanshyam Patel were present in the suit premises and that they were told about the purpose of the visit. That report also records that those persons assisted the Bailiff in removing their goods and belongings from the demised premises so as to hand over vacant possession of the suit premises. In other words, the respondent No. 1 original defendant through its abovenamed partner and employees handed over vacant and peaceful possession of the demised premises to the Bailiff, who in turn handed over the same to the petitioners on the same day. According to the petitioners, after they obtained vacant and peaceful possession of the demised premises immediately on the same day inducted M/s. Hindustan Construction Ltd. as tenant in the suit premises. The said Hindustan Construction Ltd. was already tenant on the 3rd and 5th floors of the said building. It is conceded on behalf of the petitioners that the said M/s. Hindustan Construction Co. Ltd. is one of the sister company of the petitioners, but undoubtedly an independent legal entity and a separate juristic person. The respondent Nos. 8 and 9 herein - Obstructionist Nos. 7 and 8 respectively, thereafter, on 2nd May, 1994, filed applications before the Executing Court for setting aside the execution of the warrant and for restoration of possession of the suit premises. It is relevant to note that the said M/s. Hindustan Construction Co. Ltd. which was put in possession of the suit premises was not made party to these proceedings. Be that as it may, in both these applications the said respondent Nos. 8 and 9 have asserted that they were in use, occupation and possession of separate self contained independent demarcated portion of the premises on the ground floor of the building. They have made grievance that although their obstruction has been registered, the petitioners without perusing the Obstructionist Notice to its logical end have fraudulently got the warrant of possession renewed and surreptitiously got the same executed behind their back without any notice to them. According to respondent Nos. 8 and 9 herein, the petitioners have in effect taken forcible possession of the premises which were in their possession in their own rights and ignoring their claim set up by them by putting up obstruction. Be it noted that although twelve persons had obstructed the execution but only respondent Nos. 8 and 9 have challenged the action of taking over of possession by the petitioners. Even before this Court only respondent Nos. 8 and 9 have appeared and contested this proceeding. According to the contesting respondents, the Bailiff and persons accompanying him, including 15 employees of the petitioners, removed their articles and belongings such as tables, chairs, A.C. type writer and office record and office equipments and dumped the same on the footpath abutting the premises and took forcible possession in this manner. The respondents have further asserted that though the Bailiff report records that Deelip Patel, one of the partner of the respondent No. 1 was present at the relevant time, however, in fact, according to the respondents, the said Deelip Patel had gone to attend some Court proceedings between 10.30 a.m. and 12.00 noon on that day and was not present on the premises at all. Accordingly, the case as made out in the applications against the petitioners is one of criminal conspiracy hatched by them and a fraud has been perpetrated on the Court in obtaining possession of the demised premises. In the circumstances, the contesting respondents prayed for restoration of premises viz. the ground floor of the suit building and for consequential reliefs.

(3.) IN response to the reply filed by the petitioners, the said respondents filed rejoinder affidavit in which they took specific stand that they have filed the said application under Section 151 of the C.P.C. and not under the provisions of Order 21, Rule 99 of the C.P.C. According to them, the provisions of Order 21, Rule 99 were not available to the said respondents; and the appropriate remedy was only under Section 151 of the C.P.C. having regard to the manner in which the petitioners had dispossessed them by playing fraud upon the Court. In the circumstances, it is contended that it is only by virtue of the inherent powers under Section 151 of the Code that the Court can remedy the mischief. In other words, the stand taken on behalf of the said respondents was very categoric that the applications filed by them were under Section 151 of the C.P.C. on the premise that the petitioners had played fraud and obtained possession of the demised premises inappropriately,