RAMJISINGH BHULIANSINGH Vs. TARUN K SHAH

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Small Causes Court at Bombay dated October 31, 1988 in Misc. Notice No 366 of 1985 in RAE Suit No. 3475 of 1981. By the said Misc. Notice, the petitioner who was in lawful possession of flats Nos. 202 and 203 situated at Agra Road at Kurla, Bombay 70 since 1970 as a licensee, prayed that ex parte decree passed on 5-8-1983 in RAE Suit No. 3475 of 1981 against the tenant be set aside and the execution of the said decree in respect of the suit premises be declared as null and void. Other consequential reliefs were also prayed in the said application.

(2.) IT is pertinent to note the backdrop in which the said application came to be filed by the petitioner. According to the petitioner, he was in lawful possession of the suit premises since 1970 as a licensee of one Mr. B. Nath the predecessor-in-title of the respondents 3 and 4 herein, who was the tenant of the respondent No. 1 herein. The said licence was subsisting as on 1-2-1973 when section 15-A of the Bombay Rent Act came into force. By virtue of said status, the petitioner claims to have become protected licensee. In the circumstances, the petitioner started paying rent directly to the landlord-respondent No. 1 herein which has been accepted by him. The petitioner apprehended that respondent Nos. 1 and 2, who are the landlords in respect of the suit premiss were likely to forcibly dispossess the petitioner and for which reason the petitioner instituted suit in the Court of Small Causes Court at Bombay being RAD Suit No. 2454 of 1981 against the respondent No. 1 for a declaration that the petitioner be declared as a tenant in respect of the suit premises. This suit was filed on 3-6-1981 and, on the same day, the petitioner filed an application for injunction for restraining the respondent No. 1 landlord from disturbing the petitioners possession of the suit premises without due process of law. The Small Causes Court on the same day was pleased to grant ex parte ad interim order of injunction restraining the landlord-respondent No. 1 from disturbing the petitioners possession in respect of the suit premises without due process of law. This order was duly served upon the respondent landlord on 4-6-1981. This fact is not in dispute at all. The respondent Nos. 1 and 2 landlords, however, on 21-7-1981, filed RAE Suit No. 3475 of 1981 for possession of the suit premises in the same Court being the Small Causes Court at Bombay only against respondent Nos. 3 and 4, who were successor-in-interest of the original tenant. According to the petitioner, this suit filed by the respondents-landlords, without joining the petitioner as party defendants or disclosing the fact that the petitioner has filed a prior suit against them claiming to be in possession of the suit premises as a protected licencee in which injunction was already granted against the landlords, was done with purpose namely with a view to somehow evict the petitioner by unfair means. The fact remains that the respondents landlords had by this time full knowledge that the petitioner was asserting to be in possession of the suit premises as a protected licencee; and, even then, in this suit they made no disclosure about the fact of petitioners possession and the stand taken by the petitioner in the declaratory suit already filed by him in which injunction was also granted and duly served upon them. The petitioners case is that the said suit was filed only against respondent Nos. 3 and 4 in collusion with the said respondents. The fact of collusion can be clearly inferred from the manner in which the suit filed by the respondent Nos. 1 and 2 for possession proceeded before the Rent Court. In a short span of two years from the date of institution of this suit, an ex parte decree came to be passed on 5-8-1983 ordering eviction of the respondent Nos. 3 and 4 from the suit premises. It is relevant to note that on the other hand on 12-4-1984, in the declaratory suit filed by the petitioner before the same Court, the Court confirmed the ex parte injunction which was granted on 3-6-1981. In that proceeding the stand taken by the respondents landlords is that the petitioner had no concern with the suit premises. That stand has been prima facie, found to be without any substance, for reliance was placed by the petitioner on several documentary evidence in the shape of counter foils of cheque paid towards rent and statement of bank, converting letters and acknowledgment, letter of plaintiff dated 12-1-1980 addressed to Assistant Assessor and Collector of Bombay Municipal Corporation, receipts from Assessment Department of B. M. C. towards assessment paid, permission letter from, Chief Fire Brigade, B. M. C. , electricity bill payment receipts, meter testing reports, receipts from Water Department of B. M. C. and postal evidence. What is relevant to note is that the Court confirmed the ex parte injunction which was granted by it earlier. Interestingly, although the respondents-landlords were fully aware that in fact the petitioner was in possession of the suit premises, they proceeded to file application for execution of the said ex parte decree passed only against respondent Nos. 3 and 4 in respect of the suit premises. What is relevant to note at this stage is that even in this application no disclosure has been made by the landlords about the fact that the petitioner was claiming to be in possession and that the Court of competent jurisdiction had granted injunction against the landlords from evicting the petitioner without following due process of law. This application was filed on 18-4-1985 for execution of ex parte decree. The same was entertained by the Executing Court on 19-4-1985 and an order of warrant of possession in respect of the suit premises was directed. On the basis of that warrant of possession, the landlords attempted to execute the ex parte decree on 29-4-1985. According to the petitioner, the execution of this decree was resisted on his behalf but, the Bailiff, for the reasons best known to him, made endorsement in his report that the decree has been duly executed. The Bailiff report mentions that one watchman of respondent No. 4 was present at the premises. In fact, the respondent No. 4 had no concern as the petitioner was in possession of the suit premises. Even accepting this report to be accurate, it is clear that the decree against respondents 3 and 4 was purported to be executed against the petitioner behind his back and in any case in contravention of the injunction order which was running against the landlords not to dispossess the petitioner from the suit premises without due process of law, for there was no decree of possession obtained against the petitioner in respect of the suit premises from any competent Court. According to the petitioner, immediately after the attempted execution of the ex parte decree, the petitioner rushed to the Small Causes Court and filed present application being Misc. Notice No. 366 of 1985 in RAE Suit No. 3475 of 1981. In this application the petitioner has set out all the relevant events and clearly asserted that the petitioner is still in possession of the suit property and the purported execution of the ex parte decree as mentioned in the bailiffs report was false. The petitioner has made serious grievance about the manner in which the bailiff has made the report about the execution of the decree. It is asserted that the respondent Nos. 1 and 2 landlords in collusion with the respondent Nos. 3 and 4 not only obtained ex parte decree in respect of the suit premises but also got the same executed in the manner referred to above which was nothing short of fraud played on the Court especially when the landlords were fully aware that the petitioner was in possession of the suit premises and also had filed a declaratory suit for appropriate reliefs in which injunction was granted in his favour. This application was resisted by the respondent Nos. 1 and 2 on merits as well as on its maintainability on the ground that the petitioner had no locus to challenge the ex parte decree obtained against respondent Nos. 3 and 4. Moreover, it was contended that since respondent Nos. 3 and 4 have already filed a substantive application for setting aside the self same ex parte decree, in such a situation the petitioner, who was not a party to the suit, could not maintain the application praying for setting aside of the said ex parte decree. Per Contra, the petitioner contends that even the application for setting aside ex parte decree filed by the respondent Nos. 3 and 4 was as a counter blast to nonsuit the petitioner on this technical ground.

(3.) THE Executing Court considered the matter in the light of the objections raised by the respondent Nos. 1 and 2. The Executing Court in para 14 of his judgment has observed as under :