UNION OF INDIA Vs. LALJEE BROTHERS

JUDGEMENT

(1.) This writ petition has been filed by the Union of India against the order passed by the Small Causes Court, Bombay in an interim notice No. 3324 of 1983 in R.A.E. Declaratory Suit No. 1270/4483 of 1973, on 1st June, 1983, granting plaintiffs application in terms of prayer Clauses (a), (b) and (c), or para 30, thereof namely allowing the plaintiffs to implead the Union of India and Shri Mistry as party defendants to the suit, granting amendment of the plaint and ad interim injunction restraining the Union of India and K.K. Mistry from dispossessing the plaintiffs from the suit premises.

(2.) It appears from the record that the plaintiffs filed a suit initially against one Shri Saxena, Executor of the Will to late Shrimati Meenakumari. In the said suit, it was the case of the plaintiffs, M/s. Laljee Brothers a registered firm, that they were placed in possession of the suit premises on 16th October, 1972, as licensee. They were in possession of the premises lawfully on the 1st day of February, 1973, and had, therefore, become protected tenant-under section 15-A, of the Bombay Rent Act. The original defendant Shri Saxena, died on 28th of April, 1979, and thereafter no steps were taken by the plaintiffs to bring his legal representative on record. It appears from the record that even prior to the alleged licence created in favour of the plaintiffs on 16th of October, 1972, the suit property was attached by the Income Tax Department for the recovery of tax due. A notice regarding attachment of the property was issued on 4th of August, 1972, whereby at further transactions were prohibited. On 6th of August 1972, the Union of India issued an order under Rule 22 of 2nd Schedule to the Income Tax Act attaching the suit flat and other assets of the deceased Meenakumari. As already stated the licence in favour of the plaintiffs was created on 16th of October, 1972, and it is the case of the plaintiffs that it was created with the permission and consent of the Union of India. On 17th of August, 1973, present suit came to be filed against Shri Saxena who was the Executor mentioned in the will of the deceased Meenakumari. The suit was filed for a declaration that the plaintiffs were the tenants of the suit premises. On 2nd of July, 1973, a standard rent application was filed by the plaintiffs against Shri Saxena in which the Union of India had intervened. It is the case of the Union of India that on 24th of July, 1974, a Probate was granted by the High Court in favour of Shri Saxena who was the sole defendant to the suit and who died in the year 1979. The department took steps for recovery of amount of tax by taking steps to sell the property by auction. On 20th of March, 1983, a writ petition bearing Writ Petition No. 713 of 1983, was filed by the plaintiffs before this Court challenging the first proclamation of sale which was subsequently withdrawn. By an application dated 22nd of March, 1983, the plaintiffs raised objections to the auction sale. These objections were rejected by the Tax Recover Officer vide his order dated 25th of March 1983. On 26th day of March, 1983, the second sale proclamation in respect of the auction sale of the suit premises was issued. The plaintiffs on 20th of April, 1983, again filed a writ petition before this Court bearing Writ Petition No. 1043 of 1983, challenging the order of Tax Recovery Officer dated 25th of March, 1983, and also proclamation of sale. The said writ petition was rejected by this Court on 27th of April, 1983. Then on 29th of April, 1983, the auction sale was held in which the plaintiffs as well as the second respondent participated. The 2nd respondent Shri Mistry was the highest bidder. On 5th of May, 1983, the plaintiffs filed an application before the Small Cause Court at Bombay for joinder of the parties i.e. Union of India and Shri Mistry as party-defendants, to the suit pending in the Small Cause Court, Bombay and also prayed for ad interim injunction. By an order dated 1st of June, 1983, namely the impugned order, the Small Cause Court at Bombay allowed the application filed by the plaintiffs for joinder of the parties and also granted ad interim injunction. It is this order which is challenged in this writ petition by the Union of India on various grounds. The present writ petition was filed on 8th of June, 1983. On 9th of June, 1983, Rule was issued in the present writ petition and ad interim stay was granted to the operation of the order passed by the Small Cause Court at Bombay dated 1st of June, 1983. It then appears that on 15th of June, 1983, the auction sale was held and on 29th of April, 1983, was confirmed in favour of Shri Mistry and the sale certificate under Rule 65, of the Rules was issued. On 21st of June, 1983, Shri Mistry filed an application under Rule 39, of the Rules for possession of the suit premises and an order on the said application was passed on 23rd of June, 1983, and on 24th of June, 1983, the plaintiffs were removed from the suit premises in exercise of powers under rule 39, and possession was delivered to auction purchaser Shri Mistry. I am informed that in the meantime, that is, after the filing of this writ petition plaintiffs have filed 2 appeals against the order passed by the Tax Recovery Officer under Rule 44, read with Rule 86(1)(c), of the Rules framed under the Income Tax Act and the said appeals are pending.

(3.) The impugned order dated 1st of June, 1983, was passed by the Small Causes Court at Bombay on an application filed by the plaintiffs for amendment of the plaint as well as for joinder of parties. The Union of India has contested the said application and had raised various contentions. From the order of the Small Cause Court at Bombay---it appears that after hearing the parties the Small Cause Court passed the impugned order over ruling the contentions raised by the Union of India. As already observed it is this order which is challenged in this writ petition by the Union of India.