DEEPAK EKNATH DHAVAN Vs. ANWAR FARAMOSH KHAN

JUDGEMENT

(1.) THIS Appeal under Clause 15 of the Letters Patent filed by the Appellant (original Defendant No. 2) seeks to challenge the order dated 22nd January 2004 passed by a learned Single Judge on Notice of Motion No. 68 of 2002 filed by the original Plaintiff who is Respondent No. 1 herein. Suit No. 29 of 2002 is filed by Respondent No. 1 as a dispossessed person under Section 6 of the Specific Relief Act, 1963 to recover possession of the immovable property concerned. In that Suit, he had taken out the above Notice of Motion wherein prayer (a) was that pending disposal of the Suit, the High Court Receiver be appointed the Receiver of the property being front side Ground Floor Bungalow admeasuring about 1500 sq. feet situated at Gupta Bhavan Nos. 166, 167, N. A. No. 18-B, Gundavali Village, Andheri (East), Mumbai (the said property for short) and for a further direction to the Receiver to take possession of the said property and to put the Plaintiff in possession thereof. This Motion has been made absolute in terms of prayer clause (a) by the impugned order. Respondent No. 3 to this appeal is the landlord of the said property, who is Defendant No. 1 in the Suit. It was the case of Respondent No. 1 (original Plaintiff) that he was the tenant of the suit premises and he has been physically removed from the said property by the Appellant on 9th December 2001, by taking law in his hand. The Suit has been filed on 27th December 2001 and the Motion on 9th January 2002.

(2.) MR. Bobde appears for the Appellant, Mr. DVitre for Respondent No. 1 and Mr. Samdani appears for Respondent No. 2. Mr. DVitre and Mr. Samdani have raised a preliminary objection to the maintainability of this Appeal. They relied upon Section 6 (3) of the Specific Relief Act, which provides that no appeal shall lie from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed. They have drawn our attention to a judgment of the Apex Court in the case of The Union of India vs. The Mohindra Supply Co. reported in AIR 1962 S. C. 256. That was a matter concerning an appeal under Section 39 (2) of the Arbitration Act, 1940 wherein the question was as to whether in view of a specific bar to an appeal under that Section, a second appeal under Clause 10 of the Letters Patent of the Punjab High Court would be available. The Supreme Court took the view that Section 39 (2) had restricted the right of appeal and the same would not be available. Thereafter they drew our attention to another judgment of the Apex Court in the case of State of West Bengal Vs. M/s. Gourangalal Chatterjee reported in (1993) 3 SCC page 1. That was also a matter under Section 39 (2) of the Arbitration Act, 1940 and the Apex Court held that the appeal would not be available to a Division Bench of the High Court of Calcutta under Letters Patent. Both the counsel further drew our attention to a judgment of a Division Bench of this Court in the case of Municipal Corporation of Greater Bombay Vs. Patel Engineering Co. Ltd. , reported in 1994 Maharashtra Law Journal Page 90. That was a matter under the Arbitration Act, 1940 and the Division Bench has followed the judgment of the Apex Court in AIR 1962 S. C. 256 (supra ).

(3.) MR. Bobde, learned Counsel appearing for the Appellant, on the other hand, drew our attention to a recent judgment of the Apex Court in the case of Vinita M. Khanolkar vs. Pragna M. Pai and Ors. , reported in (1998) 1 SCC page 500. It was a matter which went to the Apex Court from this High Court and was concerning a right of appeal under Section 6 of the Specific Relief Act wherein the Apex Court has in terms held that the powers flowing from the charter would not get excluded unless the statutory enactment concerned expressly excluded the appeals under Letters Patent. This judgment of two Judges, however, does not refer to the judgments of the Apex Court reported in AIR 1962 S. C. 256 (supra) and (1993) 3 S. C. C. page 1 (supra ). He drew out attention to another judgment in the case of Sharda Devi vs. State of Bihar reported in (2002) 3 S. C. C. page 705 which was in the context of the Land Acquisition Act and wherein also a Bench of three Judges of the Apex Court has held that the power of appeal to a Larger Bench under the Letters Patent would not get excluded in absence of any exclusionary provision in the Statute itself.