N R MERCHANT Vs. PURBAL NAGSHI

JUDGEMENT

(1.) THE above petition, under Article 227 of the Constitution of India, is directed against an order, passed by the Presidency Small Causes Court, Bombay, on July 12, 1976, setting aside the ex parte order passed on June 3, 1976, on certain conditions. THE relevant facts may be briefly stated as follows :--- THE petitioners filed an ejectment application being E. A. No. 528/E of 1970, against respondents Nos. 1 to 3 and obtained the warrant of possession against them on July 31, 1975. When the warrant of possession was taken for execution the respondents , obstructionists 1 and 2 obstructed. THE petitioners took out obstructionists Notice No. 315 of 1975. This notice was opposed by obstructionist No. 1 by filing an affidavit stating that one Jethalal Varma was in exclusive possession of the premises; and he was in possession as the Manager of Jethalal Varma, on whose behalf he had filed that affidavit. Various other contentions were also raised in the said affidavit. But the main contention was that as Jethalal Verma was not a party to the proceedings he was not bound by the warrant of possession, passed against respondents Nos. 1 to 3. On June 3, 1976, when the obstructionists notice came up for hearing before the learned Judge, neither the obstructionists nor their Advocate, Mr., Khilanani, were present and the learned Judge passed an ex parte order removing the obstruction. THE bailiff went and dispossessed the obstructionists. THEreafter the obstructionist No. 1 applied for setting aside the ex parte order, on the ground that he was suffering from pneumonitis, in respect of which he had produce a medical certificate; and his Advocate was out of Bombay on account of summer vacation, and the Advocates office was also locked. In support of the application, Mr. Khilanani also filed an affidavit stating that due to summer vacation, he had left on May 11, 1976, and returned on June 5, 1976. THE learned Judge by his judgment and order dated July 12, 1976, therefore, passed the aforesaid order, setting aside the ex parte order, if obstructionist No. 1 deposited Rs. 1,920/- within two days in Court, and directed that the status quo ante should be restored in favour of obstructionist No. 1 till the disposal of the Notice No. 315 of 1975, which was posted for hearing on 4-10-1976. THE said order is challenged in the above Special Civil Application. On behalf of the respondents, it is submitted that having regard to the principles laid down by the Supreme Court in (Bhabutmal v. Laxmibai) A.I.R. 1975 S.C. 1297 the order passed by the learned Judge as a discretionary order in the exercise of the inherent jurisdiction under section 151 of the Civil Procedure Code, which applies to the proceedings under section 48 of the Presidency Small Causes Court Act, 1882, and such a discretionary order should not be interfered with by this Court, in exercise of its extra-ordinary powers under Article 227 of the Constitution of India. On behalf of the petitioners, the learned Advocate General submitted that obstructionist No. 1 had to locus standi as he was merely claiming to be the Manager of someone also; and there was no justification for the learned Judge to set aside the ex parte order. THE learned Advocate General submitted that the certificate relied upon by the obstructionist, in support of his alleged illness, was not stating in terms that the obstructionist was not in a position to move out or attend the Court; and hence there was no sufficient reason for the obstructionist to remain absent on the date on which the ex parte order was passed. He also contended that merely because Mr. Khilanani was not present on that date on account of his holiday absence it was no ground for setting aside the ex parte order. THE learned Judge in his discretion has accepted the medical certificate and believed the Advocate. THE finding of the learned Judge cannot be interfered with by this Court, in exercise of its extra-ordinary powers under Article 227 of the Constitution of India, as the finding cannot be said to be a finding contrary to the law or unfair in all the facts and circumstances of the case. Moreover, Mr. Morje, the learned Counsel appearing for the respondent, is also right in his contention that the order passed by the learned Judge is merely an interlocutory order, as the obstructionist notice is still pending for hearing before the Small Causes Court. I do not find any reason to exercise the extra-ordinary powers of this Court under Article 227 of the Constitution at this stage of this matter, when the learned Judge has not yet finally disposed the obstructionists notice and has merely set aside the ex parte order; and the eviction made under that order ex debito Justicia. THE obstructionists have not been heard mainly because their Advocate was not present and the obstructionist No. 1 was disabled by pneumonitis. Restitution is rightly granted in accordance with well settled practice. I do not think that in such a case the jurisdiction of this Court under Article 227 of the Constitution can be invoked. Next the learned Advocate General requested that in any event Justice does not require that the petitioners, who had filed the eviction application as far back as 1970 and had obtained an order of eviction on July 31, 1975, and were put in possession on June 4, 1976, should be dispossessed at this stage. On behalf of the petitioners, the learned Advocate General stated that his clients undertook in Small Causes Court not to part with the possession of the premises during the pendency of the obstructionists notice. He suggested that the obstructionists notice itself may be heard next week and gave an undertaking on behalf of the petitioners that they would not part with the possession of the promises. To repel these contentions, Mr. Morje submitted that the obstructionists have in the premises in dispute valuable articles belonging to their customers; and it is because they have given an undertaking not to part with the premises that the petitioners have still kept the premises with them. He contended that restitution must follow the setting aside of the order and his clients also undertook not to part with possession of premises. As stated above, these are all matters of discretion of the learned Judge in the Court below. I do not find any reason to interfere with the discretion properly and fairly exercised by the learned Judge, particularly when I find from the panchnama a copy of which was shown to me, that a number of articles belonging to the obstructionists are lying in the godown. THE ends of justice, however, will be met if the hearing of the obstructionists notice is expedited. Accordingly, I dismiss the Special Civil Application and discharge the rule with costs, but direct the learned Judge in the Small Causes Court to hear the obstructionist notice as early as possible within one week from the date of the receipt of the writ of this Court in the trial Court. As far as possible the matter should be heard and disposed of in accordance with the law, as agreed before me, by the parties and Counsel, on September 10, 1976. Stay is vacated. In view of the order in this Special Civil Application, there will be no order in the Civil Application No. 2291 of 1976.