ABDULHUSSEIN NOOROODDIN KAGAJWALLA Vs. MAHARASHTRA INDUSTRIES

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 29-8-1990 passed by the City Civil Court, Bombay in Chamber Summons No. 1207 of 1989 in S. C. Suit No. 6948 of 1973, whereby the Chamber Summons was made absolute.

(2.) THE execution proceedings taken out by the decree holder i. e. the respondents herein against the appellants who have obstructed the execution of the ex-parte decree. A Suit being S. C. Suit No. 6948 of 1973 was filed in the City Civil Court, Bombay against M/s. Gipar Packaging Industries for recovery of the suit premises situated at 1st floor, Kalina Casttle, 175, C. ST. Road, Kalina, Bombay - 29 and for recovery of arrears of compensation and mesne profit etc. The said suit came to be decided ex-parte on 7-1-1988. Under the decree, the defendants-Judgment debtor M/s. Gipar Packaging Industries were directed to hand over the possession of the suit premises to the plaintiffs by 29th February, 1988. Further, the defendants judgment debtor were directed to pay mesne profit to the plaintiffs at the rate of Rs. 1,050/- p. m. It reveals that in pursuance to the said decree, the decree holder-plaintiff moved for issuance of the writ of possession and the Registrar of the City Civil Court issued a writ of possession on 22nd August, 1989 and a warrant of attachment of the moveable property in possession of the judgment-debtor respondent No. 2 herein. The Bailiff of the Sheriff had gone to the suit premises on 7-9-1989 and on 14-9-1989 respectively for execution of the said writ of possession and on both the occasions, the premises was found to be locked. Again, on 19-9-1989, the Bailiff of the Sheriff had gone to the suit premises for execution and at the same time, the premises was found open and there was a board in the name of M/s. Gipar Industries- the appellant, instead of Gipar Packaging Industries-Judgment debtor. It reveals that again, on 26-9-89, the decree-holder respondent No. 1 alongwith the Bailiff went to the suit premises for execution of the writ of possession. At that time, he was obstructed by the present appellants. Therefore, the decree-holder respondent No. 1 took out a Chamber Summons for removing the obstruction caused by the appellants. The appellants filed their reply to the Chamber Summons contending that the appellants claim the occupation of the suit premises within their own rights as a protected tenant under the Bombay Rent Act, 1947. According to the appellants, there was a Leave and Licence Agreement executed between the original defendant-respondent No. 2 and the appellants in respect of the suit premises on 17th November, 1972. Further, it is contended that the said licence was for a period of 10 years i. e. upto 31st October, 1982. The said Leave and Licence Agreement was reduced into writing. The appellants claim that they are in possession of the suit premises since 1st November, 1972 and commenced their business therein in the name and style of Gipar Industries. The Partnership Deed was also executed on 15th November, 1972. It reveals that the business of warehousing was carried out in the beginning and thereafter, it was changed from warehousing to that of manufacturing playing cards and other paper items in 1978 in the suit premises. The factory permit was issued by the Municipal Corporation in 1979. Thereafter, the appellant No. 2 firm made purchases of diverse machineries from 1979 onwards for the purposes of establishing the project and the machineries worth about Rs. 2 lakhs were installed and the same were lying in the factory premises i. e. the suit premises. The appellants further alleged that the electricity connection and the machineries are standing in the name of appellant No. 2 firm. The appellant No. 2 firm was granted further permanent registration certificate on 17th March, 1977 in the name of appellant No. 2 firm from the Government of Maharashtra, Directorate of Industries. It has been submitted that the appellants thus, in occupation of the suit premises since 1972 and claimed to be deemed tenants of the suit premises by virtue of the amended provisions contained in the Bombay Rent Act. It is stated on behalf of the appellants that the appellants are entitled for legal protection against the eviction ex-parte decree as it is not binding to the appellants.

(3.) AFTER framing the issues and recording the evidence, the learned Judge was pleased to reject the plea of the appellants and the Chamber Summons was made absolute by his order dated 29-8-90 directing the appellants to vacate the suit premises. Hence, this appeal.