If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 7315 of 2011
Decided On: 18.10.2011
Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta
Hon'ble Judges/Coram:
G.S. Godbole, J.
Citation: 2012(1) MHLJ730,2012(5) BonCR348,2012(1) AllMR 4
1. This Writ Petition was placed at Serial No.925 i.e. on the supplementary Board of today's Board. Since the Court was busy in hearing matters from the regular Board and earlier matters from the supplementary Board, this Petition could not be taken up till 5 p.m. today. Considering the urgency, the Petition was mentioned at 5 p.m. and the learned Advocates for the Petitioners and Respondent have agreed to advance their arguments /submissions beyond normal working hours of the Court after 5 p.m.. I have accordingly heard the Petition.
2. Rule. By consent, Rule is made returnable forthwith and heard finally with the consent of the parties.
3. The Petitioners are original Plaintiffs in R.A.D. Suit No. 1094 of 2011 filed in the Court of the Small Causes Court, Mumbai for declaration of tenancy in respect of the suit premises. Written statement has been filed by the Respondent Defendant and the written statement has been subsequently amended by allowing the Applications of the Respondent Defendant.
4. It is the case of the Plaintiffs that one Icchashankar H. Dave was inducted as tenant in the suit premises, who died in the year 2002 and that the Plaintiffs are daughter-in-law and grandson respectively of said Icchashankar Dave, whose son Bhaskar had predeceased him in the year, 2001. In the written statement, it is the case of the Respondent that in the year 1980 or thereabout the said Icchashankar H. Dave was given possession of the suit premises as gratis and he was occupying the suit premises as gratuitous licensee.
5. In the Suit, the Petitioners filed an Application below Exh. 9, seeking interim reliefs, which read thus :
[a] Pending the hearing and final disposal of the present suit, the defendant, his servants and agents be restrained by an order and injunction of this Hon'ble Court from dispossessing the plaintiffs without due process of law and/or interfering with the plaintiff's peaceful use, occupation and possession of the suit premises.
[b] Pending the hearing and final disposal of the present suit, the defendant, his servants and agents be directed by a mandatory order of the court to restore the electricity to the suit premises and/or in the alternative to give consent for obtaining separate electric connection in the suit premises.
[c] Pending the hearing and final disposal of the present suit, the defendant, his servants and agents be directed by a mandatory order of the court to restore the water supply to the suit premises from the overhead water tank on the terrace on the 6th floor and/or in the alternative to give consent for obtaining separate water connection in the suit premises.
6. The Application Exh. 9 was opposed by filing Reply by adopting averments in the written statement and the Plaintiffs filed Rejoinder. Various documents, letters, photocopies, entries in the rent diary, electricity bills etc. were produced.
7. It is not in dispute that the Respondent has filed L.E. & C. Suit No. 91/120 of 2011 against the present Petitioners in the court of Small Causes at Mumbai. The Petitioners who are Defendants in that suit have already filed written statement in the suit and Mr. Vora, Advocate for the Respondent, states that in all probabilities the issues have also been framed very recently.
8. The Trial Court recorded a finding of fact to the effect that the Petitioners are in physical possession of the suit premises. This finding of fact is recorded in paragraph 8 of the Judgment of the Trial Court delivered on 22.7.2011. Ultimately, the Trial Court concluded in paragraphs 13 and 14 which read thus :
13] As per said provision the defendant is having every right to obtain independent electric meter for the suit premises, without no objection of the landlord. Hence, so far as electric supply is concerned this not necessary to give the separate directions to the landlord.
14] It is admitted fact that defendant has put his locks to the water tank from which the plaintiffs was used to obtain the water. Therefore, it is necessary to give directions to defendant to restore water supply to the plaintiffs. So also defendant is claiming plaintiffs as it is gratuitous licensee. Therefore,, in the interest of justice it will be proper to protect the possession of plaintiff till decision of the suit. For the reasons stated above, I pass the following order.
ORDER
1] Application Exh. 9 are partly allowed.
2] Prayer in respect of restoration of electricity is rejected.
3] Defendant is hereby directed to restore water supply to suit premises, within 15 days from the date of this order.
4] Defendant is further directed not to dispossess the plaintiffs from the suit premises, or not to disturb the plaintiffs possession over the suit premises through his servants, agents or any persons is appointed on his behalf till final decision of suit. 22.7.2011
Sd/-
(N.L.Kale)
Judge, C.R.No.23.
9. Aggrieved by this order, the Respondent herein filed Misc. Appeal No.115 of 2011 which has been allowed by the Appellate Bench of the Court of Small Causes at Mumbai by impugned Judgment and Order dated 20th August, 2011. While delivering Judgment, the Appellate Court has observed thus in paragraphs 13 and 14 :
13.... But, again the possession in the suit premises by the plaintiff is not denied by the defendant. What is denied by the defendant is character of possession. The defendant has come with the specific case that plaintiff is in possession of the suit premises not as a tenant but as a gratuitous licensee.....
14. Plaintiff has also come with the case that he is in possession of the suit premises since long and that itself shows that the water supply was enjoyed uninterruptedly, and therefore, restoration is warranted. Plaintiff has also come with the case that how a family can reside without being water supply for long period.
10. Mr. Dani, Advocate for the Petitioners submitted that since even the Appellate Court has recorded a finding of fact regarding possession and since the Respondent has now filed a suit for eviction, and the supply of water and electricity being essential service which are required for the purpose of human habitation, the learned Judges of the Appellate Court could not have allowed the Appeal. He submitted that the Trial Court in fact has observed that the Petitioners Plaintiffs can obtain electricity connection for the BEST without no objection certificate from the Respondent Defendant but in the operative order, the prayer for electricity supply was rejected and hence that should be clarified. Mr. Dani submitted that even an injunction not to dispossess without following due process of law has also been reversed by the Appellate Court and there is no justification for such reversal. In so far as water connection is concerned, Mr. Dani submitted that other occupants of the building who are either tenants of subtenants are having their independent water connection from the MCGM which is connected to their respective flats and even the Petitioners should be permitted to have such independent water connection from the MCGM to connect water supply to the suit premises and the Respondent Defendant shall not obstruct such water connection. In so far as electricity connection is concerned, Mr. Dani has made a similar request.
11. On the other hand Mr. Vora, Advocate for the Respondent, opposed the petition by pointing out that the Petitioner No.2 had been arrested by the Anti Terrorism Squad (ATS) and that the Petitioner No.2 is involved in many anti social activities; as a result of which Respondent has also suffered a lot of annoyance and nuisance. Mr. Vora further submitted that section 29 of the Maharashtra Rent Control Act, 1999 cannot be invoked by the Petitioners since they are not tenants or subtenants but they are mere gratuitous licensee and hence, no relief could have been granted in their favour even by the Trial Court. Mr. Vora, therefore, submitted that the Appeal was rightly allowed by the Appellate Court and prays for dismissal of this Writ Petition.
12. Without prejudice to these contentions, Mr. Vora has further submitted that in so far as water connection is concerned, the Petitioners were stealing water from the overhead tank at the terrace level and hence, the Respondent Defendant had put locks.
13. I have carefully considered the rival contentions and I am inclined to partly set aside the impugned orders for the following reasons :
i The fact that the Petitioners are in physical possession of the suit premises is not in dispute. In fact the Trial Court and the Appellate Court have both recorded a finding of fact in that respect. The very fact that the Respondent Defendant has now filed L.E. & C. Suit No. 91/120 of 2011 for possession clearly shows that the Petitioners herein are in physical possession. In this situation the law is well established that a person in possession of immovable property even when his possession is wrongful, cannot be dispossessed without following due procedure prescribed by law and there is series of Judgments of the Supreme Court and other High Courts who have taken this view. The learned Judge of the Trial Court had rightly granted an injunction that Plaintiffs could not be dispossessed by the Defendant without following due process of law and virtually no reason is given by the learned Judges of the Appellate Court as to why even this injunction has been set aside.
ii In so far as electricity supply is concerned, the Trial Court had rightly observed that the Plaintiffs can obtain any independent electricity supply from BEST or other service provider but after having observed this, the Trial Court ought to have moulded the relief in such a manner that it's observations in paragraph 13 of the impugned Judgment are capable of being implemented. This is not done by the Trial Court.
iii In so far as the Judgment of the Appellate Court is concerned, once having found that the Plaintiffs are in physical possession even when the Appellate Court was justified in observing that the nature of possession and the status of the Plaintiffs was in doubt, even without having regard to the provisions of section 29 of the Maharashtra Rent Control Act, 1999, the Appellate Bench has overlooked the provisions of section 15 of the Code of Civil Procedure, 1908 which reserves inherent power with the Court and provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.
(Emphasis supplied)
iv If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court. Hence, a case for grant of relief by exercising the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India is made out, particularly when the learned Judges of the Appellate Court have not applied their mind to the facts of the case in proper perspective and the impugned Judgment and Orders exhibits that the learned Judges of the Appellate Court were completely oblivious of the existence of section 151 of the Code on the Statute Book. It is also necessary to direct that both the suits should be clubbed together for hearing and should be heard together so that a chance of delivery of contrary Judgments are avoided. In the peculiar facts of this case, the hearing of the suit is expedited.
14. Hence, I pass the following Order.
i The impugned Judgment and Order dated 20th August, 2011 passed by the Appellate Bench of the Court of Small Causes at Mumbai in Mis. Appeal No. 115 of 2011 being Exh. "F" to this Writ Petition is quashed and set aside.
ii The Judgment and Order dated 22nd July, 2011 passed by the learned Judge of the Court of Small Causes Presiding in C.R. No. 23, below Exh. 9 in R.A.D. Suit No. 1094 of 2011 being Exh. "E" is restored with clarifications which follow hereinafter :
(a) The Petitioners will be entitled to obtain an independent electricity supply from the BEST or any other service provider and the Respondent Defendant is restrained from raising any objection for such independent electricity supply and even if such objection is raised by the Respondent the same shall be ignored by the service provider or BEST, as the case may be. For the purpose of obtaining such an independent electricity supply any incidental work like fixing of meter or meter box, putting wiring from the meter /electric mains to the meter box or from the meter box to the suit premises is allowed to be done at the cost of the Petitioners and the Respondent shall not obstruct any such incidental work also.
(b) The Petitioners are also permitted to take an independent water connection from the MCGM without requirement of having NOC from the Respondent Defendant. The said water connection shall be obtained by the Petitioners entirely at their own costs. If any objection is raised for this or for incidental work like, laying down pipeline, plumbing etc. that should be ignored and such work is also allowed to be done.
(c) The Respondent is restrained by order of injunction from dispossessing the Petitioners without following due process of law, which is already followed by the Respondent by filing L.E.& C. Suit No. 91/120 of 2011.
(d) Hearing of both the suits is directed to be clubbed together if not already clubbed and both the suits should be heard simultaneously.
(e) Hearing of both the suits is expedited and the suits should be disposed off as early as possible.
(f) It is clarified that this order is strictly without prejudice to the rights and contentions of both the parties on merits of the controversy involved in the suits. It is also clarified that this order shall not be relied upon by the Petitioners to contend that their status as alleged tenants as claimed by them is accepted by this Court or by the Trial Court and the suits shall be tried entirely on their own merits without being influenced by either this Order or the Order of the Appellate Bench, which is quashed and set aside by this order or the order of the Trial Court which is partly revived subject to the clarification given above.
(g) Mr. Vora on instructions states that the Petitioners are indulging in the activity of locking the terrace entry. Mr. Dani on instructions states that no such locks will be put to the iron grills leading to the terrace. This statement is accepted.
(h) All the concerned parties, the Trial Court and the service providers like MCGM, BEST or any other service provider for electricity and water supply will act on an ordinary copy of this order duly authenticated and issued by the Registry.
(i) Rule is made absolute in the aforesaid terms with no order as to costs.
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