Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
(CNR NO.MHSCA30014472022)
Presented on: 15.11.2022
Registered on: 17.11.2022
Decided on: 04.01.2025
Duration Y M D
2 01 19
IN THE COURT OF SMALL CAUSES AT MUMBAI
[BANDRA BRANCH]
(Appellate Bench)
REVISION APPLICATION NO. 104 OF 2022
IN
EXHIBIT-26
IN
EXECUTION APPLICATION NO. 105 OF 2012
IN
RAE & R SUIT NO. 978/2961 OF 1986
1. Shri Lavjari Shiv Yadav (since deceased)
1(a) Mrs. Chabbidevi wd/o. Lavjari S. Yadav
Age 70 years, Occ: Housewife,
1(b) Mr. Mahendra Yadav s/o Lavjari S. Yadav
Age 45 years, Occ: Service
1(c) Mr. Surendra Yadav s/o. Lavjari S. Yadav
Age 39 years, Occ: Service
1(d) Mr. Keshav Yadav S/o. Lavjari S. Yadav,
Age 30 years, Occ: Temp. Work
2. Shri Tilakdhari Shiv Yadav
Age 65 years, Occ: Temp. Work
All are residing at Room Nos. 1 & 2,
Chawl No.1, Chandrabali Shukla Chawl,
Near Shukla Stable No. 93, Jijamata Marg,
Andheri (E), Mumbai-400 069
Mob. No. 7666366679
Email ID. : Nil ...Applicants/
(Original Defendants)
V/s.
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2
1. Shri Chandrabali Rajnarayan Shukla
(since deceased)
1(a) Mr. Daroga Chandrabali Shukla
Age & Occ not known
1(b) Mr. Brijbhushan Chandrabali Shukla
Age & Occ: not known
All are residing at Chandrabali Shukla Chawl,
Near Shukla Stable No.93-A, Jijamata Marg,
Andheri (E), Mumbai-400 069 … Respondents/
(Original plaintiffs)
A.N. Rodrigues : Advocate for the applicants.
D. D. Singh : Advocate for the respondents
Coram : Smt. A. S.Khadse
Additional Chief Judge,
&
Shri D. R. Mali, Judge
Court Room No. 31,
I/C. C. R. No. 41
Date :04.01.2025
JUDGMENT: - (Per Smt. A. S. Khadse, Additional Chief Judge)
1. This revision petition has been preferred by the
applicants/original defendants against order dated 20.10.2022 of the
learned trial court below application (Exh. 26) for granting stay to
warrant of possession till disposal of the said application and also to
allow defendants to lead evidence on the ground of slum in RAE & R
Suit no.978/2961 of 1986, whereby, the said application came to be
rejected.
2. Both the parties are hereinafter referred as per their
nomenclature in the original suit. The applicants are original defendants
and respondents are original plaintiffs.
In brief, the facts of the case are as under :-
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3. Admittedly, the plaintiffs have filed original suit for eviction
and recovery of arrears of rent against defendants, it came to be
decreed on 23.09.2009. Being aggrieved by the same, the defendants
preferred appeal no. 233 of 2009, it was also dismissed on 02.08.2022.
The defendants had challenged the same by preferring the Civil revision
application in the Hon’ble High Court. The plaintiff had filed said
execution application in it as per order dated 07.10.2012 warrant of
possession had been issued against the defendants.
4. According to the defendants, CTS No. 397,397(pt)and
397/1 to 284, wherein, the suit premises is situated is re-declared as the
slum as per gazette notification dated 23.12.2008. Inspite of the same,
the plaintiffs have suppressed the said facts from the court while filing
the said execution application. By filing an application under Right to
Information Act before the slum rehabilitation authority, for getting
information whether area, wherein, the suit premises is situated is
declared as a slum. They had received reply from the said authority
alongwith the copy of gazette notification dated 23.12.2008, whereby,
those CTS numbers are declared as a slum as per Section 4(1) of the
Maharashtra Slum Act, 1971. As the plaintiffs have suppressed the said
material facts from the court, it is very much necessary for them to lead
evidence to that effect. If such opportunity is not given to them, much
irreparable loss, harm, damage and injury will be caused to them.
Because, if the decree in the original suit will be executed then they will
be deprived of their rights, title and interest over the suit premises.
Hence, they have prayed for granting stay to the warrant of possession
issued by the learned trial court till disposal of the said application, they
be allowed to lead evidence on the ground of slum etc, by filing the said
application.
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5. The plaintiffs opposed the said application by filing hand
written say on the said application itself, wherein, they have stated that
the original suit is already decided on merits. In it, the issue of slum is
also decided, the executing court cannot go beyond the decree and nor
lead any evidence, the order of warrant of possession has been passed ,
it is not yet stayed by the Hon’ble High Court. The said application is
abuse of law. Accordingly, they prayed to reject the said application
with compensatory costs
6. After considering rival submissions of both the sides, their
learned advocates as well as record, the learned trial court has rejected
the said application.
7. Against it, the defendants have preferred this revision
petition by raising several grounds in this revision petition, such as, the
learned trial court has not considered documents on record, facts and
settled principle of law. Resultantly, impugned order is erroneous.
Hence, the same needs to be set aside by allowing this revision petition.
8. On the basis of rival submissions of both the parties
following points arises for our consideration. We have given our
findings thereon for the reasons stated in subsequent paras:
POINTS FINDINGS
1.Does the impugned order is erroneous? In the negative.
2.Does interference of this court is warranted
in setting aside impugned order? In the negative
3.What order? Revision petition is
dismissed with costs as
per final order.
R E A S O N S
9. The learned counsel for the defendants has argued that the
defendants were not aware that the suit premises is re-declared as a
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slum, when they came to know about the same, they had moved an
application under Right to Information Act, in pursuance thereof,
received the gazette notification dated 23.12.2008 and 29.06.2017
which clearly states that the area of the suit premises is re-declared as
slum. He has argued that the plaintiffs have concealed the said facts in
their said execution application which goes to the roots of the case. He
has further argued that in view of those reasons, it is very much
necessary for the defendants to lead evidence on the ground that area
of the suit premises is re-declared as a slum, in view thereof, without
seeking prior permission of the competent authority, the decree passed
in original suit cannot be executed. He has further argued that
accordingly, said application has been filed by them for staying the
proceeding of execution including warrant of possession. He has further
argued that the said facts clearly state that though there is clear
evidence for allowing the said application still the learned trial court
has rejected the same. He has further argued that accordingly, the
impugned order is erroneous order and same needs to be set aside by
allowing this revision petition.
10. The learned counsel for the plaintiffs has argued that the
decree passed in original suit is confirmed in the said appellate
proceeding. He has further argued that in the original suit as well in
appeal proceeding, the issue regarding slum is discussed in detailed. He
has further argued that for the said reason, there is no substance in the
said application, the same is the only reasons for the learned trial court
to reject the same as per impugned order. He has further argued that
for the said reasons, this revision application devoid of any merit.
Hence, he has prayed for its dismissal with compensatory costs.
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11. After considering the rival submissions of both the parties,
their advocates, documents placed on record, the question arises before
us is whether there is substance in the above stated case of defendants ?
The same can be answered effectively with the help of above stated
points. Hence, here we take an opportunity to discuss those points one
by one.
As to point no.1
12. Admittedly, as per judgment and decree dated 23.09.2009,
the original suit came to be decreed, the appeal preferred against it had
been dismissed on 02.08.2012. Being aggrieved by the same, the
defendants have preferred civil revision application. The order dated
16.10.2012, below exh. 1 in the said execution application states that
the warrant of possession had been issued through bailiff. Further order
dated 07.12.2012 below Exh.1 of the said execution application states
that, “
In view of the order of the Hon’ble High Court in CRA no. 646 of
2012 dated 17.10.2012 interim relief is granted in the matter.
Therefore, the matter be kept stayed till further order of the Hon’ble
High Court.’’ From this much admitted facts, it appear that in view of
the said order dated 07.12.2012, the said execution application has
been stayed till further order of the Hon’ble High Court.
13. It is pertinent to note that in a judgment and decree passed
in original suit, whereby, decree of eviction is passed in favour of the
plaintiffs, the learned trial court has given finding on the issue at serial
no.6 i.e. ‘ Does the defendant prove that the suit premises fall under
slum or and plaintiff has filed original suit without permission of the
Competent Authority under section 22 of the Maharashtra Slum
Clearance Act, 1971?’ in the negative. The said decree is confirmed
in the above stated appeal also.
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14. Though as per order dated 07.12.2012 below Exh. 1 on the
said execution application, in view of order dated 17.12.2012 in the
said Civil Revision application, the matter is stayed till further order of
Hon’ble High Court. But, thereafter, the defendants have produced no
order in respect of what happened in the said civil revision application.
Accordingly, this court sue moto search the same in CIS. At that time, it
appears that as per order dated 02.04.2024, the said civil revision
application is dismissed and defendants are directed to vacate the suit
premises within 10 weeks from the date of uploading of the said order .
Para nos. 18 to 20 of the said order read as under :-
18. The Civil Revision Application is dismissed. No cost.
19. At this stage, Ms.Desai has prayed that her client
desires to challenge the finding recorded by this Court
before the Supreme court.
20. Mr. Singh has opposed the request made by Ms. Desai.
The applicant(defendant) is granted 10 weeks to vacant the
suit premises from the date of uploading this order, on an
undertaking been filed by all the adult members in the family
of the applicant (defendant)within a period of one week
from today. The said undertaking should state that they are
the only members who are in occupation of the suit premises
and they will not create any third party interest in the suit
premises and they will pay the agreed rent of the suit
premises till the time they vacate the suit premises. A copy of
the said undertaking should be furnished to the other side.’
15. From the same, it appears that, the decree of eviction
passed in original suit stands confirmed in the said civil revision
application as per order dated 02.04.2024 of the Hon’ble High Court.
In view thereof, the above said reasons are no good grounds for staying
the warrant of possession till disposal of the said application.
Accordingly, the said application needs to be rejected. The learned trial
court has also rejected the same as per judgment and order.
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Accordingly, the said order is as per law. Therefore, we answer point
no.1 in the negative.
As to point no. 2.
16. In view of our answer to point No.1, learned trial court has
rightly rejected the said application by considering legal and factual
aspect. Thus, interference of this court is not warranted in setting it
aside impugned order. Therefore, we answer point No.2 in the
negative.
As to point No. 3:
17. In view of our answers to point nos. 1 and 2, there is no
substance in the grounds raised in this revision petition as well as above
submissions of defendants and their learned advocate. Accordingly, this
revision petition needs to be dismissed with costs. Therefore, we
proceed to pass following order.
O R D E R
1. This Revision Petition is dismissed with costs.
2. Inform to the learned trial court, accordingly.
I agree,
( D.R. Mali) (A.S.Khadse)
Judge, Additional Chief Judge
C. R. No. 31 C. R. No. 31
I/C. C.R.No 41 I/C. C. R. No. 41
Court of Small Causes,(B.B) Court of Small Causes,(B.B)
04.01.2025 04.01.2025
Judgment dictated on : 04.01.2025
Judgment transcribed on : 04.01.2025
Judgment checked & signed on : 04.01.2025
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