-Report by Muskan Vasaani
High Court Of Bombay while hearing the writ petition on 14th February 2023 in the case of Milind B. Jadhav & Ors. (Petitioners) Versus Usha S. Patel & Ors. (Respondents), dismissed the writ petition with exemplary costs of Rs. 25000/-
FACTS:
In the present case, the Respondents herein who were the Original Plaintiffs filed a suit against Mr Rafique Malbari (Original Defendant No. 1), Mr Bhimdas Jadhav (Original Defendant No. 2) and Mr Milind Jadhav (Original Defendant No. 3, son of Defendant no. 2and Petitioner herein) for seeking possession, non-payment of license fee and compensation concerning the room bearing chalta No. 589 (part) situated on the ground floor in Municipal House No.25 – Shambhu Building in Survey No. 1/3/3/C of village Mohone, Taluka Kalyan (herein referred to as a “suit premises”). A suit was instituted against Defendant No.2 and Defendant No.3 (Petitioner No.1 herein) because they were found to have the suit property as they were servants of Defendant No.1. Petitioners are legal heirs of deceased Defendant No.2 who expired on 18.09.2016. The Respondents herein had executed a leave and license agreement with the Original Defendant No. 1 for 33 months which expired in 2006. Defendant Nos. 2 and 3 had no connection in the suit as they were only the servants but they have trespassed into the suit property and are occupying the same since before 2006 which is not justified.
However the suit property was not vacated and the Repondents herein (Original Plaintiffs) visited the site and found that it owned Defendant No.2 and 3 i.e. Petitioner No.1 herein and that Petitioners are owners of ‘Shreenath Dairy’, run by the Petitioner No.1 and it stands immediately adjacent to the suit premises and Petitioner No.1 is carrying on business in the name of ‘Sunny Building Materials’ from the suit premises.
The suit filed against Original Defendant Nos.1 to 3 came to be decreed after a full-length trial by the Learned 5th Jt. Civil Judge Senior Division, Kalyan and the Petitioners were aggrieved and dissatisfied with the decree filed Civil Appeal along with Civil Miscellaneous Applicationseeking condonation of delay of 5 months and 23 days in filing the Appeal.
However, the Civil Miscellaneous Application was rejected by the impugned order and the Petitioners filed a Civil Writ Petition which was withdrawn by them themselves and they filed a second appeal in which a stay was granted to the Petitioners for some time but the same appeal was dismissed in the admission stage and therefore the present writ petition was filed
PETITIONER’S CONTENTIONS:
The petitioner contended before this hon’ble court that the impugned order dated 03.01.2022 be set aside and the delay in filing the Civil Appeal be condoned and Civil MiscelleaneousApplication is allowed.
RESPONDENT‘S CONTENTIONS:
The respondents contended before this Hon’ble Court that the Petitioners have no right or grounds to file this petition or appeal whatsoever in respect of the suit premises and that petitioners have not shown any sufficient cause to condone the delay and such applications are required to be dismissed with exemplary costs and the application is filed with an ulterior motive which should be dismissed with exemplary costs of Rs. 5,00,000/- and that this Court should uphold the impugned order.
JUDGEMENT:
The Hon’ble High Court of Bombay dismissed the petition along with exemplary costs on the following grounds :
• Petitioners have no title, entitlement or interest whatsoever in the suit premises. They are rank trespassers who have taken advantage of the legal system and have abused the due process of law at all stages without having been put in possession of the suit premises by the owner.
• Petitioners are owners of ‘Shreenath Dairy’, run by Petitioner No.1 and it stands immediately adjacent to the suit premises. Petitioner No.1 is carrying on business ‘Sunny Building Materials’ from the suit premises and as per the findings returned by the trial court; the possession and occupation of the suit premises is completely illegal.
• that if the delay in such cases is condoned in favour of Petitioners and if they are allowed to prosecute their appeal, it will amount to a bad representation of justice in the facts and circumstances of the present case.
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