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DATTA MAHADEO SHINDE V/S RAMESH NAMDEO PATIL , decided on Friday, July 9, 1993.
[ In the High Court of Bombay, Appeal From Order 510 Of 1991 . ] 09/07/1993
Judge(s) : BHIMRAO N. NAIK
Advocate(s) : D.C.Shah, R.B.Pal, V.V.Pal, .
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  "1994 (1) MAH.L.R 471"  







    Subject Index:Code of Civil Procedure 1908 Or.39R.1 Or.39R.2     BHIMRAO N. NAIK J. ( 1 ) HEARD Shri Shah for Appellant Shri Pai for Respondents-defendants in the main Appeal. ( 2 ) TODAY Civil Application No. 642 of 1993 is placed before me for orders which is taken out by the original defendants - Respondents in the appeal for vacating the order of ad-interim relief granted by this Court on 26th June 1991. I am informed by the counsels appearing for both the sides that the papers in this matter were missing in particular the papers relating to the original Civil Application and subsequently the records were required to be reconstructed in March 1992 and on more than one occasion the applications were filed by the Respondents in the main Appeal for disposal of the main appeal and the applications were rejected. This Civil Application was shown on board for final hearing. Instead of hearing the Civil Application 1 directed the parties to argue the main Appeal on its own merits and Mr. Shah learned Counsel appearing for the Appellant in the main Appeal argued the Appeal in extenso. I have heard him and after hearing both the sides. I am inclined to dismiss this Appeal and vacate the interim relief in their favour and may reasons are as follows. ( 3 ) THE present appellant plaintiff filed Short Cause Suit No. 218 of 1991- In that Suit the plaintiff took out Notice of Motion bearing No. 155 of 1991 Prayer clause (a) in the said Notice of Motion is as follows : -that pending the hearing and final disposal of the suit the Defendants by themselves their servants agents representatives hirelings and/or any person or persons claiming through or under them be restrained by an order and injunction of this Honble Court from forcibly dispossessing and/or interfering or obstructing with the peaceful use occupation and enjoyment of the suit premises viz. Caia Nos 17-A and 17b situate on 3rd floor of the building known as Hind Services Industries Co-operative Society Ltd. at near Parkway Hotel Officer Veer Savarkar Marg Dadar bombay 400 028 without following due process of law. ( 4 ) IT is noted by the learned Judge who disposed of the Motion that on 10th January 1991 the learned Advocate appearing for the plaintiff Mr. Shah who has presently argued the matter for Appellant moved the learned judge City Civil Court at night and obtained ad-intenm injunction in terms of Prayer (a ). No notice was given to the Respondents defendants. The plaintiffs case in short appears to be that he has purchased Gala Nos. 17a and 17b from one Mr. Patil whose whereabouts and existence is also not known. He Produced the Agreement of Sale purported to have been executed by Shri Patil on 2nd March 1978. It is revealed from the Agreement of Sale that Gala Nos. 17a and 17b are purchased by the plaintiff from one shrin Patil and in the Agreement even the name of Respondent is not properly mentioned. On the basis of this it was contended by the plaintiff before the learned Additional Principal Judge that he is in settled possession and he can not be removed without due process of law. Initially ad-interim relief was granted ex parte and when the Society came to know about this grant of ad-interim relief it made an application for vacating the said relict. How ever the matter was not being heard for Quite some time and therefore the society approached this Court and brother Agarwal J. passed and order whereby he directed that the application for vacating interim relief be disposed of on merits on 20th March 1991 itself and accordingly the learned judge after hearing both the sides and after going through the merits of the matter recorded a finding that there is no gala like Gala No 17-A or 17-B or Gala No. 13-A or 13-B as referred to in the plaint. Even the ideality of the suit property is not established. He also prima facie held that there is no document to indicate that the plaintiff has purchased the galas in the suit property of that he has become member of the Society and thus he recorded finding that the plaintiff failed to prove that he is in settled possession. The learned Judge held that this is one of those fit cases where an ad-interim injunction which was granted earlier is deserved to be vacated. He noted that the plaintiff was acting as security agent and he was supplying or providing guards to the Respondent-Society and beyond that he had no connection whatsoever with the Society and thus the learned Judge vacated the ad-interim injunction which was granted earlier on 10th January 1991 and at the request of the learned Advocate appearing for the society original agreement of sale dated 2nd March 1978 between the plaintiff and shri Patil was seized and it was directed to be kept in the custody of the learned Registrar. ( 5 ) BEING aggrieved and dissatisfied by the aforesaid order this Appeal is filed and ad-interim injunction was obtained and the Respondents filed application for vacating that ad-adinterim relief and as indicated by me above instead of considering the application for vacating ad-interim relief I decided to hear the Appeal itself.( 6 ) MR. Shah learned Counsel appearing for the Appellant-plaintiff contended that he is in settled possession for more than 15 years and in order to support his contention today by way of rejoinder he produced one sketch whereby he indicated the possession of the disputed property purported to be Gala Nos. 17-A and 17-B. In reply to the said rejoinder Mr. Pai learned counsel appearing for Respondents-defendants brought to my notice the original sanction plan and if one compares these two plans one can very easily see that by the occupation the entire passage is obstructed and one can not make use of the stair case. 1 am prima fade satisfied that plaintiff himself named these galas as Gala Nos. 17-A and 17-B. These numbers are not supported either from the documents of the society or from the documents ol Municipal Corporation. There is nothing on record so show that at any point of time any rent was paid by the plaintiff to the defendant-Society. Mr. Shah learned Counsel appearing for the Appellant contended that rent was being deducted from his salary even to substantiate this plea nothing is shown either to the learned judge who disposed of the Motion or nothing is brought to my notice. Hence all that has come on record is that the present plaintiff was security agent who was supplying the guards to the Society and such an agent was provided for some place and such an occupation by such agent cannot be construed as occupation with some right as is being claimed and the concept of due process cannot be extended to such a case and hold that the person who has no right whatsoever is entitled to get protection of law and that he cannot be removed without following due process of law. ( 7 ) HENCE 1 see no merit in the Appeal 1 am in complete agreement with the view taken by the learned Judge. There is no substance whatsoever in the Appeal and the same is dismissed with costs. Certified copy expedited. ( 8 ) MR. Shah at this stage applied to stay operation of this order I stay operation of this order for a period of four weeks from today.