WP-5010-22 & IA 4298-23.odt v. Shri Romesh Sharma ofBombay Indian Inhabitant residingAt Sant Sadan Bungalow No. 10

WP-5010-22 & IA 4298-23.odt4. Expired5. Mrs. Gayatri Vinay Parekhhaving address at 14-15, D. I’LL Plazo,Little Gibbs Road, Malabar Hill, Mumbai-400 006.6. Vasantrai Chhaganlal Daveboth of Bombay, Indian Inhabitants having their office at C/o. Jaymes Engineering Ltd.Great Western Building, 1st Floor, 130132, Shahid Bhagat Singh Road, Mumbai-400 023… Respondents.Mr. Zal Andhyarujina, Senior Advocate with Mr. Shrey Sancheti, Mr. J. A.Khan and Mr. Bipin Joshi for Applicant/Petitioner.Mr. G. S. Godbole, Senior Advocate with Mr. R. L. Gonsalves i/b Ms EventaGonsalves for Respondents.CORAM: ABHAY AHUJA J.RESERVED ON : 25TH JULY, 2023PRONOUNCED ON: 28TH NOVEMBER, 2023 JUDGMENT:-1.The Petitioner has filed the above Writ Petition under Article 227 ofthe Constitution of India assailing the order of the Appellate Court dated30th March, 2022, passed in Appeal No. 23 of 2022 in Exhibit No. 279 inRAE & R Suit No. 54/176 of 1994 before the Small Causes Court, Bandra,(the “said suit”) allowing the Appeal of the original Defendant No.2.Nikita Gadgil2 of 30 WP-5010-22 & IA 4298-23.odt2. The Petitioner as the original Plaintiff has earlier filed the said suitfor eviction against the Respondents/Original Defendants in respect of suitpremises being sub plot no. 3 of Plot No. A-2, CS No. 164/2 of Vile ParleDivision along with shack and structure at Gandhigram Road, Juhu,Mumbai-400 049 (the “said premises/suit premises/ the said property”),admeasuring about 438.70 sq. meters, on the grounds of illegalsubletting, arrears of rent and bona fide requirement.3.The suit was resisted by the Respondents/Original Defendants byfiling their written statement and additional written statement. The suitwas taken up for evidence. The Petitioner filed their affidavit of evidencealong with documents. The documents were, according to the Petitioner,marked by the Trial Court and kept for cross-examination of PW-2.4.It is the case of the Petitioner that on 4th March, 2010 a Power ofAttorney (“first Power of Attorney”) was executed by Respondent No.1 infavour of Harish Chandar Mishra as Respondent No.1 was in judicialcustody inter alia granting Harish Chandar Mishra physical possession ofthe said property and to represent the donor of the power before anyofficial authorities of any State/Central Government or local body, whichNikita Gadgil3 of 30 WP-5010-22 & IA 4298-23.odtmay be connected and/or concerned with the suit property in any mannerand to make any statement, applications, affidavits, undertakings, etc. onbehalf of the donor in his name in respect of the said property and to dealwith all matters.5. During the pendency of the suit, the Petitioner took out an interimapplication being Exhibit No. 236 for injunction and other reliefs. The saidexhibit came up for hearing on 20th January, 2021. The Trial Court grantedan order of status-quo on 20th January, 2021, which was continued andthe application under Exhibit 236 was made absolute on 24th September,2021.6. On 20th January, 2021, the learned Single Judge of the SmallCauses Court (the “Trial Court”) granted status-quo till filing of the replyin Exhibit No. 236 in the following terms :-“In the interest of justice Both Parties Are Directed To MaintainStatus-Quo Till Filing Of Reply By Deft no.2.”7.Thereafter, on 10th February, 2021, the learned Single Judge of theSmall Causes Court adjourned the matter for reply till 22nd February, 2021.On 22nd February, 2021, the Single Judge passed a direction under ExhibitNikita Gadgil4 of 30 WP-5010-22 & IA 4298-23.odtNo.236 inter alia stating “Reply not filed keep for arguments. Adjournedfor Hrg. in 236”. On 9th March, 2021, Respondent No.1 filed anapplication being Exhibit No. 252 for setting aside the “No Reply” orderdated 22nd February, 2021. On 7th April, 2021, the Single Judge extendedthe order of status-quo till the decision was passed under Exhibit No.236i.e. the status-quo application in the following terms:-“ In The Interest of Justice Order Below Ex. 236 Is ExtendedTill Decision of Ex.236 on Merit”8.On 26 July, 2021, the Single Judge allowed the Respondents to filea reply setting aside the No Reply order, subject to costs of Rs.2,000/- asunder :-“App Is Allowed Sub. To Cost Of Rs.2000/-. To Be Paid To PlffOn or Before 09-08-2021”9.On 9th August, 2021, reply was filed to the status-quo applicationviz. Exhibit No. 236, which was taken on record as Exhibit No. 265 on 2ndSeptember, 2021.10.A Power of Attorney dated 2nd September, 2021 (“Second Power ofAttorney”), came to be executed by Respondent No.1 in favour of Mr.Taizun Nisar Hassonjee, inter alia to have physical possession of the saidNikita Gadgil5 of 30 WP-5010-22 & IA 4298-23.odtproperty and to represent any Office/Authorities of the State/CentralGovernment or local body, which may be connected and / or concernedwith the said property, in any manner whatsoever, and to make anystatement, application, undertaking, etc. and on behalf of the donor andin his name in respect of the Suit Property or to deal with all matters. Thesaid Power of Attorney also stated that the averments/contents in the saidirrevocable Power of Attorney have been explained in vernacular languageand after admitting it as correct the same had been signed. Clauses 1 and9 of the said Power of Attorney are usefully quoted as under:-“1. To have physical possession of my “said property” and torepresent me before any office/authorities of my state/CentralGovt. or local body which may be connected and / or concernedwith the “said property” in any manner whatsoever and to makeany statement, applications, affidavits, undertakings, etc and onmy behalf and to my name in respect of our said property or todeal with all matters.9. That the averments/contents this irrevocable Power ofAttorney have been read over and explained in my vernacularlanguage and after admitting it as correct have signed the same.AND whereas I hereby agree to ratify and confirm all andwhatever other acts may said Attorney shall lawfully do executeor perform or cause to be done, executed or performed inconnection with the said property under and by virtue of thedeed not withstanding no express powers in that behalf ishereunder provided” Nikita Gadgil6 of 30 WP-5010-22 & IA 4298-23.odt11.On 24th September, 2021, an order was passed under Exhibit No.236 inter alia granting temporary injunction from dispossessing or alteringthe suit property, which is usefully quoted as under :-“22. Plaintiff no.2 has prima facie pointed out that it has rightto preserve the suit premises till decision of the suit. Plaintiffno.2 has also pointed out that Defendant no.2 has from time totime made additions and alterations of permanent nature in thesuit premises since beginning, so it has right to preserve the suitpremises, being landlord. Thus, Plaintiff no.2 has shown that ithas prima facie, balance of convenience, lies in its favour aswell as it will suffer irreparable loss. If Defendant no.2 is notrestrained. Therefore, considering all these aspects, I answerPoint No.1 to 3 in the affirmative.” 12.It is the case of the Petitioner that by execution of Power of Attorneydated 2nd September, 2021 by the Respondent No.1 in favour of TaizunNisar Hassonjee, the order of status-quo dated 20th January, 2021 wasviolated. Mr. Andhyarujina, learned Senior Counsel for the Petitioner/Original Plaintiff No. 2, would submit that as there was contravention ofthe status-quo order dated 20th January, 2021, passed below Exhibit No.236, which was later extended till decision of Exhibit No. 236 on 7th April,2021 and allowed on 24th September, 2021, Petitioner was constrained totake out Exhibit No. 279 for striking off defence of theRespondent/original Defendant No.2. The said application viz. Exhibit No.279 was resisted by the Respondent by filing Affidavit in reply to whichNikita Gadgil7 of 30 WP-5010-22 & IA 4298-23.odtrejoinder was filed by the Petitioner. Paragraph 7 of the Respondent’s replyis usefully quoted as under:-“7. With reference to paragraph 6: it is true that, the DefendantNo.2, has executed Power of Attorney dated 2.9.2021. I craveleave to refer to and rely upon the said Power of Attorney,when produced. I say that, in the month of September, 2021, Iwas unavailable to act, as the Constituted Attorney of theDefendant No.2 on account of my personal commitments. Thedefendant No.2 was required to challenge the order dated25.8.2021 passed on Application Exhibit 259, by filing RevisionApplication, before the Hon’ble Appellate Bench of this Hon’bleCourt. Since the said Revision Application was to be filed,expeditiously, and as I was not available, and the defendantno.2 was not able to personally attend to the filing of the saidapplication, he executed Power of Attorney, in favour of Mr.Taizun Nisar Hassonjee, with identical powers as to have beenconferred upon me, under the earlier Power of Attorney,Interpretation of paragraph No.1 of the said Power of Attorney,dated 2.9.2021, which is reproduced in paragraph No.6 of theApplication is a complete sinister, false, misleading andmisconceived, interpretations of power. The Plaintiffs are wellaware that, the Defendant No.2 has to regularly stay at Delhiand is not able to come to Mumbai frequently. It is, therefore,necessary to permit his respective Constituted Attorneys,including myself to have physical possession of the suitpremises and we have the keys of the suit premises, not as amatter of right but, for the protection and safeguarding of thesuit premises. The said Constituted Attorneys are not claimingany rights whatsoever in respect of the suit premises and areholding the suit premises, for and on behalf of the DefendantNo.2 as his agents, only for the purpose of protecting the suitpremises.” (emphasis supplied)Nikita Gadgil8 of 30 WP-5010-22 & IA 4298-23.odt13.On 20th January, 2022, the Small Causes Court inter alia struck offthe defence of Respondent No.1 i.e. the written statement and additionalwritten statement filed by Respondent No.1, under Order 39 Rule 11 ofthe Civil Procedure Code, 1908, interalia for the following reasons:-“19.In this background, question requires consideration iswhether Defendant no.2 has committed breach of order or not?It is a matter of record that status quo order has been passedon 20/01/2021 in presence of both the parties and thereforeApplication (Exh 236) is decided on 24/09/2021 on merit afterhearing both sides, Defendant no.2 has clearly stated in clauseno.1 of second POA executed on 24/08/2021 andregistered/notarized on 02/09/2021, that Taizun NisarHassonjee is placed in physical possession of the suit premises.Therefore, as per Section 91 of the Indian Evidence, Act, 1872,documentary evidence, excludes oral statement as regards,contents in written documents are concerned. Thus, it is clearthat Defendant no.2 fully knowing that status order dated20/01/2021 is in existence, still he placed Taizun NisarHassonjee in physical possession of the suit premises. Thisactivity amounts to willful default and breach of status quoorder.20.Learned advocate for Defendant no.2 submitted thatorder dated 24/09/2021 below Application (Exh.236) ischallenged before Hon’ble Appellate Bench, Small CausesCourt in Appeal No.174 of 2021. This aspect is totally differentbecause what is required to see is that whether at relevant timeeither party commits breach or contravene order of the Court.As discussed above, the plaintiffs have satisfactorily pointedout that defend No.2 has committed breach of order dated20/01/2021, which is confirmed on 24/09/2021. Therefore,defence of defend no.2 is liable to be struck out as perprovisions of Order XXXIX Rule 11 of the C.P. C. Hence,considering all these aspects, I answer point number one in theaffirmative.”Nikita Gadgil9 of 30 WP-5010-22 & IA 4298-23.odt14. Being aggrieved by the order dated 20th January, 2022, theRespondents filed an Appeal No. 23 of 2022 challenging the same interalia on the following grounds:-“(E) The Learned Trial Judge ought not to have takencognizance of the false, misleading, misconceived, interpretationof the 2nd Power of Attorney by the Appellant. (L) The Learned Trial Judge erred in not appreciating thestatement made by the department in the affidavit in reply thatneither of the Constitution returnees are claiming any rightswhatsoever, in respect of the suit premises, or any part.(M) The Learned Trial Judge Heard in not taking duecognizance of the statement, made in the affidavit in reply, thatthe Constituted Attorneys were permitted to have physicalpossession of the suit premises, and to have the keys of the suitpremises, not as a matter of right, but for protecting andsafeguarding the suit premises.(R) The Learned Trial Judge erred, in not appreciating thesolemn statement of the Deponent. That the defendant No.2,has not conferred any rights to the constitute attorneys underthe said Power of Attorney. (X) The Learned Trial Judge erred in not appreciating that theprovisions of Order 39 Rule 11 are applicable in Maharashtra isdirectory and not mandatory and hence the Learned Trial Judgeought not to have used her discretion against theAppellant/Defendant No.2 in light of the facts of this case.”15.On 30th March, 2022, the Appellate Court allowed the appeal andset aside the order of striking off defence inter alia holding that there wasno order of status-quo on 2nd September, 2021 and moreover by executionNikita Gadgil10 of 30 WP-5010-22 & IA 4298-23.odtof Power of Attorney dated 2nd September, 2021, the Defendant No. 2 hadnot transferred any right, title and interest in the suit property andtherefore, the question of striking off defence of Defendant No. 2 did notarise and that the Trial Court had erred in coming to the conclusion thatby executing the Power of Attorney, the Defendant No. 2 had givenpossession of the suit premises to Mr. Taizun Nisar Hassonjee incontravention of the order of status-quo and thereby setting aside theorder of the Trial Judge, striking off the defence.16.It is against this appellate order that the Petitioner has filed the WritPetition for the following relief :-(b) That this Hon’ble Court be pleased to call for the recordsand proceedings of Appeal No. 23 of 2022 in Exhibit No. 279 inRAE & R Suit No. 54/176 of 1994, CR No. 41, Small CausesCourt, Bandra Branch, Mumbai and after going through thepropriety, tenability and legality thereof be further pleased to setaside and or quash the impugned the Judgment and order dt.30/3/2022 passed in Appeal No. 23 of 2022 in Exhibit No. 279in RAE & R Suit No. 54/176 of 1994, CR No. 41, Small CausesCourt, Bandra Branch, Mumbai” and pending the hearing and final disposal of the Writ Petition thePetitioners have filed the Interim Application for deposit of the Power ofAttorney dated 2nd September, 2021 in this Court and that the RespondentNo. 1 and/or his agents be restrained from acting upon the Power ofNikita Gadgil11 of 30 WP-5010-22 & IA 4298-23.odtAttorney dated 2nd September, 2021 in any manner whatsoever and forCourt Receiver and Public Caution Notice in respect of the suit property.17. I have heard the learned Senior Counsel for the parties andconsidered the rival contentions.18. Mr. Andhyarujina, firstly takes this Court through the array ofparties and submits that the Petitioner herein is Shri Raj Shrusti ResidencyPvt. Ltd. who is the owner of the said premises. The Petitioner had filedthe said eviction suit No. RAE & R Suit No. 54/176 in the Small CausesCourt at Bandra against one Romesh Sharma. It is submitted that the saidRomesh Sharma is an illegal occupant on the suit property, who acquiredpossession of the suit property from Respondents No.4 and 5 vide Leaveand License Agreement dated 1st March, 1986. Thereafter by anAgreement of Sale dated 24th May, 1986. Ms. Ramnarain Sons Pvt. Ltd.viz. the Original Plaintiff No.1 and Original owner of the Suit property,who vide by Deed of Assignment dated 29th September, 2014 assigned thesuit property to the Petitioner. The suit has also been filed against theRespondent No.3-Ms. Jayems Engineering Company Private Limited, whowas the original tenant of the suit property through its Proprietor KimatralNikita Gadgil12 of 30 WP-5010-22 & IA 4298-23.odtKhushalani, who passed away on 22nd June, 1969. The petition is also filedagainst Respondent No.4, who had been deleted as she had expired. TheRespondent No.5 is Mrs. Gayatri Vinay Parekh and Respondent No.6 isVasantrai Chhaganlal Dave, who is the executor and trustee of KimatralKhushalani i.e. Respondent No.3 - proprietors’ estate vide Will dated 15thMay, 1969.19. Learned Senior Counsel for the Petitioner, would submit that thePetitioner is not only seeking setting aside of the Appellate Court’s orderbut also a stay on the Power of Attorney on 24th August, 2021 executed bythe Respondent No.1 in favour of Mr. Taizun Nisar Hassonjee andregistered/notarized on 2nd September, 2021, on the ground that the sameis in violation of the order of status-quo dated 20th of January, 2021 passedby the Trial Court.20. Mr. Andhyarujina, would submit that the basis for taking out theapplication for striking off the defence is the Power of Attorney dated 2ndSeptember, 2021 referred to in Exhibit No. 279. Learned Senior Counselwould submit that a plain reading of the Power of Attorney andparticularly clauses no. 1 and 9 indicate that Mr. Taizun Nisar HassonjeeNikita Gadgil13 of 30 WP-5010-22 & IA 4298-23.odthas been granted possession of the said property and that the Power ofAttorney is an irrevocable Power of Attorney and the deponent has agreedto ratify the acts referred to in the Power of Attorney as well as notreferred in the Power of Attorney. Learned Senior Counsel has drawn theattention of this Court to the Clauses 1 and 9 in the said Power ofAttorney. It is submitted that the conduct of the Respondent no. 1 isrequired to be taken into consideration. The modus operandi ofRespondent No.1 suggests that the Respondent No.1 is delaying thematter, despite the suit being expedited by this Court. That under thepretext of the Power of Attorney, the Respondent No.1 is attempting todeal with the suit property with a view to create complications in thematter. Mr. Andhyarujina, would submit that judicial notice of the contentsof the Power of Attorney is required to be taken.21. Mr. Andhyarujina, would further submit that it is wrong on the partof the Appellate Court to say that there was no order of status-quo on 2ndSeptember, 2021. That the Appellate Court has failed to consider theprovisions of Order 39 Rule 11. Learned Senior Counsel refers toparagraphs 18 and 19 of the order dated 20th January, 2022 of the TrialCourt striking off the defence of the Defendants and submits that there isNikita Gadgil14 of 30 WP-5010-22 & IA 4298-23.odta clear finding of willful default of the status-quo order. Learned SeniorCounsel submits that the same has been fully considered and an order hasbeen passed on the point, whereas the Appellate Court has failed toconsider the same. Mr. Andhyarujina, relies upon the Division Benchdecision of this Court in the case of Tejram Gulab Hazare and Ors Vs.State of Maharashtra and Ors.1 to submit that the expression status-quoimplies the existing state of things at any given point of time. LearnedSenior Counsel would submit that it is obvious that the status-quo cannotmean anything else except the status-quo as existing when the order waspassed. It implies that the situation as on the date of the order is to bepreserved.22. Learned Senior Counsel submits that this view was earlierpropounded by the Hon’ble Supreme Court in the case of Messrs BharatCoking Coal Limited Vs. State of Bihar and Ors.2 Learned Senior Counselwould submit that the proper course for the Defendants would have beento approach the Court, if there was any doubt, before executing the Powerof Attorney dated 2nd September, 2021. That like the Hon’ble SupremeCourt in the case of Messrs Bharat Coking Coal Limited Vs. State of Bihar12010 (6) Mh. L. J.21987 (Supp) SCC 394Nikita Gadgil15 of 30 WP-5010-22 & IA 4298-23.odtand Ors. (supra), this Court should deprecate the conduct of theRespondent No.1 of executing the Power of Attorney dated 2nd September,2021 in favour of Mr. Taizun Nisar Hassonjee inter alia granting himphysical possession of the suit property, despite the status-quo order.23. Learned Senior Counsel submits that the grantor of the Power of theAttorney as well as the grantee are not having clean antecedents. From theevents which have happened since the date of Power of Attorney, it isapparent that the Respondent No.1 is contemplating to deal with, disposeof and create third party rights on the basis of the Power of Attorney.Learned Senior Counsel would submit that the Trial Court had alreadypassed an order maintaining status-quo against the Respondent No.1, butwith a view to wriggle out of the said order the Respondent No.1 is tryingto misuse the Power of Attorney. Learned Senior Counsel submits that theApplicant has downloaded the position and relevant information about thesuit property from the google website, which reflects the location of Triconof whom the Power of Attorney holder, Mr. Taizun Nisar Hassonjee, is adirector. Learned Senior Counsel would submit that from the documentsannexed to the proceedings, it is a newspaper published fact that theRespondent No.1 has linkages to the mafia world and now after issuanceNikita Gadgil16 of 30 WP-5010-22 & IA 4298-23.odtof such Power of Attorney virtually a free hand has been given to him inrespect of the subject property. That from the conduct of Respondent No.1, it is very clear that they want to misuse the machinery of this Court, sothat the Petitioners to get ensnared in petty issues such as inspection ofpleadings etc.24. Learned Senior Counsel would therefore submit that this Court notonly set aside the order dated 30th March, 2022 but also stay the Power ofAttorney by restraining the Respondent No.1 and/or his agents fromacting upon the said Power of Attorney dated 2nd September, 2021 andalso direct that the same be deposited in this Court. Learned SeniorCounsel would submit that in order to protect the property this Court alsoconsider appointing the Court Receiver, High Court Bombay with allpowers under Order XL Rule 2 of the Code of Civil Procedure, 1908, inrespect of the said property.25.On the other hand, Mr. Godbole, learned Senior Counsel for theDefendants would submit that every breach of an order should not giverise to an action under Order 39 Rule 11 of the CPC. Learned SeniorCounsel would submit that the power under Order 39 Rule 11 is directoryNikita Gadgil17 of 30 WP-5010-22 & IA 4298-23.odtand not mandatory. Learned Senior Counsel relies upon a Division Benchdecision of this Court in the case of Ramavatar Surajmal Modi Vs.Mulchand Surajmal Modi3. Learned Senior Counsel submits that both thePowers of Attorney are similar and concurrent. The first Power of Attorneyto Mr. Harish Chandar Mishra is in fact not revoked. Learned SeniorCounsel refers to the reply filed by the first Power of Attorney holder viz.Shri Harish Chandar Mishra to Exhibit No. 279 and submits that since thefirst Power of Attorney holder was not available on account of his personalcommitments, and since Defendant No.2, viz. Respondent No. 1 wasexpeditiously required to challenge the order dated 25th August, 2021,passed on Application Exhibit No. 259, by filing Revision Applicationbefore the Appellate Bench and also since Defendant No. 2 was notpersonally available, the second Power of Attorney was required to beexecuted in favour of Mr. Taizun Nisar Hassanjee on 2nd September, 2021with identical powers. That Defendant No. 2 was required to regularlystay at Delhi and unable to come frequently to Mumbai, therefore, it wasnecessary to permit his respective Constituted Attorneys to have physicalpossession of the suit properties and the keys thereto not as a matter ofright but for the protection and safeguarding of the suit property. That the32004 (2) Mh. L. J.Nikita Gadgil18 of 30 WP-5010-22 & IA 4298-23.odtConstituted Attorneys are not claiming any rights whatsoever in respect ofthe suit property and are holding the suit property for and on behalf ofDefendant No. 2 as his agents only for the purposes of protecting the suitproperty. Learned Senior Counsel relies upon the decision of the Hon’bleSupreme Court in the case of M/s Babbar Sewing Machine Company Vs.Trilok Nath Mahajan4, which was also relied upon by the Division Bench ofthis Court in the case of Ramavatar Surajmal Modi Vs. Mulchand SurajmalModi (supra) and submits that as in the present case, where the default isnot willful or the conduct of the party responsible for the default is notcontumacious and there is reasonable explanation for default, this Court isnot obliged to exercise the power under Order 39 Rule 11 (1) of the CPCto impose a serious penalty such as striking off the defence against theparty responsible for default. Learned Senior Counsel would submit thatsub-Rule (2) which gives a discretion to the Court that even after theorder contemplated under sub Rule (1) of Rule 11 has been passed, uponsufficient cause being shown by the party responsible for the default orcontravention or breach and such party makes amends for the default orcontravention or breach to the satisfaction of the Court, the Court mayrestore the suit or hear the defence on such terms and conditions as it4(1978) 4 SCC 188Nikita Gadgil19 of 30 WP-5010-22 & IA 4298-23.odtdeems fit. Learned Senior Counsel urges this Court to consider thedecision of the Hon’ble Supreme Court in the case of M/s Babbar SewingMachine Company Vs. Trilok Nath Mahajan (supra) and apply Order 39Rule 11 (1) as directory using discretion and not mandatorily as there hasbeen no obstinacy or contumacy on the part of the Defendants or willfulattempt to disregard the order of the Court. Learned Senior Counselsubmits that the rule of striking off of defence should be worked withcaution and used only as a last resort only in extreme cases, which is notthe case here.26. The Trial Court has considered whether Defendant No.2 hascommitted breach of the status-quo order or not. In paragraph 19 of theOrder dated 20th January, 2022, it has observed that the status-quo orderwas passed on 20th January, 2021 in the presence of both the parties andthereafter, the application under Exhibit No. 236 was decided on 24thSeptember, 2021 on merits after hearing both the sides. That theDefendant No.2 has stated in Clause 1 of the Power of Attorney executedon 24th August, 2021 and registered / notarized on 2nd September, 2021that Mr. Taizun Nisar Hassonjee is placed in physical possession of the saidpremises. The Small Causes Court has cited Section 91 of the IndianNikita Gadgil20 of 30 WP-5010-22 & IA 4298-23.odtEvidence Act, 1872 to observe that since documentary evidence excludesoral evidence, as regards contents in written documents are concerned, itwas clear that Defendant No. 2 was fully aware of the existence of thestatus-quo order dated 20th January, 2021 and despite that placed Mr.Taizun Nisar Hassonjee in physical possession of the said property.Observing thus, the Small Causes Court held that the said act clearlyamounted to willful default and breach of status-quo order. Accordingly, inview of the provisions of Order 39 Rule 11 of the CPC, the defence ofDefendant No.2 put forth in written statement and additional writtenstatement was struck off.27.The Appellate Court on the same set of facts has come to aconclusion that on the date of execution of the second Power of Attorney,no status-quo order was in force. It is observed from the dates set out inthe paragraph 9 of the Appellate Court’s order that the date of 7th April,2021, which extended the order of status-quo below Exhibit No. 236, hasnot been taken into consideration by the Appellate Court, while arriving atthe said conclusion that there was no order of status-quo in force on thedate of execution of the second Power of Attorney. Obviously, therefore,the Appellate Court order clearly appears to be erroneous on this findingNikita Gadgil21 of 30 WP-5010-22 & IA 4298-23.odtthat there was no order of status-quo on the date of execution of thesecond Power of Attorney dated 2nd September, 2021. The Appellate Courthas thereafter gone ahead and compared the two Powers of Attorney andobserved in paragraph 22 that since the words used are “to havepossession” and not “put in possession”, there is a difference, which meansMr. Taizun Nisar Hassonjee is to act as an agent and has possession of thesuit premises on behalf of Defendant No.2. That the Power of Attorney isnot an instrument of transfer and also nowhere the same suggests that it isan instrument of transfer of right, title, interest, possession in the suitpremises. The word “to have possession” cannot be read in isolation andtherefore, the Appellate Court expressed its opinion that Defendant No.2had not transferred any possession in the name of Mr. Taizun NisarHassonjee. That the Defendant No. 2 had only appointed Mr. Taizun NisarHassonjee as a Power of Attorney holder and he has been given the rightto have possession of the suit premises to make statements, applications,undertaking, etc. on his behalf and to his name in regard to the suitpremises or to deal with all the matters on his behalf.28.Holding that there was no status-quo order on 2nd September, 2021and the Power of Attorney dated 2nd September, 2021 has not transferredNikita Gadgil22 of 30 WP-5010-22 & IA 4298-23.odtany right, title and interest in the suit premises, the Appellate Court heldthat there was no question of striking off defence of Defendant No.2 andthe order of the Trial Court was set aside.29.Both the learned Senior Counsel have put forth their points of viewwith great erudition. There can be no doubt that an order of status-quo bya Court implies the existing state of things at the given point of time whenthe order was passed and when such an order is passed, the parties areobliged to preserve the situation as on the date of the order. Both thedecisions, Messrs Bharat Coking Coal Limited Vs. State of Bihar and Ors.(supra) as well as Tejram Gulab Hazare and Ors Vs. State of Maharashtraand Ors.(supra), cited on behalf of the Petitioner clearly supports this rule.It has been brought out before this Court that the Appellate Court was notaware of the order dated 7th April, 2021, extending the order belowExhibit No. 236. The second Power of Attorney has been executed on 2ndSeptember, 2021, whereby Mr. Taizun Nisar Hassonjee has been grantedpower by the Respondent No.1 to “have” physical possession of the saidproperty, which is after 7th April, 2021, when the status-quo order wasextended. Therefore, it cannot be said, as observed by the Appellate CourtNikita Gadgil23 of 30 WP-5010-22 & IA 4298-23.odtabove that there was no status-quo order on the date on which the secondPower of Attorney was executed. It has been noted above that theAppellate Court does not appear to have taken into consideration the dateof 7th April, 2021 of the extension of the status-quo order. Status quo, asheld by this Court in the case of Tejram Gulab Hazare and Ors Vs. State ofMaharashtra and Ors.(supra) while relying upon the decision of theHon'ble Supreme Court in the case of Messrs Bharat Coking Coal LimitedVs. State of Bihar and Ors.(supra), means the existing state of things atany given given point of time and cannot mean anything else except thatstate as existing when the order was passed. Status quo implies that thesituation as on the date of the order is to be preserved. On 20th January,2021 both sides were directed to maintain status quo which was extendedon 7th April, 2021 till the decision was passed in Exhibit 236 which wasmade absolute on 24th September, 2021. The second Power of Attorneywas executed on 2nd September, 2021 which is during the subsistence ofthe status quo order. Therefore clearly there was a breach of the order ofstatus quo. Although, it would, therefore, have been appropriate for thisCourt to remand the matter back to the Appellate Court for considerationof the said order and decide the appeal denovo, however, as already muchtime has elapsed, this Court considers it appropriate to decide the matterNikita Gadgil24 of 30 WP-5010-22 & IA 4298-23.odthere itself keeping in mind that the status-quo order was in fact in placewhen the second Power of Attorney was executed.30.However, the striking off of defence of a Defendant for noncompliance of a Court’s order or breach of an undertaking is a serious andgrave consequence. A Division Bench of this Court in the case ofRamavatar Surajmal Modi vs. Mulchand Surajmal Modi (supra) observedthat by making provision of serious penalty of striking off the defenceagainst the party responsible for default, the rule making authority did notintend to leave no discretion to the Court. That, the object of the provisionof Order 39, Rule 11(1) is not defeated if it is held to be directory as theCourt can in its discretion for adequate reasons visit the defaulting partywith the penalty envisaged therein and that if the provision was heldmandatory with no discretion to the Court, that could lead to striking offthe defence even when the default was not found to be wilful or conductof such party not obstinate or contumacious. As observed by the DivsionBench of this Court, the provision does not obligate the Court in everycase of default of a Defendant to strike off the defence. Pertinently Sub-rule (2) gives a discretion to the Court that even after the ordercontemplated under Sub-rule (1) of Rule 11 has been passed, uponNikita Gadgil25 of 30 WP-5010-22 & IA 4298-23.odtsufficient cause being shown by the party responsible for the default orcontravention or breach and such party makes amend for the default orcontravention or breach to the satisfaction of the Court, the Court mayrestore the suit or hear the defence on such terms and conditions it deemsfit. That, if the Court has power to restore the party to the same positioneven after the adverse order has been passed under Sub-rule (1) if a caseis made out under Sub-rule (2), the provision of Sub-rule (1) has to beheld to be directory and not imperative. The Hon'ble Supreme Court incase of M/s. Babbar Sewing Machine Company vs. Trilok Nath Mahajan(supra), as also noted by the Division Bench of this Court, held that thepower of dismissal of suit or striking the defence under Order 11 Rule 21of the Code of Civil Procedure should be exercised only where a defaultingparty fails to attend the hearing or is guilty of prolonged or inordinate andinexcusable delay which may cause substantial or serious prejudice to theopposite party. Relying upon the findings of the Hon'ble Supreme Court inparagraph 14 of the Hon'ble Supreme Court’s decision, the Division Benchof this Court held that Sub-Rule (1) of Rule 11 of Order 39 of CPC to bedirectory and the discretion exercisable by the Court while passing anorder under Sub-rule (1) of Rule 11 of Order 39 CPC has to be inconsonance and in conformity with the decision laid down by the Hon’bleNikita Gadgil26 of 30 WP-5010-22 & IA 4298-23.odtSupreme Court in the case of M/s.Babbar Sewing Machine Company vs.Trilok Nath Mahajan (supra). Summarized simply, power to strike off thedefence under Order 39 Rule 11(1) should be exercised for adequatereasons where the defaulting party fails ultimately in complying with theorder of the Court or undertaking; where the default is wilful and theconduct of the defaulting party is obstinate, contumacious that results incausing substantial or serious prejudice to the opposite party.31.Therefore, whether Order 39 Rule 11 (1) is directory or mandatorydoes not require any further discussion in view of the decision of theHon’ble Supreme Court in the case of M/s Babbar Sewing MachineCompany Vs. Trilok Nath Mahajan (supra) which has been relied upon bya Division Bench of this Court in the case of Ramavatar Surajmal Modi Vs.Mulchand Surajmal Modi(supra). The penalty of striking off a defence isindeed very harsh and such an order must be applied only in extremecases, where there has been obstinacy or contumacy. A party should notbe rendered defenceless unless the entire substratum of the suit has beenwiped off.Nikita Gadgil27 of 30 WP-5010-22 & IA 4298-23.odt32.In the facts of this case, as noted above, evidently, there has been abreach of the status-quo order by the execution of the second Power ofAttorney dated 2nd September 2021. However, a perusal of the reply filedby the first Power of Attorney holder Shri.Harish Chandar Mishra Exhibit279, as quoted above, does not suggest that the said power has beendeliberately executed to breach the order of status quo or the conduct iscontumacious. No right, title or interest in the said property appears tohave been transferred. Since the first Power of Attorney holder was notavailable on account of his personal commitments and since theRespondent no.1 was expeditiously required to challenge the order dated25th August, 2021 passed on Application Exhibit 259 by filing RevisionApplication before the Appellate Bench and that Respondent no.1 was alsopersonally not available being in Delhi, the second Power of Attorneycame to be executed in favour of Mr.Taizun Nisar Hassonjee on 2ndSeptember 2021 with identical powers. It has been submitted that thephysical possession as well as the keys of the suit property is not for thepurposes of conferring any right, title and interest to the Constitutedattorneys but only for the protection and safeguarding of the suit property.In my view, therefore there appears to be a reasonable explanation thathas been offered on behalf of the Defendants for the default. No contraryNikita Gadgil28 of 30 WP-5010-22 & IA 4298-23.odtfact has been brought to my notice. The conduct of the defaulting partycannot be said to be contumacious or obstinate, to be visited with such asevere consequence of striking off the defence put forth in the writtenstatement and additional written statement. It is a principle of law that therights of the parties be decided in a trial after considering the pleadings ofthe plaintiff and the defendant. Striking off of the defence in the form of awritten statement will take away that valuable right of the defendant,which the circumstances of the case as noted above do not warrant.33.For the above reasons, the order dated 30th March, 2022 of theAppellate Court setting aside the order of the Trial Court dated 20thJanuary, 2021 striking off of the defence of the Respondent No. 1(Defendant No.2) as contained in the written statement and the additionalwritten statement is upheld.34.However, even though the breach of the order of status quo asobserved in the facts of this case is not to be visited with seriousconsequences of striking off of defence, however, that does not mean thatthe breach can be allowed to continue particularly in view of the restraint.It would therefore only be fair to direct the deposit of the second Power ofAttorney as well as injunct the Respondent No.1 and/or the second PowerNikita Gadgil29 of 30 WP-5010-22 & IA 4298-23.odtof Attorney holder and/or their agents from acting in accordance with thesecond Power of Attorney in any manner whatsoever.35.Ergo, in view of the above discussion and in view of the breach ofthe order of status-quo as noted above, the Respondents are directed todeposit the second Power of Attorney dated 2nd September, 2021 in theSmall Causes Court and Respondent No. 1 and/or Mr. Taizun NisarHassonjee and/or their agents, employees, servants etc. are restrainedfrom acting in accordance with the said second Power of Attorney in anymanner whatsoever.36.The Trial Court to proceed with the said RAE & R Suit No. 54/176of 1994 and to complete the trial preferably within a period of one year.37.The Writ Petition and Interim Application accordingly standdisposed in the above terms.38.It is made clear that any observation on the merits of the said suit, isonly for the purposes of deciding the present Writ Petition and InterimApplication and the trial Court to decide the suit on its own merits inaccordance with law.(ABHAY AHUJA, J.)Nikita Gadgil30 of 30