M/S BATA INDIA LTD. v. BAI KHATIJABAI HAJI IBRAHIM TAYYAB TRUST

decree passed by the trial Court on 18.06.2010. The Court posted the matter on 26.09.2012. On 26.09.2012, the matter was adjourned to 01.10.2012. It appears that the respondent-landlord again changed the counsel and engaged Shri S.D. Deshpande, Advocate. It is necessary to note that initially the respondent-landlord had engaged Shri M.A. Qureshi, Advocate as counsel and thereafter, Shri R.L. Khapre, Advocate was engaged. Shri R.L. Khapre had granted his no objection and Advocate Shri S.D. Deshpande appeared on behalf of respondent-Trust. At the request of Advocate Shri S.D. Deshpande, the matter was 3 WP4210-12 adjourned to 03.10.2012, when called on 01.10.2012. On

03.10.2012, the parties argued the matter, not on the merits of the case but, on the oral directions of the Court not to take coercive steps for taking possession and the actual taking of possession by the respondent-landlord on 11.09.2012. On

03.10.2012, Shri S.D. Deshpande, Advocate told this Court at least half a dozen times that his client, respondent-trust, had obtained the possession in spite of the oral directions of the Court and the respondent was ready to hand over the possession to the petitioner but, the petitioner's case that the respondent-landlord had obtained the possession with the help of goondas and anti social elements is not correct. The matter was adjourned to 08.10.2012 and this Court directed that the same be listed at the top of the Board so that some necessary orders in regard to handing over of possession could be passed. On 08.10.2012, when the matter was called, Shri S.D. Deshpande, Advocate made a statement, on the instructions of his client, that his client is ready to restore the possession of the property to the petitioner-Company. In view of the aforesaid statement made by Shri S.D. Deshpande, Advocate on 08.10.2012, on more than a couple of times, this Court passed the order on 08.10.2012 directing the respondent-landlord to restore the possession of the property to the petitioner by 5.00 p.m. on the same day. It is informed to this Court that on the same day, i.e. on 08.10.2012, the respondent-landlord through its newly engaged counsel Shri S.M. Puranik, tried to circulate the matter before the Division Bench. The matter was directed to be placed at the end of the Board by the Division Bench on 4 WP4210-12 the same day. It is now informed by the counsel for the parties that at 4.30 p.m., the counsel for the petitioner informed the Division Bench that the order dated 08.10.2012 was passed with the consent of the parties and, hence, there was no question of interference with the order dated 08.10.2012. It is informed that on the statement being made, the Division Bench declined to entertain the appeal against the order dated 08.10.2012. It appears that at 5.00 p.m. on 08.10.2012, the respondent-Trust tried to hand over the keys of the premises in question to the petitioner- Company but, the petitioner refused to accept the keys as the respondent-landlord had placed some furniture, fixtures and garbage in the premises. It is informed to this Court that the petitioner's manager believed that if the possession was taken with the furniture of the respondent-landlord, the trustees may illegally initiate some action against the petitioner. Be that as it may, the possession was not accepted by the petitioner in that condition and in this background, the applications have been filed, one by the petitioner-Company and the other by the respondent-Trust. The writ petition was listed before this Court on

10.10.2012 for considering the application filed by the petitioner-Company for direction to the respondent-Trust to hand over the possession of the property by removing the furniture, fixtures and garbage. At this juncture, it is necessary to mention that Shri S.D. Deshpande, Advocate ceased to appear in the matter since 10.10.2012 and instead Shri S.M. Puranik, Advocate started appearing for the respondent. The matter was adjourned on three occasions due to the personal difficulty of Shri S.M. Puranik. 5 WP4210-12 It is worthwhile to mention that though Shri S.D. Deshpande, Advocate had made a statement before this Court on at least more than six times that his client was ready and willing to hand over the possession to the petitioner and would immediately hand over the same to the petitioner on the directions of the Court, the respondent- landlord has filed an application in this Court stating therein that Shri S.D. Deshpande had not made any statement in this regard. It is conspicuous to note that though it is stated in the application that Shri S.D. Deshpande, Advocate had not made any such statement in the Court, the application is not supported by an affidavit of Shri S.D. Deshpande, Advocate and is supported by an affidavit of the President of the respondent-Trust, who has clearly stated in the application that he was not present in the Court or for that matter, nobody from the side of the respondent-Trust was present in the Court on 08.10.2012. If that be so, it is difficult to understand how a statement that Shri S.D. Deshpande, Advocate had not made any statement in the Court could be made by the President of the Trust, when according to the respondent-Trust, nobody from the respondent's side was in the Court on that day. It is a sorry state of affairs as this case is handled not only by the respondent-Trust in a very ugly manner but, the counsel for the respondent-Trust has also not conducted the case as a true Officer of the Court. The statement that Shri S.D. Deshpande, Advocate did not make any such statement in the Court, even if it was supported by Shri S.D. Deshpande, Advocate's affidavit, would have been disbelieved and discarded by me. The statement was made by Shri S.D. Deshpande, Advocate before me not only on 6 WP4210-12

03.10.2012 but, also on 08.10.2012. On both these occasions, the statement was made not once but, more than a couple of times. In this background and in the background of the facts occurring since 06.09.2012, it would be necessary to consider both the applications. There can be no doubt about the fact that on

06.09.2012, this Court had directed the respondent-Trust not to take any coercive action in regard to possession. When I say that there cannot be any doubt about the fact, it means that the said fact is supported by such evidence which can lead to the only conclusion that this Court had directed the respondent-Trust not to take any action in regard to possession till the returnable date. Not only has the petitioner reiterated in various affidavits and applications that such an oral direction was issued by the Court but, there is also other material to show that such oral direction was issued. Shri P.P. Kothari, Advocate has replied to an e-mail sent by the counsel for the petitioner-Company and the said reply is placed on record to point out that indeed the Court had directed Shri P.P. Kothari, Advocate who was holding for Shri M.A. Qureshi, Advocate that he should inform Shri Qureshi, Advocate that no coercive action as regards possession should be taken. It is stated in the reply that he immediately informed the fact to Shri M.A. Qureshi, Advocate. Apart from the aforesaid reply, I find on record an affidavit filed by one of the trustees of the trust by name Shri Altaf Ahmad that he was informed by his counsel Shri M.A. Qureshi that the Court had orally directed that no action for possession be taken. It is not known why this affidavit sworn by the trustee was not filed in this Court, though a copy of the same was handed over to the counsel for 7 WP4210-12 the petitioner-Company. It is, however, clear that even the trustee of the respondent-Trust was made aware by the Shri M.A. Qureshi, Advocate that this Court had orally directed the respondent not to take any coercive steps in the matter as regards possession. Apart from the fact that there was an oral direction of this Court to the respondent-Trust, in my view, even in the absence of any such direction, the respondent- Trust was not entitled to secure the possession of the property by executing the possession warrant when the respondent- Trust had filed a caveat in the matter and it was the counsel for the caveator, who had sought time. The counsel for the petitioner-Company was ready to work out the matter on that day. When the counsel for the petitioner is ready to argue for the admission and stay of the matter and if the counsel for the caveator seeks an adjournment in the matter, it is not expected of the respondent-caveator to execute or implement the order impugned in the petition. It is presumed that when a caveator seeks time, he would not implement or execute the order challenged, till the next date, on which the matter is fixed. Otherwise, in cases, where a stay is urgently required and where possession of the property may be lost, the counsel for the caveator would ask for time and within that time execute and implement the order of the subordinate Court, thereby sometimes rendering the matter before the higher Court infructuous. The counsel for the respondent has relied on the decision of the Hon'ble Supreme Court reported in (1980) 3 SCC 47 (Babu Ram Gupta Versus Sudhir Bhasin & another) to canvass that a person would not be guilty of an offence under the provisions of the Contempt of Courts Act, 8 WP4210-12 1971 by breaching an oral direction of the Court. It is surprising that though this Court is not taking up the matter in the contempt jurisdiction and is just trying to restore the possession of the property, which was illegally and dishonestly obtained by the respondent-Trust in spite of the oral direction of the Court not to take any steps for securing the possession till the returnable date, the counsel for the respondent-Trust has referred to the aforesaid decision. The counsel for the respondent-Trust insists that the possession was taken legally inasmuch as the possession warrant was applied on

24.08.2012, was granted on 01.09.2012 and was executed on

11.09.2012. Even if the possession warrant was lawfully secured on 01.09.2012, the respondent-Trust could not have executed it till 25.09.2012, i.e. the returnable date, on which this Court had fixed the matter by an order dated 06.09.2012. Many a times granting ad-interim relief in favour of the petitioner on the first date of hearing tilts the balance in favour of the petitioner, and keeping that aspect in view, the Court may not actually grant an ad-interim order in favour of the petitioner and may orally direct the counsel for the respondent, who generally asks for time, not to execute or implement the order of the trial Court. Such oral directions are always followed. This is the first case, at least first that I have witnessed, in which the oral direction has not been followed. Apart from the aforesaid position, Shri S.D. Deshpande, Advocate had made a statement before me, on instructions from the representative of the respondent-Trust, not once or twice, but at least on more than half a dozen occasions on 03.10.2012 and 08.10.2012, that the 9 WP4210-12 respondent-Trust is ready to hand over the possession of the property to the petitioner-Company. Probably, at that time, some good sense must have prevailed on the trustees of the respondent-Trust. It is clear that the respondent-Trust should not have taken the possession of the property till 25.09.2012 or till further orders of the Court, when this Court had orally directed the counsel for the respondent-Trust and the counsel for the respondent-Trust had also conveyed to the trustees of the Trust that the Court had directed the respondent-Trust not to take any action in regard to possession till the returnable date. The respondent-Trust will surely be obliged to hand over the possession of the property to the petitioner-Company not only because the oral directions are not followed but also because the counsel for the respondent-Trust had clearly made a statement on a number of occasions in this Court that the respondent-Trust is ready to hand over the possession of the property to the petitioner-Company. The respondent-Trust tried to hand over the possession of the property to the petitioner-Company but, with lot of furniture and fixtures. The statement made on behalf of the petitioner-Company that the Manager of the petitioner-Company apprehended that the respondent-Trust would again be instrumental in taking some action against the petitioner-Company by retaining the furniture inside the suit property is believable and justifies their refusal to accept the keys. Today, I have asked Shri S.M. Puranik, the learned counsel for the respondent-Trust, as to whether the furtniture lying in the shop really belongs to the respondent- Trust. Shri S.M. Puranik, the learned counsel for the respondent-Trust, has answered in the affirmative. In the 10 WP4210-12 aforesaid set of facts, since the possession of the property has been secured by the respondent dishonestly, with a view to preserve the purity of the Court proceedings, it would be necessary to direct the respondent to hand over the possession of the property to the petitioner. Hence, for the reasons aforesaid, the civil applications are disposed of with a direction to the respondent-Trust to hand over the possession of the property to the petitioner-Company at 9.00 a.m. on 20.10.2012 after removing the furniture and fixtures (which are placed inside the suit premises by the respondent after the possession was obtained by the respondent-Trust on 11.09.2012.) Stand over to 29.10.2012 for admission. JUDGE APTE