Saturday, 14 December 2019

Whether obstructionist notice is maintainable if obstructionist is not in possession of suit property?

The Lower Court proceeded to hold that only a person in physical possession of the suit property can cause obstruction during the execution of the decree. For that reason, the application preferred by the petitioners came to be rejected. This view taken by the lower Court is the subject-matter of challenge in the present petition.

6. Having considered the rival submissions, I have no hesitation in taking the view that the opinion recorded by the lower Court is manifestly wrong. In fact the same is contrary to the spirit of the scope of issues to be answered in the obstructionist proceedings by the Executing Court. However, if any guidance is required in support of this, we may usefully refer to Rules 97 and 101 of Order XXI of Civil Procedure Code.

7. Indeed, Rule 97 may not throw direct light on the point in issue, but the controversy stands squarely answered by the opening part of Rule 101 which mandates that all questions including question relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit.

8. A priori, the purport of Rule 101 is wide enough to encompass the claim of the petitioners that they have acquired right, title and interest in the suit property on account of certain transaction with their predecessors who claim through the Judgment debtor.

9. For the time being it is unnecessary to dilate the controversy as to whether the petitioners have acquired such right after the institution of the, suit for eviction; so as to disentitle them to independently contest the obstructionist proceedings-keeping in mind the tenor of Rule 102 of Order XXI of Civil Procedure Code. That is a matter which will have to be addressed before the Lower Court in the first instance. For the time being I would only observe that the opinion recorded by the Lower Court that only a person who is in physical possession is entitled to cause obstruction and for which reason eligible to be impleaded as party to the obstruction proceeding is untenable in law. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 699 of 2005

Decided On: 11.09.2008

Arihant Builders Pvt. Ltd. Vs. Manjula Vithaldas Kapadia and Ors.

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.




1. Heard Counsel for the parties. Rule. Rule made returnable forthwith by consent. Mr. Sawant waives notice for respondents. As short question is involved, petition is proceeded for final hearing by consent, forthwith.

2. This petition under Article 227 of the Constitution of India, takes exception to the Judgment and order passed by the Small Causes Court at Bombay dated 17th April, 2002 in Misc. Notice No. 65/2002 in Obstructionist Notice No. 12 of 2000 in R.A.E. & R. Suit No. 1329 and 4389 of 1981. The respondents-plaintiffs filed Suit for eviction against the tenant being R.A.E. & R. Suit No. 1329/4389 of 1981. The said suit was decreed in favour of the respondents. Consequent to decree becoming final, the respondents proceeded with execution there-after.

3. During the execution of the said decree, obstruction was caused by third parties. As a result, the respondents took out Obstructionist Notice. During the pendency of the said Obstructionist Notice, the petitioners filed Misc. Notice No. 65/2002 to join them as party to the proceedings on the assertion that the petitioners have acquired right, title and interest in the disputed property in relation to which decree has been passed in favour of the respondents.

4. It is not necessary to advert to the background in which the petitioners claim to have acquired right, title and interest in the suit property as it is not relevant for answering the point in issue in the present petition. Suffice to observe that the application preferred by the petitioners for intervention in the Obstruction proceedings came to be rejected by the lower Court on the sole reasoning that the petitioners were themselves not in physical possession of the suit property.

5. The Lower Court proceeded to hold that only a person in physical possession of the suit property can cause obstruction during the execution of the decree. For that reason, the application preferred by the petitioners came to be rejected. This view taken by the lower Court is the subject-matter of challenge in the present petition.

6. Having considered the rival submissions, I have no hesitation in taking the view that the opinion recorded by the lower Court is manifestly wrong. In fact the same is contrary to the spirit of the scope of issues to be answered in the obstructionist proceedings by the Executing Court. However, if any guidance is required in support of this, we may usefully refer to Rules 97 and 101 of Order XXI of Civil Procedure Code.

7. Indeed, Rule 97 may not throw direct light on the point in issue, but the controversy stands squarely answered by the opening part of Rule 101 which mandates that all questions including question relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit.

8. A priori, the purport of Rule 101 is wide enough to encompass the claim of the petitioners that they have acquired right, title and interest in the suit property on account of certain transaction with their predecessors who claim through the Judgment debtor.

9. For the time being it is unnecessary to dilate the controversy as to whether the petitioners have acquired such right after the institution of the, suit for eviction; so as to disentitle them to independently contest the obstructionist proceedings-keeping in mind the tenor of Rule 102 of Order XXI of Civil Procedure Code. That is a matter which will have to be addressed before the Lower Court in the first instance. For the time being I would only observe that the opinion recorded by the Lower Court that only a person who is in physical possession is entitled to cause obstruction and for which reason eligible to be impleaded as party to the obstruction proceeding is untenable in law. That is the only opinion on the basis of which application preferred by the petitioners for being impleaded as party to the obstruction proceedings came to be rejected.

10. If that opinion falls to the ground, all other questions raised by the petitioners and the contention available to the respondent-decree holder will have to be addressed by the lower Court afresh on its own merits in accordance with law. All aspects in that behalf are left open to be considered on its own merits.

11. Accordingly, this writ petition succeeds. The impugned judgment and order is set aside. Instead, the Misc. Notice 65/2002 is restored to the file of the Lower Court to its original number to be proceeded on its own merits in accordance with law on other issues available to the parties which will have to be answered by the lower Court. The Lower Court shall dispose of the said notice as expeditiously as possible preferably not later than end of January 2009. Parties to appear before the Lower Court on 6th October, 2008 when appropriate directions be passed by the Lower Court as may be advised so as to ensure that the restored notice of the petitioners is disposed of within the specified time.

Arihant Builders Pvt. Ltd. vs. Manjula Vithaldas Kapadia and Ors. (11.09.2008 - BOMHC) : MANU/MH/1287/2008
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