1989 (12) TMI 350

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....0 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name, P.A. Dange, V.A. Dange, Haribhan Shivale and Giri Anna Shetty for eviction from the above said premises. The suit was decreed by the Trial Court. The first respondent who was the first defendant in the suit alone filed an appeal against this decree before the District Court. The appeal was dismissed confirming the order of eviction. Thereafter, the first respondent filed writ petition No. 354 of 1975 in the High Court of Bombay and that writ petition was also dismissed. Though defendants 2, 3, 4 and 5 did not file the appeal or take the matter further to the High Court they were implead as respondents in the appeal and the writ petition filed by the first respondent herein. The first respondent thereafter filed Civil Appeal No. 2628 of 1980. The said appeal was dismissed by this Court on 18th of August, 1987. However, at the request of the appellant this Court allowed the appellant to continue to be in possession and carry on the business till 31.3.1989 subject to the "appellant and all those persons who are now occupying the premises as employees or staff and are stay....

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....e said P.A. Dange with the consent of the tenant transferred the said business and the exclusive possession of the hotel to the second respondent herein. Subsequently there was another agreement executed between the tenant and the second respondent on 1.8.1972 under which the second respondent was paying royalty to the tenant and that to the knowledge of the petitioner he was in the occupation of the premises and carrying on the business and that in spite of it he had not been impleaded in the eviction suit or the subsequent proceeding and that therefore he was not bound by the decree for eviction. A rejoinder has been filed by the landlord-petitioner to this reply. As stated earlier the Suit No. 213 of 1970 was filed by the petitioner for eviction not only against the original tenant-K.M.M. Shetty but also against P.A. Dange, V.A. Dange and two others. The case of the petitioner-landlord was that the tenant had sub-let the premises to the said P.A. Dangedefendant No. 2 and V.A. Dange defendant No. 3. The tenant filed written statement contending that he had allowed the second defendant to manage and conduct the said hotel business under the terms and conditions set out under an a....

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....ng that he is not at all concerned in any manner whatsoever with the suit filed by the second respondent, and that he would be filing necessary affidavit in the Suit No. 306 of 1989. The first respondent filed an affidavit in the suit in which also he stated that he had nothing to do with the suit filed by the plaintiff and denied the claim of the plaintiff and further stated that the suit premises had to be handed over to the petitioner by 31.3.1989 as per his undertaking given in this Court. He had also prayed the Court to pass "such suitable orders to facilitate compliance of the orders" of this Court in respect of the suit premises. he had enclosed copy of his reply to the lawyer's notice sent by him to the petitioner along with this affidavit. However, for the first time in the reply filed to the contempt application the first respondent had stated that "the petitioner has with ulterior motives deliberately withheld from this Hon'ble Court material facts i.e. the respondent No. 1 has not been (in landlord's knowledge) in the suit premises since 1967 i.e. even before the suit for eviction was filed in the trial court" and that "at that time of final h....

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....dent, by reason of certain amendments to the Bombay Rents, Hotel and Lodging House Rates Control Act he had become the tenant directly under the petitioner herein and entitled to protection. An interim injuction has been granted by the IIIrd Joint Civil Judge, Thane, on the ground that it is necessary, till the plaintiff establishes his right, to allow him to be in possession. The learned Judge was not well-founded in this view. In the light of the earlier statements made by the first respondent-K.M.M. Shetty, P.A. Dange and V.A. Dange in the eviction proceedings and in this Court and in the light of the undertakings given by the first respondent and 17 others the learned Judge should have directed the plaintiff to prove his claim in the suit first before any relief is given against the defendants pending the suit. It may be mentioned that the argument of the learned counsel of the petitioner was that the first respondent had falsely instigated the second respondent to file the suit and obtain an injunction. If this contention is true then the first respondent is guilty of contempt in not handing over vacant possession as per the undertaking and in fact the second respondent would ....