Khilji and Khureshi Builders vs Shri Ramnath Pai

U.D. Salvi, J.—This is a civil revision application preferred against the judgment and order dated 20.11.2008 dismissing the suit for possession u/s 6 of the Specific Relief Act being Special Civil Suit no.46/2002/A filed in the Court of CJSD, Vasco-da-Gama. The plaintiff Khilji and Khureshi Builders -a registered partnership firm the applicant herein made a grievance that the respondent / defendant, its construction material supplier, with whom agreements for sale in respect of flat nos. F6 and S6 situate in multifamily dwelling complex at Vaddem, Vasco-da-Gama were executed as a security for the credit outstanding payable by it to the respondent/ defendant, had illegally and forcibly taken possession of the said flats on 23.09.2002 and the respondent / defendant was, therefore, liable to be evicted from the suit flat i.e. flat No.S6 and in pursuit of this grievance, the applicant had instituted the said suit in the Court of CJSD, Vasco-da-Gama.

The respondent/ defendant joined the issue with written statement dated 03.01.2003. Besides the denial of the case that the agreements i.e. the said agreements in respect of the flats in question were executed merely as a security, the respondent / defendant specifically contended that the applicant/ plaintiff after persuasion agreed to hand over the vacant possession of the suit flat on 01.07.2002 and eventually the plaintiff failed to hand over such possession, and, therefore, he had taken the possession of the said flat on 08.07.2002 and this fact was informed to the applicant/ plaintiff vide letter dated 08.07.2002. Virtually, the respondent/ defendant came up with the defence that he had not taken possession of the suit flat forcibly without due process of law.

Learned Advocate Bhobe took this Court through the body of the reasons given by the learned Trial Court in para Nos. 21 to 35 of the impugned judgment. He submitted that the learned Trial Court was expected to focus her mind on the limited question as to whether the plaintiff had succeeded in proving the forcible dispossession of the suit flat at the hands of the defendant and interpret the worth of the letter dated 08.07.2002 Exh.59 produced by the defendant as a main plank of his defence. However, the learned Trial Court, it is submitted, lost herself in the maze of superfluous facts and had refused to decree the suit in his favour with the following observations :

Para 35. It is evident from the evidence produced on record that the defendant has taken possession of the flat after intimating to the plaintiffs and which intimation has also been produced on record. The plaintiffs have nowhere averred that the plaintiffs came to know about the alleged illegal possession by the defendant on 23.09.2002, but on the contrary, it has been pleaded by the plaintiffs that the defendant took illegal possession of the suit flat on 23.09.2002. The very fact that the plaintiffs have not examined Lal Mohammad Khilji, who was the material witness in the present case, adverse inference has to be drawn against the plaintiffs.

Ld. Advocate Bhobe for the applicant/ plaintiff further pointed out the myth of the letter dated 08.07.2002 Exh.59 with reference to cross-examination of the respondent / defendant and submitted that the impugned judgment and decree needs to be reversed for the reason of exercise of jurisdiction by the learned Trial Court with material irregularity.

Ld. Advocate Lotlikar for the respondent / defendant submitted that the scope of the revision petition is limited and confined to what is provided u/s 115 of CPC. Citing the judgment in Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, ; Sanjaykumar Pandey and Ors. Vs. Gulbahar Sheikh and Ors, he submitted that the High Court would not interfere with the decree or order u/s 6 of the Act except on a case for interference being made out within well settled parameters of exercise of revisional jurisdiction u/s 115 of the Code of C.P. In the instant case, he submitted, the case of forcible dispossession on 23.09.2002 was not made out through evidence by the applicant/ plaintiff and the applicant / plaintiff was taking advantage of the letter dated 08.07.2002 Exh.59 to contend that forcible dispossession of the suit flat had taken place on 08.07.2002; and the applicant/ plaintiff having failed in establishing its case of forcible dispossession on 23.09.2002, ought not to have succeeded in the suit before the Trial Court. He further submitted that non-examination of Lal Mohammad Khilji to whom the letter Exh.59 was addressed, must prove counterproductive to the applicant/ plaintiff. In his view, the learned Trial Court was not at error in exercising the jurisdiction u/s 6 of the Specific Relief Act while dismissing the said suit.

Paras 14 and 19 of the plaint substantially reveal the case of the plaintiff necessary for pleading its case u/s 6 of the Specific Relief Act. It is revealed from the said paras that on 23.09.2002 the plaintiff (applicant) found that he had unlawfully removed the locks put to flat Nos. F6 and S6 and had put his own locks thereby creating false impression that he was in possession; and in the aforesaid circumstances, the defendant had illegally and forcibly taken possession of the suit flats on 23.09.2002 and remained liable to be evicted therefrom. In order to meet this case, the respondent/ defendant adduced in evidence the letter dated 08.07.2002 addressed to Lal Mohammad Khilji -M/s. Khilji and Khureshi Builders Exh.59, the contents of which are as under :

With respect to my oral discussion with you in respect of the taking possession of the above flats, I have to inform you that you had agreed to give possession on 01.07.2002.

You had not taken any steps in this regard nor have you given me physical possession. I am informing you by this letter that today I am taking possession of both the above mentioned flats, this letter may be taken as letter of possession from my side in respect of above flats.

Virtually, the letter Exh.59 projects scenario of the respondent/ defendant taking possession of the said flats, which was not given to him either by the Lal Mohammad Khilji or M/s. Khilji and Khureshi Builder-the plaintiff. The respondent/ defendant in his cross-examination deposed that the letters referred to by him in para 14 of the affidavit in chief; (several letters addressed by him to the plaintiff in connection with various meetings for demanding possession of the flats) were sent through ordinary post and addressed to Lal Mohammad Khilji at his office in Kossambe Building Vasco. He further deposed that Lal Mohammad Khilji despite his promise to give him possession of the said flat on 01.07.2002 was not able to hand over the possession due to some work of Aluminum windows and on completion of such work, Lal Mohammad Khilji had handed over the possession of the said flat to him. This averment consciously made is contrary to what is revealed in the letter dated 08.07.2002 Exh.59. Veracity of the letter dated 08.07.2002 Exh.59 which forms the main plank of defence is blown to pieces with the averments of the respondent/ defendant. What remains, therefore, is the case of applicant/ plaintiffs that they had found that the defendant had unlawfully removed the locks put on the suit flat and had illegally and forcibly taken possession of the said flat on 23.09.2002. The averments of the applicant/ plaintiffs in respect thereof and those denouncing the letter dated 08.07.2002 (para 25 of the affidavit in chief) gain credibility and obviate the need for examination of the Lal Mohammed Khilji.

The Ld. Trial Court completely overlooked the aforesaid material aspect of the case and thereby exercised the jurisdiction with material irregularity.

In the result, this revision petition must succeed with costs throughout. Order dated 20.11.2008 dismissing the Special Civil Suit no.46/2002/A by the Ld. CJSD, Vasco-da-Gama is set aside. The respondent/ defendant shall hand over the possession of the suit flat - S6 situate at second floor of the building ''Namrata Chambers'' standing on the land known as ''PRIBICHEM'' OR ''CARBOTA'' at Vaddem, Vasco-da-Gama, Tal. Mormugoa more particularly described in the plaint to the applicant/ plaintiff on or before 31st July, 2010.