ORDER
H.L. Gokhale, J.
1. This Appeal under Clause 15 of the Letters Patent filed by the appellant (original defendant No. 2) seeks to challenge the order dated 22nd January, 2004 passed by a learned Single Judge on Notice of Motion No. 68 of 2002 filed by the original plaintiff who is respondent No. 1 herein. Suit No. 29 of 2002 is filed by respondent No. 1 as a dispossessed person under Section 6 of the Specific Relief Act, 1963 to recover possession of the immovable property concerned. In that Suit, he had taken out the above Notice of Motion wherein prayer (a) was that pending disposal of the Suit, the High Court Receiver be appointed the Receiver of the property being front side Ground Floor Bungalow admeasuring about 1500 sq. feet situated at Gupta Bhavan Nos. 166, 167, N.A. No. 18-B, Gundavali Village, Andheri (East) Mumbai ('the said property' for short) and for a further direction to the Receiver to take possession of the said property and to put the plaintiff in possession thereof. This Motion has been made absolute in terms of prayer Clause (a) by the impugned order. Respondent No. 2 to this Appeal is the landlord of the said property, who is Defendant No. 1 in the Suit. It was the case of respondent No. 1 (original plaintiff) that he was the tenant of the suit premises and he has been physically removed from the said property by the Appellant on 9th December 2001, by taking law in his hand. The Suit has been filed on 27th December 2001 and the Motion on 9th January, 2002.
2. Mr. Bobde appears for the Appellant, Mr. D'Vitre for respondent No. 1 and Mr. Samdani appears for respondent No. 2. Mr. D'Vitre and Mr. Samdani have raised a preliminary objection to the maintainability of this Appeal. They relied upon Section 6(3) of the Specific Relief Act, which provides that no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. They have drawn our attention to a judgment of the Apex Court in the case of The Union of India v. The Mohindra Supply Co. reported in : [1962]3SCR497 . That was a matter concerning an appeal under Section 39(2) of the Arbitration Act, 1940 wherein the question was as to whether in view of a specific bar to an appeal under that section, a second appeal under Clause 10 of the Letters Patent of the Punjab High Court would be available. The Supreme Court took the view that Section 39(2) had restricted the right of appeal and the same would not be available. Thereafter they drew our attention to another judgment of the Apex Court in the case of State of West Bengal v. Gourangalal Chatterjee reported in : [1993]3SCR640 . That was also a matter under Section 39(2) of the Arbitration Act, 1940 and the Apex Court held that the appeal would not be available to a Division Bench of the High Court of Calcutta under Letters Patent. Both the Counsel further drew our attention to a judgment of a Division Bench of this Court in the case of Municipal Corporation of Greater Bombay v. Patel Engineering Co. Ltd. reported in 1994 M.LJ. 90. That was a matter under the Arbitration Act, 1940 and the Division Bench has followed the judgment of the Apex Court in : [1962]3SCR497 . (supra).
3. Mr. Bobde, learned Counsel appearing for the Appellant, on the other hand, drew our attention to a recent judgment of the Apex Court in the case of Vinita M. Khanolkar v. Pragna M. Pai and Ors, reported in : AIR1997SC4415 . It was a matter which went to the Apex Court from this High Court and was concerning a right of appeal under Section 6 of the Specific Relief Act wherein the Apex Court has in terms held that the powers flowing from the charter would not get excluded unless the statutory enactment concerned expressly excluded the appeals under Letters Patent. This judgment of two Judges, however, does not refer to the judgments of the Apex Court reported in : [1962]3SCR497 (supra) and : [1993]3SCR640 (supra). He drew our attention to another judgment in the case of Sharda Devi v. State of Bihar reported in : [2002]2SCR404 which was in the context of the Land Acquisition Act and wherein also a Bench of three Judges of the Apex Court has held that the power of appeal to a Larger Bench under the Letters Patent would not get excluded in absence of any exclusionary provision in the Statute itself.
4. Mr. Samdani, learned Counsel appearing for respondent No. 2, has drawn our attention to another recent judgment of the Apex Court in the case of Ashok Nagar Welfare Association and Anr. v. R.K. Sharma and Ors. reported in : AIR2002SC335 of that judgment, it is recorded that a submission was made to the Apex Court that the judgment in the case of Vinita M. Khanolkar (supra) is per incuriam inasmuch as the propositions therein were running contrary to the law laid down earlier. The Apex Court, however, did not think it necessary to refer the matter to a larger Bench inasmuch as in its view it was not a fit case for interference under Article 136 of the Constitution. Thus, we are faced with the situation that there is a direct judgment on Section 6 of the Specific Relief Act, which provides that an appeal to the larger Bench under the Letters Patent would still survive, whereas there are earlier judgments of larger Benches of the Apex Court concerning similar provisions in other Acts holding that such appeal would not be available.
5. As far as the facts of the present Appeal are concerned, the grievance of respondent No. 1 (original plaintiff) was that he was dispossessed by the Appellant on 9th December 2001. Therefore, what we have to see is as to whether respondent No. 1 had established a strong prima facie case that he was in possession of the property concerned as on the date of his dispossession. As far as the Plaint is concerned, it is averred in Para-13 thereof that on 9th December 2001 at about 4.30 a.m. the Appellant herein along with 30-35 anti-social elements barged into the property with deadly weapons and ransacked and looted all the building material and articles lying in that shop. Respondent No. 1 gave the number of the vehicle wherein the persons concerned came. He alleged that they beat the Manager of respondent No. 1 and a co-worker. This looting continued till about 11 A.M. in the morning and it is further stated that this forcible dispossession took place in the presence of the Police Officers who were standing nearby that property. Respondent No. 1 had lodged a complaint to the Police immediately thereafter but he was not rendered any assistance. Respondent No. 1 relied upon an agreement of tenancy entered into with the landlord on 1st February 1988 and the rent receipts, an application for repairing the premises made to the Municipal Corporation later on 28th November 1993, a copy of the application dated 14th August 1994 entered by the Enrollment Officer for enrolling his name and of his wife as voters showing his residence at the premises, and the Notice under Section 354-A of the Bombay Municipal Corporation Act, dated 21st September 1998 to stop unauthorised construction at the premises. Respondent No. 1 had filed his affidavit in support of the Motion and the Appellant had also filed his reply. It was requested to the learned Judge that a cross-examination be permitted and, therefore, the Appellant and respondent No. 1 were both cross-examined on the basis of the affidavits filed by them. It is also relevant to note that respondent No. 1 had relied upon a Suit which he had filed in the Court of Small Causes Bombay against respondent No. 2-landlord, an order of status quo which was running therein and the Report made by the Commissioner appointed by the Court of Small Causes who had visited the premises just four days before the date of incident i.e. on 5th December 2001.
6. Mr. Bobde, learned Counsel appearing for the Appellant, submitted that . burden of proving that respondent No. 1 was dispossessed was on the 1st respondent and in his submission, respondent No. 1 has not discharged it. He dealt with the documents which were relied upon by respondent No. 1. As far as the tenancy agreement is concerned, Mr. Bobde submitted that whereas the tenancy agreement of the 1st respondent was of 1988, the Appellant had a much prior tenancy agreement i.e. of 1986 with respect to the same premises. As far as the application made to the B.M.C. is concerned, he drew our attention to a letter sent by the Assistant Engineer stating that his department had not received the particular application. With respect to the application for enrollment as a voter is concerned, Mr. Bobde relied upon a letter from the enrollment Authorities stating that respondent No. 1 was not enrolled at that particular address. As regards the Report of the Court Commissioner, he submitted that the Appellant was not a party to that Suit and, therefore, that Report should not be relied against the Appellant.
7. As far as the documents of the Appellant in support of his case are concerned, Mr. Bobde relied upon the Rent Receipts which were issued in the year 1986, the agreement of tenancy and a subsequent draft Deed of Conveyance. Respondent No. 2-landlord, however, has disputed having entered into any such arrangement to transfer the property to respondent No. 1. Whereas it was the case of respondent No. 1 that he used to carry on the storage and sale of building material in the suit premises in the name of 'Khan Brick House', the case of the Appellant was that he was using the premises as a sort of store room to keep fire crackers therein and he had obtained a permission of the Municipal Corporation in the year 1998. Mr. Bobde relied upon the Report dated 10th September 1997 of the Municipal Inspector who visited the site for inspection for that purpose. He submitted that the Appellant had filed a writ petition to remove the front structure and that the structure was demolished on 30th July 1998. Mr. Bobde, therefore, submitted that the learned Single Judge has erred in accepting the documents and the version of respondent No. 1 and that he ought to have accepted the version of the Appellant. Appellant's case was that the Appellant had not made any attempt to dispossess respondent No. 1 from the premises and that, in fact, the Appellant was in possession thereof at all material times and he continued to remain in possession thereof after the alleged incident also.
8. Mr. Samdani, learned Counsel appearing for respondent No. 2, on the other hand, submitted that respondent No. 2 had never entered into the tenancy agreement nor any such conveyance with the Appellant. The Appellant was a good acquaintance of respondent No. 2 and the Appellant was trying to take advantage thereof. The case of respondent No. 2 was that though the agreement of tenancy and the rent receipts were signed, the 1st respondent was never put in possession.
9. Mr. D'Vitre learned Counsel appearing for respondent No. 1, submitted that respondent No. 1 stayed in the premises earlier. It was damaged in riots of 1993 and he had applied to the Municipal Corporation for repairs thereof. Subsequently he shifted his residence therefrom and used it for business. Mr. Bobde had relied on a reply of Municipal Corporation that the application was not received by the office of the Assistant Engineer. This did not disprove the case of respondent No. 1 inasmuch as the application was admittedly not addressed to the Assistant Engineer but was addressed to the Ward Officer and the stamp acknowledging the Receipt thereof by the Ward Officer is very much seen on its copy. Similarly the letter by the Enrollment Authorities that the name of respondent No. 1 was not registered as a voter will not take away the force of the Form which the Enrollment Officer has entered to enroll respondent No. 1 and his wife as voters. Nobody has disproved that such an application was entered. In any event, Mr. D'Vitre submitted that in the Suit filed in the Court of Small Causes there was an order of status quo and the Report made by an Advocate who was appointed as a Commissioner clearly stated as to how respondent No. 1 was in possession thereof. A number of photographs were enclosed therewith showing the name-plate of respondent No. 1 and various articles which were stored therein. That Report was made on 5th December 2001. He drew our attention to the large number of affidavits made by various persons who are undisputedly tenants of the property known as 'Gupta Compound' wherein the suit premises are situated. They are persons belonging to different communities and all of them unequivocally stated that respondent No. 1 was in possession of the premises concerned. Mr. D'Vitre pointed out that the entire property was known as Nos. 166 and 167, Gupta Compound. There were two bungalows therein, one on the front side and other on the rear side. Respondent No. 1 was concerned with the bungalow in the front side, whereas, at the highest, the claim of the Appellant was with respect to the bungalow on the rear side. He submitted that the Appellant was trying to take advantage of the fact that the address of all the structures in that compound was all throughout mentioned as 166 and 167, Gupta Compound. However, as far as possession of the front bungalow is concerned, one will have to go by the Report made by the Commissioner appointed by the Court of Small Causes which was of immediately prior period as well as affidavits made by large number of tenants who were staying in the same property. Mr. D'Vitre drew our attention to all the documents which were relied upon by the Appellant in his support, and pointed out that they all stopped at the year 1999. We are concerned with dispossession of respondent No. 1 on 9th December 2001 and as to who was in possession as on that date. As far as possession is concerned, he submitted that respondent No, 1 has made out a clear case before the learned Single Judge and the learned Judge was right in coming to the conclusion which he had arrived at. It is material to note that respondent No. 1 had produced the rent receipts up to February 2001.
10. On this background, if we see the order of the learned Single Judge, what we find is that the learned Judge has dealt with the submissions of both the parties. The learned Judge has framed the points which arose out of controversy before him. The learned Judge has also commented upon the draft sale-deed which was relied upon by the Appellant and rightly so. The sale-deed did not mention the fact that the Appellant was in possession of the suit premises or any part of the entire property as a tenant as claimed by him. That would have been a necessary averment, had he really been in possession thereof. The learned Judge has further referred to the four Rent Receipts all dated 27th January 1986, which were relied upon by the Appellant and has commented thereon that he has not produced any receipt of having paid the rent thereafter. He has noted that all the documents which were relied upon by the Appellant were only up to the period 1999, as against the documents produced by respondent No. 1 which were pertaining to the years 1988 to 2001 and it indicated his continuous possession. The learned Judge thereafter has referred to the report made by the Commissioner appointed by the Court of Small Causes in Suit No. 1211 of 2001. He has further referred to the photographs annexed to the Commissioner's Report showing the name boards, styled 'Khan Brick House' to the suit premises, 10 cement bags of coromandal make, 50 bags of neeru (L and T Company's make), 30 bags of cement of Birla make and then various articles lying in the premises. The learned Judge thereafter commented that the material was consistent with the stand of the 1st respondent that he was using the suit premises for the purpose of storing the building material which was his business. The case of the Appellant was that one Shri Shirke who was appointed as Watchman and his brother were all the while in the suit premises. The learned Judge has, therefore, commented in Para-14 of the order that if that was so, this Shirke would have pointed out to the Commissioner that respondent No. 1 was not in possession and in any case, the learned Judge has commented that it would not have been possible for anybody to bring such a large quantity of building material in the suit premises suddenly. The learned Judge has thereafter referred to authorities with respect to appointment of Receiver in such a situation and taking possession of the premises with the assistance of the Receiver at an interlocutory stage in a Suit under Section 6 of the Specific Relief Act. Meghji Jetha v. Kalyan Nanji reported in 1998 (1) BCR 263 and Ramesh Devchand v. Jayant Kumar reported in : AIR1998Guj120 . Last but not the least, he has relied upon the judgment of the Apex Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. reported in : [1990]1SCR332 where in a little different situation the Apex Court has laid down the law that in appropriate cases the mandatory injunction at interlocutory stage can be granted when necessary.
11. It is material to note that at the Motion stage the learned Judge was not required to take oral evidence. Yet with a view to do complete justice, he permitted the parties to cross-examine the two contesting persons on the basis of their affidavits.
12. Having noted the submissions of the learned Counsel appearing for the parties and having gone through the judgment and order passed by the learned Single Judge, what we find is that, prima facie, respondent No. 1 had placed before the learned Single Judge the strong material in support of his case that, in fact, he had been dispossessed as claimed by him on 9th December 2001. He has produced the documents which show his continuous occupation of the suit premises right from the years 1988 to 2001, as against which all the documents, even if they are to be related to the premises concerned, which are relied upon by the Appellant, stopped at the year 1999. It is material to note that the Appellant does not dispute that such an incident did take place. In fact, in Para-8 of his affidavit affirmed on 31st December 2001, the Appellant states that attempt was being made to dispossess him through illegal means. He further states that similar attempt was made on 9th December 2001 by the landlord along with respondent No. 1 when his Security Guards resisted that attempt. In this very paragraph, the Appellant has stated that he had already filed a Suit in the Bombay City Civil Court being Suit No. 6397 of 2001 for various reliefs, therein. If that is so, the least that was expected of the Appellant was to move for an appropriate interim order in that Suit, if any such attempt was made to dispossess him. No such application has been made by the Appellant at any point of time. The affidavits of a large number of tenants in the very property belonging to different communities in support of respondent No. 1 go to support his case. There is no reason for them to make any such statements in favour of respondent No. 1 and those statements are not controverted. Looking to this entire material; in our view, the learned Judge was right in coming to the conclusion that respondent No. 1 had been dispossessed on the particular date. The proceedings before the learned Single Judge had taken good time. The Suit would take further couple of years to reach for final hearing. Having come to the strong prima facie conclusion in favour of respondent No. 1, the learned Judge was right in passing the mandatory order relying upon the judgment of the Apex Court in the case of Dorab Cawasji Warden (supra) and in appointing the Receiver for the suit premises with a further direction to hand over possession thereafter to respondent No. 1. In our view, if at all any appropriate case is required for passing any such order, this was the one and the learned Judge was fully justified in passing the order that he has passed. We are, in fact, constrained to observe that the manner in which the Authorities of the Police have acted in this matter in not rendering the assistance as claimed by respondent No. 1 is most disturbing. However, we do not intend to go into that aspect beyond that.
13. For the reasons stated above, on merits itself, we do not find any substance in the Appeal and, therefore, we hereby dismiss the same with costs. Inasmuch as the Appeal is dismissed on merits, we are not rendering any finding on the preliminary objection which was raised by the respondents herein. Since the Appeal is dismissed, the interim orders passed earlier will stand vacated.
14. Mr. Bobde applies for stay of this order Mr. D'Vitre opposes the request. As we have noted above, the learned Single Judge has followed the law laid down by the Apex Court and which is what we have approved. In view thereof, we do not see any reason to continue the stay any further. Request is rejected.
15. Receiver and parties to act on a copy of this order duly authenticated by the Personal Secretary.
16. Certified copy expedited.