Clement Gasper D’souza & Anr. vs Gregory John Mathanna & Ors.

These interim applications are filed to bring on record the names of the heirs and legal representatives of original revision applicant no. 1 in the application for restoration and the civil revision application, respectively. The names of the heirs and legal representatives are mentioned in the schedule annexed to the applications.

Learned counsel for the applicants submits that applicant no. 1 expired on 15^th March 2010. However, applicant no. 2 was unaware that an application was required to be filed. It was only after a query was made by the advocate after the court hearing on 9^th July 2026 that he informed the advocate that applicant no. 1 had expired. Learned counsel for the applicants submits that thereafter immediate steps were taken to file these applications. However, in the peculiar facts and circumstances of the case, there is a delay of almost 16 years in filing the applications.

Learned counsel for respondent no. 1, i.e. original plaintiff, submits that the reasons given for delay are not acceptable. He submits that only to delay the hearing of the proceedings, no steps were taken within time.

I have perused the applications. The civil revision application was listed on the final hearing board and was dismissed for non-prosecution on 16^th February 2026 as none had appeared for the applicants. When the application for restoration came up for hearing, this court had called upon the learned advocate for the applicants to point out the merits of the civil revision application. Hence, the application for restoration was adjourned with a clarification that the restoration application will be heard only when the civil revision application is argued on merits. Thereafter, on 9^th July 2026, learned counsel for the applicants requested time to take further steps, as the civil revision application stood dismissed so far as applicant no. 1 was concerned. Accordingly, the present applications are filed.

In view of the sequence of events as referred to above, the reasons mentioned in the applications for delay are acceptable and justifiable. I see no reason to disbelieve the grounds raised in the applications. For the reasons stated in the applications, delay is condoned, and the applicants are permitted to carry out amendment in the restoration application and civil revision application to show applicant no. 1 as deceased and represented through the heirs and legal representatives as per the schedule of amendment. Amendment to be carried out within four weeks.

This application is for restoration of the civil revision application which was dismissed for non-prosecution on 16^th February 2026.

Learned counsel for the applicant submits that inadvertently the advocate missed the matter on 16^th February 2026. However, when the applicant contacted his advocate in the first week of March 2026 to verify the status, the applicant learnt that the civil revision application was dismissed for non-prosecution on 16^th February 2026. Learned counsel for the applicant submits that it was only due to oversight that the advocate could not remain present when the civil revision application was dismissed.

Learned counsel for respondent no. 1 opposes the application on the ground that the applicants are making an attempt to defeat the decree passed in favour of respondent no. 1. He submits that the possession decree in the suit filed under Section 6 of the Specific Relief Act, 1963 [“Specific Relief Act”] is dated 3^rd October 2009. Hence, the attempt on the part of the applicants is only to defeat the decree.

In view of the facts of the case, learned advocate for the applicant was called upon to first point out the merits of the civil revision application. Accordingly, I have heard the parties on the merits of the civil revision application.

In the facts and circumstances of the case and for the reasons stated in the application, it is allowed in terms of prayer clause (a), (b) and (c).

The civil revision application is restored to file and is taken up for final hearing.

This civil revision application is filed under Section 115 of the Code of Civil Procedure, 1908 [“CPC”] by the original defendant nos. 1 and 2 to challenge the judgment and decree passed by the City Civil Court in a suit filed by respondent no. 1 (plaintiff) under Section 6 of the Specific Relief Act. The trial court has decreed the suit by granting a declaration that the plaintiff has been dispossessed forcibly without following due process of law from the premises, i.e. Shop Nos. 2 and 3, which were a single unit. Defendants are directed to restore the plaintiff’s possession. A decree for permanent injunction is passed restraining the defendants from dispossessing the plaintiff without following due process of law.

The plaintiff claims to be in possession through the original tenant of the suit premises. Defendant nos. 1 and 2, i.e. present revision applicants are the owners of the suit premises. According to the plaintiff, he had executed a leave and licence agreement in favour of one Mohammed Akbar Nagori for conducting business in the suit premises. According to the plaintiff, his licencee, Mohammed Akbar Nagori, had handed over possession to the plaintiff on 25^th March 2005, and he had executed a further agreement in favour of one Santosh Yadav. The plaintiff has therefore pleaded that after Mohammed Akbar Nagori vacated the business premises and handed it over to the plaintiff, his new licensee Santosh Yadav and the plaintiff attended the suit premises on 25^th March 2005. At that time, the plaintiff and Santosh Yadav were manhandled by 12 to 13 women who were related to the defendants. Hence, a police complaint was filed.

Thereafter, when the plaintiff visited the suit premises on 31^st March 2005 at around 3. 00 pm along with Santosh Yadav, the suit premises were found locked from inside. After the shutters were opened, the plaintiff found that there was a door constructed in the end wall of Shop Nos. 1 and 2, by breaking open the wall dividing Shop Nos. 1 and 2. The plaintiff therefore claims that he was dispossessed on 31^st March 2005. Hence, the suit was filed under Section 6 of the Specific Relief Act.

Defendant nos. 1 and 2 filed their written statement and denied the suit claim. Defendant nos. 1 and 2 contended that the plaintiff was dispossessed on 25^th March 2005 and not on 31^st March 2005 as claimed by the plaintiff. They further contended that in view of the date of dispossession on 25^th March 2005, the suit was barred by limitation.

The trial court framed the issue of limitation and answered it in favour of the plaintiff by accepting the date of dispossession as 31^st March 2005. The objection of pecuniary jurisdiction and the city civil court’s jurisdiction to try and entertain the suit was also held in favour of the plaintiff.

Learned counsel for the applicants submits that on a plain reading of the plaint it would reveal that dispossession date was 25^th March 2025 and not 31^st March 2005. He relied upon the relevant pleadings in paragraphs 19 and 25 to support his submissions that even as per the plaintiff’s pleadings it is clear that the date of dispossession was 25^th March 2025. He submits that the police complaint relied upon by the plaintiff was not produced before the court and only the receipt of the NC complaint was produced.

The complaint was filed by Santosh Yadav and not the plaintiff. Hence, according to the learned counsel for the applicants, the plaintiff failed to prove the date of dispossession as 31^st March 2005. He submits that, only to bring the suit within the limitation, the date of dispossession was pleaded as 31^st March 2025. He therefore submits that the suit under Section 6 of the Specific Relief Act could not have been decreed as it was clearly barred by limitation.

Learned counsel for the applicants further submits that the suit was also liable to be dismissed on the point of incorrect valuation of the suit premises. He submits that the valuation is much higher than the valuation made in the suit and thus, if the suit premises were correctly valued, the City Civil Court would not get jurisdiction to decide the suit.

Learned counsel for the applicants therefore submits that in the absence of any substantial evidence of dispossession on 31^st March 2005, the suit is liable to be dismissed as barred by limitation. Hence, the impugned judgment and decree would warrant interference by this court.

Learned counsel for respondent no. 1 supports the impugned judgment and decree. He submits that the plaintiff has led substantial evidence to support his theory of dispossession. There is no dispute on the plaintiff’s possession over the suit premises. The incident of 25^th March 2005 pertained to the allegation made by the plaintiff that the plaintiff and his licensee were manhandled by a few women who were related to defendant nos. 1 and 2.

Even the narration of the incident of 25^th March 2005 shows that there was no question of any dispossession on that date. The incident of dispossession of 31^st March 2005 is proved by the plaintiff by leading substantial evidence by examining the plaintiff and the other independent witness. He submits that the defendants failed to step into the witness box to support their pleadings about the dispossession of 25^th March 2005. Hence, the impugned judgment is based on the substantial evidence led by the plaintiff. There is no error in the decision. Hence, no interference is warranted with the impugned judgment.

I have carefully perused the papers of the civil revision application and the compilation of additional documents filed on behalf of the applicants. There is no dispute on the plaintiff’s possession. The ownership of the present applicants is also not disputed. The facts pleaded regarding the original tenancy are also not in dispute and are not much relevant so far as the present civil revision is concerned. The controversy in the present civil revision application pertains to the two incidents of 25^th March 2005 and 31^st March 2005.

The additional compilation contains the notes of evidence which show that the plaintiff has led evidence through himself to support the incident of 31^st March 2005. The allegation regarding the adjoining shop nos. 1, 2 and 3 and breaking open of the wall to enter shop nos. 2 and 3 is pleaded and proved by the plaintiff with the help of a hand-sketched map and supporting evidence. The deed of assignment by the original tenant in favour of the plaintiff and the other relevant documents to show that the plaintiff was in possession of the suit property are accepted by the trial court. The incidents of 25^th March 2005 and 31^st March 2005 are discussed in detail by the trial court. With reference to the evidence produced on record, the trial court has accepted the dispossession of 25^th March 2005.

The cross-examination conducted on behalf of the present applicants is considered by the trial court, and it is held that the plaintiff’s evidence regarding the incident of 31^st March 2005 has gone unchallenged. It is held that the suggestions were given only regarding the alleged dispossession of 25^th March 2005; however, the plaintiff has maintained his contention regarding the incident of manhandling on 25^th March 2005 and the actual dispossession on 31^st March 2005. The defendants have not rebutted the evidence by stepping into the witness box or leading any independent evidence. The contention raised in the written statement regarding surrendering of the suit premises on 25^th March 2005 by Mohammed Nagori is rightly disbelieved by the trial court for want of any evidence. Since the defendants have failed to produce any evidence, the theory of dispossession of 25^th March 2005 is rightly disbelieved by the trial court.

The other issues regarding valuation and jurisdiction are also correctly decided by the trial court. There is no material on record to show that the valuation was incorrectly made. The issue regarding the trial court’s jurisdiction is also rightly decided based on the scope of Section 6 of the Specific Relief Act, 1963, where only the issue of possession and dispossession of the relevant dates giving the cause of action to file the suit is required to be examined.

The disputes, if any, between the owners and the original tenant of the plaintiff would be irrelevant for deciding the prayer for possession under Section 6 of the Specific Relief Act. The trial court has therefore rightly discussed only the issue of possession and dispossession and the relevant date for the point of limitation. The findings recorded by the trial court are based on the correct appreciation of the facts and evidence on record. There is no jurisdictional or any other manifest error in recording the reasons in the impugned judgment. The impugned judgment therefore would not warrant any interference in exercise of powers under Section 115 of the CPC.

The civil revision application is therefore dismissed.

It is clarified that the interim protection in the civil revision application stands vacated.