IN

IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL

CIVIL

CIVIL APPELLATE JURISDICTION.

APPELLATE JURISDICTION.

APPELLATE JURISDICTION.

WRIT PETITION St. No. 23266 of 2006.

In

Appeal in Notice of 269 of 2005.

In

Interim Notice No. 3399 of 2004.

In

Appeal No. 464 of 1996.

In

R.A.Suit No. 312 of 1984.

Zakiaben M.Merchant ..Petitioner.

Vs.

Zaitunbi Abu Allarakha ..Respondent.

Vijayalaxmi Nikam,Counsel for the Petitioner.

CORAM:

CORAM:

CORAM: V.C

V.C

V.C.DAGA,J.

DAGA,J.

DAGA,J.

DATED:

DATED:

DATED: 28.09.2006.

28.09.2006.

28.09.2006.

P.C.:-

P.C.:-

P.C.:-

1]

Heard the learned Counsel for the

Petitioner. Perused petition.

2]

This petition is directed against the

Judgment

and

orders

dated

6.9.2003

(Exh.A)

together with the orders dated 28.2.2005 and

28.8.2006.

THE

THE

THE FACTS:-

FACTS:-

FACTS:-

3]

Factual aspect of the petition depicts

that

the

Petitioner

is

a

landlady

having

filed

R.A.E.

and

R.Suit

No.

312

of

1984

in

Small

Causes Court for eviction of the Respondents

on 27.10.1983.

4]

In the aforesaid Suit, defendants

[[2]]

appeared

and

filed

his

W.S.

In

the

year

1993

issues

were

framed.

Thereafter,

defendant

started

remaining

absent

in

the

suit.

Consequently, on 16.6.1995 the evidence of the

plaintiff alone was recorded.

5]

On 8.11.1995 ex-parte judgment, order

and

decree

was

passed

by

the

Small

Causes

Court directing eviction of the

Respondents-defendants.

6]

Defendants took out proceedings for

setting

aside

ex-parte

decree

vide

Interim

Notice

No.

824

of

1995

on

20.12.1995.

The

said

Notice

came

to

be

discharged.

Thereafter,

he

preferred

an

Appeal

against

the

said

order

of

discharge.

Appeal

came

to

be

allowed.

Ex-parte

decree

came

to

be

set

aside

vide

judgment

and

order

dated

6.9.2003

(Exh.A)which

is

being

challenged

after

lapse

of

more

than

three

years

in

this

petition.However,

during

pendency

of

the

appeal,

decree

for

eviction

appears

to

have

been

executed.

The

defendants

were

evicted

from the suit premises in execution of the

decree.

[[3]]

7]

It

appears

that

original

defendant-tenant

forcibly

entered

into

possession

of

the

suit

premises,

which

required

the

petitioner

to

file

suit

under

Section

6

of

the

Specific

Relief

Act,

being

Small Causes Suit No. 2329 of 1996 to claim

possession of the suit premises.

8]

The aforesaid suit came to be decreed by

a

Judgment

and

decree

and

order

dated

6th

July,

2004.

Wherein

the

Respondent

No.1

was

directed

to

hand

over

the

possession

of

the

suit

premises

to

the

present

petitioner

landlady

with

liberty

to

the

tenant

to

file

appropriate

application

for

restitution

of

the

suit

premises

under

section

144

of

the

Civil

Procedure

Code

in

the

pending

suit

being

R.A.E.Suit

No.

312

of

1984.

The

direction

was

given

to

the

Small

Causes

Court

to

decide

the Application for restitution on its own

merits.

9]

It appears that during the pendency of

the

suit,

the

Appeal

No.

464

of

1996

challenging

the

dismissal

of

the

Interim

[[4]]

Notice

No.

824

of

1995

came

to

be

allowed

by

the

impugned

judgment

and

order

dated

6th

September,

2003.

This

order

is

being

challenged

by

th