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  • Article 136 of the Constitution
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  • Article 136 of the Constitution
Smart Summary

Factual and Procedural Background

An interim order staying dispossession was granted by the Court on 24-1-1986. In proceedings before the High Court, a decree for actual possession was being passed in second appeal. The tenant (appellant/petitioner) sought time to hand over vacant possession to the original plaintiffs, requesting about three years. The High Court granted one year’s time on the condition that an undertaking be filed within three weeks stating that vacant possession would be handed over within that time. An undertaking affirmed on 9-11-1984 stated that the appellant would vacate by 31-12-1985, but added a condition that this would be so only if no stay order from the Supreme Court was received, as the appellant intended to appeal.

Legal Issues Presented

The opinion addresses a procedural matter and does not frame distinct legal issues.

Arguments of the Parties

Tenant/Appellant's Position

  • Requested reasonable time to hand over vacant possession in light of the decree for actual possession being passed in second appeal.
  • Sought approximately three years for vacating and handing over possession.

Original Plaintiffs/Respondents' Position

  • Vehemently opposed the request for time to vacate.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court noted that the High Court granted one year’s time to vacate based on an undertaking that was to be filed, reflecting the oral assurance that induced the High Court to grant time. However, the undertaking actually filed introduced a condition: the appellant would vacate by 31-12-1985 only if no stay order from the Supreme Court was received in the intended appeal. The Court treated this as a clear variation from the oral undertaking that formed the basis for granting time. Disapproving what it described as an improper practice of obtaining time on one representation while taking a different stand in proceedings under Article 136 of the Constitution, the Court vacated the interim stay of dispossession and directed immediate delivery of possession.

Holding and Implications

INTERIM ORDER VACATED and the appellant was directed to hand over possession to the respondents forthwith.

The direct effect is that the tenant/appellant loses the protection of the interim stay and must immediately deliver vacant possession to the respondents. The opinion does not indicate any broader implications or that any new precedent was set.

    Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker And Others

    Interim order staying dispossession was granted by this Court on 24-1-1986. It appears that before the learned Judge of the High Court the learned Advocate who appeared for the petitioner, requested that in view of the fact that the decree for actual possession was being passed in second appeal, the tenant might be given some reasonable time for “handing over vacant possession of the suit premises to the original plaintiffs”. He further submitted that a period of about three years might be granted for this purpose. The learned Advocate for the original plaintiffs vehemently opposed this request for time. The learned Judge after considering the request for handing over the possession directed that one year's time be given and further undertaking should be given within a period of three weeks “stating that vacant possession would be handed over within the aforesaid time.” It appears that the undertaking was affirmed on 9-11-1984 wherein it was stated that the appellant would vacate and give vacant possession of the suit premises by 31-12-1985 i.e, to say after one year if “by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court”. This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year's time. We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filing the undertaking and taking the different stand, in applications under Article 136 of the Constitution. In that view of the matter the interim order is vacated and we direct that the appellant should hand over possession to the respondents forthwith.

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    Comments

    Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker And Others
    (Apr 25, 1988)