1 wp74.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.74/2016
Anil S/o Shrikumar Ahale,
aged about 52 Yrs., Occu. Business,
R/o Old Mahavir Ward, Pusad,
Tq. Pusad, Distt. Yavatmal. ..Petitioner.
..Vs..
1. Kishor Gokuldas Aditya,
aged about 47 Yrs.,
Occu. Business.
2. Sanjay Gokuldas Aditya,
aged about 42 Yrs.,
Occu. Business.
3. Kirti Gokuldas Aditya,
aged about 40 Yrs.,
Occu. Business.
All R/o Old Devi Ward,
Pusad, Tq. Pusad,
Distt. Yavatmal. ..Respondents.
AND WRIT PETITION NO.335/2016
Ashok Bacchumal Gangwani,
aged about 47 Yrs., Occu. Business,
R/o Old Devi Ward, Pusad,
Tq. Pusad, Distt. Yavatmal. ..Petitioner.
..Vs..
1. Kishor Gokuldas Aditya,
aged about 47 Yrs.,
Occu. Business.
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2. Sanjay Gokuldas Aditya,
aged about 42 Yrs.,
Occu. Business.
3. Kirti Gokuldas Aditya,
aged about 40 Yrs.,
Occu. Business.
All R/o Old Devi Ward,
Pusad, Tq. Pusad,
Distt. Yavatmal. ..Respondents.
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Shri Anjan De, Advocate for the petitioner.
Shri C.S. Kaptan, Senior Advocate with Shri K.S. Narwade, Advocate for respondent Nos.1
to 3. (..In both petitions)
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CORAM : Z.A.HAQ, J.
DATE : 28.2.2017. ORAL JUDGMENT
1. Common questions arise in these petitions therefore, they are disposed by common judgment.
2. The respondents in these two petitions (landlords) obtained decree for eviction against the petitioners (tenants) in both these petitions on the ground that the suit premises are required by the landlords for their bona fide occupation. The judgment and decree passed by the trial Court in both the cases were challenged in appeals before the District Court. During the pendency of the appeals before the District Court, the tenants filed applications under Order 41 Rule 27 of the Code of Civil Procedure in both the cases contending that after the decree came to be passed by the trial Court, the ::: Uploaded on - 17/03/2017 ::: Downloaded on - 27/08/2017 18:20:48 ::: 3 wp74.16 landlords have purchased a property on 15th April, 2014. The District Court had passed an order that the applications under Order 41 Rule 27 of the Code of Civil Procedure filed in both the cases would be considered at the time of hearing the appeal on merits. It is undisputed that while deciding the appeal the learned District Judge has not adverted to the applications filed by the tenants under Order 41 Rule 27 of the Code of Civil Procedure.
Shri C.S. Kaptan, learned Senior Advocate has submitted that the applications as filed by the tenants under Order 41 Rule 27 of the Code of Civil Procedure cannot be entertained. In my view, it would not be appropriate for this Court to consider this aspect as the applications filed by the tenants under Order 41 Rule 27 of the Code of Civil Procedure should have been considered by the District Court while hearing the appeals filed by the tenants. I am of the view that the District Court has failed to exercise its jurisdiction by not considering the applications filed by the tenants under Order 41 Rule 27 of the Code of Civil Procedure. Hence, the judgment and decree passed by the District Court in both the cases are not sustainable.
Hence, the following order:
(i) The impugned judgment and decree in both the cases are set aside.
(ii) The matters are remitted to the District Judge-II, Pusad, Distt. Yavatmal for deciding the appeals afresh.
(iii) In the facts of the case, it is directed that the appeals shall be disposed till 5th May, 2017.
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4 wp74.16 (iv) The petitioners in both the cases and the respondents shall appear
before the District Judge-II, Pusad, Distt. Yavatmal on 10th April, 2017 at 11.00 a.m. and abide by the further orders / instructions in the matter.
The petitions are allowed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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