Bombay High Court
Shri Hanmu Mhadu Nale, Shri ... vs Shri Vasant Parasharam Killedar, ... on 10 January, 2002
Author: J Chitre
Bench: J Chitre
JUDGMENT
J.G. Chitre, J.
1. Mr. D.S. Sawant submitted that the
applicants be permitted to intervene in the
hearing of this writ petition as interveners in
view of the agreement in their favour made by
Vasant Killedar, the present respondent in the
writ petition. Shri Pandit objected to their
entry in the hearing of this writ petition on the
ground that the respondent had filed a civil suit
against the present petitioners for inducting them
in context of the suit lend and thereafter the
said suit had been withdrawn. He submitted that
the said applicants do not have any locus standi
to intervene in the hearing of this writ petition
and to get themselves included as respondents.
This Court allows this objection and refuses
permission to the applicants in the hearing of
this writ petition. Civil Application No. 380 of
1992 stands so dismissed.
2. Shri Pandit, counsel for the petitioner,
pointed out that the S.D.O. Kolhapur was totally
wrong in holding that the petitioners are not
tenants in his judgment and order in the matter
bearing No. TNC-AP-21/85 (Original No. 27/84)
because he had already held that Aval Karkun.
Karveer had no jurisdiction to proceed ex-parte in
the enquiry in Court Reference No. 2/81 for
holding that the present petitioners are the
tenants of the suit land. He submitted that the
S.D.O. should have held that the petitioners were
the tenants of the suit land. It is his
submission that the said judgment and order passed
by the S.D.O. was illegal and the judgment and
order passed by the Member of the M.R.T.
confirming that also happens to be illegal and
therefore, it needs to be quashed along with the
judgment and order passed by the S.D.O. Kolhapur
by issuing a writ of certiorari in favour of the
petitioners.
3. It is depicted from the records that
before the enquiry was conducted by Awal Karkun,
Karveer in context with Court Reference No. 2/81,
a purshis was passed by which the Awal Karkun was
informed that the suit in which the said reference
was sought was withdrawn by the original
plaintiff. The S.D.O. has held that when that was
so, it was the duty of the Awal Karkun, Karveer,
to make the enquiry with the trial Court whether
the adjudication in context with reference was
necessary or not. However, without doing that, the
Awal Karkun had proceeded to conduct the enquiry
for deciding whether the present petitioners were
tenants of the suit land or not. The S.D.O. has
concluded that the said enquiry was ex-parte and
it was without jurisdiction. In fact the initial
portion of his judgment and order speaks of that.
When that was so, it was not necessary for the
S.D.O. to go for an exercise in deciding whether
the petitioners were tenants of the suit land or
not. He was not required to answer on that point
when he had already adjudicated that the Awal
Karkun had exceeded his jurisdiction in conducting
the said enquiry and giving a finding in it
holding that the present petitioners are the
tenants. When an appellate authority comes to a
conclusion that trial forum passed a verdict
without jurisdiction, it should not normally go
for recording the verdict on merit by itself. In
exceptional cases it can be done but such cases
should be rare and should be justified by
compelling grounds. S.D.O. should have stopped
and should have permitted the parties to go to
Awal Karkun and A.L.T. for getting an adjudication
on that point because it is well settled rule of
prudence that the lowest court or lowest forum
should be permitted to go for adjudication on the
point or on the issue which falls within its
jurisdiction. It is also to be done that way for
avoiding the possibility of a party getting a
finding against it losing a right to challenge it
before the appropriate forum. By doing such
exercise, the S.D.O. Kolhapur had committed an
error of depriving of the present petitioners of
their right to challenge that finding in an
appeal. Thus, by all means, the said finding
which has been recorded by the S.D.O. Kolhapur
declaring that the present petitioners are not
tenants of the suit land stands vitiated and
becomes illegal.
4. This aspect of the matter should have
been noticed by the learned Member of M.R.T.
and it should have afforded an opportunity to
them. But unfortunately, the learned Member did
not do that and, therefore, landed in error in
confirming the judgment and order passed by the
S.D.O. Kolhapur by dismissing the revision
application filed by the present petitioners
summarily.
5. Unfortunately both the S.D.O. Kolhapur
and the Member of M.R.T. had fallen in gross error
of law and, therefore, their judgments have become
illegal as pointed out by this Court in above
mentioned paragraphs. What is not correct and
what is not legal, cannot be permitted to survive
for any period. Therefore, this Court allows
this writ petition, grants a writ of certiorari in
favour of the petitioners and quashes the
judgments and orders passed by the M.R.T. and
S.D.O., Kolhapur. The parties may be at liberty
to contest their claims before the A.L.T. may be
Awal Karkun or Tehsildar having appropriate
jurisdiction to deal with such controversy if it
arises. Thus, this writ petition stands allowed
with costs and rule stands made absolute.
6. Parties to act on authenticated copy of
this judgment duly authenticated by the Private
Secretary of this Court.
