Bombay High Court
Amit Abhaykumar Mutha vs Zawar Tractors And Others on 29 February, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2091 OF 2013
Amit Abhaykumar Mutha,
Age-30 years, Occu-Business,
R/o Shivaji Road, Shrirampur,
Tq. Shrirampur, Dist.Ahmednagar PETITIONER
VERSUS
1. Zawar Tractors,
Proprietor Ramnarayan Raghunath Zawar,
Deceased, through LR'sig
1A. Vithal S/o Ramnarayan Zawar,
Age-53 years, Occu-Business,
1B. Sameer S/o Ajitkumar Zawar,
Age-30 years, Occu-Business,
1C. Gopal S/o Ajitkumar Zawar,
Age-33 years, Occu-Business,
1D. Gauri d/o Ajitkumar Zawar,
Age-26 years, Occu-Education,
1E. Damayanti w/o Ajitkumar Zawar,
Age-58 years, Occu-Household,
All R/o Geeta Bhavan, Shivaji Road,
Shrirampur, Dist.Ahmednagar,
2. Praveen S/o Kanayalal Boob,
Age-40 years, Occu-Business,
3. Shirish S/o Kanayalal Boob,
Age-38 years, Occu-Business,
Both R/o C/o Quality Hardware,
Paint and Machine Tools Center,
Borawake Building, Shivaji Road,
Shrirampur, Dist. Ahmednagar RESPONDENTS
khs/Feb.2016/2091-d
Mr.V.S.Bedre, Advocate for the petitioner.
Mr.K.N.Lokhande, Advocate for respondent Nos. 2 and 3.
Respondent Nos. 1B and 1C - served.
Petition is dismissed against respondent Nos. 1-A, 1-D and 1-E.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 29/02/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. This Court, by order dated 14/03/2013, had granted interim
relief to the petitioner in terms of prayer clause "C" which reads as
under :-
"Pending hearing and final disposal of this Writ Petition, the
further proceedings on the file of the Civil Judge Junior Division,
Shrirampur in RCS No.115/2005 may kindly be stayed in the
interest of justice."
3. Mr.Bedre, learned Advocate for the petitioner submits that this
petition is filed for challenging the order of the Trial Court dated
05/02/2013 in RCS No.115/2005. He submits that a particular
question was asked by the petitioner/plaintiff to the defendant. The
question was with regard to whether the defendant Praveen Kanayalal
khs/Feb.2016/2091-d
Boob had in his possession a shop by name Quality Hardware Center
with 60 tin sheets. The question was opposed by the defendants on
the ground that no reference to the said property was made in the
plaint.
4. Mr.Bedre submits that the suit preferred by the petitioner is for
eviction. It was in that connection that the question was put to
defendant No.2 considering that he had in his possession an
alternate property. The objection raised before the Trial Court was
upheld by the Court vide the impugned order dated 05/02/2013.
5. He, therefore, submits that no loss or harm would have been
caused to the defendant if the said question was allowed and
defendant No.2 offered his reply since the defendants could address
the Court at the final stage as to whether the said question and the
answer was relevant for deciding the case or not. He submits that if
eventually at the final stage, the Trial Court comes to a conclusion
that the said question was necessary for deciding the suit, it would
cause an irreparable harm to the petitioner since the question has
been rejected. He relies upon Order 6 Rule 2 of The CPC in support
of his contention.
khs/Feb.2016/2091-d
6. Mr.Lokhande, learned Advocate for the respondents has
strenuously supported the order of the Trial Court. He relies on
Order 18 Rule 11 to contend that when the Trial Court realized that
there was no reference to the Quality Hardware Center in the plaint,
the question was irrelevant and hence was rightly rejected. Such an
interlocutory order should not be interfered with by this Court.
Mr.Lokhande further submits that this petition be dismissed with
costs especially in the light of the fact that the suit has been stayed
at the behest of the petitioner.
7. I have considered the submissions of the learned Advocates.
8. The suit has been preferred for eviction. The petitioner has
pleaded in the plaint that the defendants have an alternate property
available for conducting their business. Merely because the name of
the shop "Quality Hardware Center" was not mentioned in the plaint,
would not mean that the petitioner is precluded from pointing out a
particular property, the existence of which has been pleaded in the
plaint.
9. I am of the view that the litigating sides can address the Trial
Court at the final stage with regard to the said question and the
khs/Feb.2016/2091-d
answer offered by the defendant as to whether the same would be
relevant and significant for the Court while deciding the suit. By
disallowing the said question, the petitioner is virtually precluded
from pinpointing a property in the possession of the defendants
which could be said to be an alternate property available for running
its business.
10.
As such, considering the rival hardships and the balance of
convenience, I find that the rejection of the said question by the Trial
Court deserves to be set aside.
11. The petition is, therefore, allowed. The impugned order of the
Trial Court dated 05/02/2013 is set aside. The question posed by the
petitioner as recorded in the order shall be posed to defendant No.2
for offering an answer.
12. Needless to state, the defendants are at liberty to address the
mind of the Trial Court at the final stage in the suit while advancing
oral argument with regard to their contention that the said question
and the answer is irrelevant and deserves to be discarded. The Trial
Court shall consider the same on its own merits and shall decide the
suit without being influenced by its observations in the order dated
khs/Feb.2016/2091-d
05/02/2013.
13. Rule is made absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
khs/Feb.2016/2091-d
