Bombay High Court
Shri. Suresh S/O Vithalrao ... vs Bhavik S/O Nathuji Ramteke on 29 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4554 OF 2009
PETITIONER: 1. Shri Suresh S/o Vithalrao Meshram,
Aged 58 years, Occ: Service,
2. Sau. Chabibai W/o Suresh Meshram,
Aged 52 years, occ: Household,
Both R/o 560-A, Hiwri Nagar,
Wathoda Road, Nagpur.
-VERSUS-
RESPONDENT: Bhavik S/o Nathuji Ramteke, Aged 35
ig years, Occ: Business, R/o Gajanan
Kale House, Hiwri Nagar, Wathoda
Road, Nagpur and also Shop at 560-
A, Hiwri Nagar, Nagpur.
Shri C. N. Funde, Advocate for the petitioner.
Shri A. J. Khan, Advocate for the respondent.
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CORAM: A.S. CHANDURKAR, J.
DATED: 29
th JULY, 2016.
ORAL JUDGMENT :
1. This writ petition has been filed by the original
plaintiffs who had filed suit for recovery of possession of a shop
block that was occupied by the respondent. The eviction of the
respondent who was a tenant in the suit property was sought on
the ground that he was in arrears of rent and that the plaintiffs
had bonafide need of the suit premises. The trial Court by
judgment dated 11-9-2007 held that the defendant was in arrears
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of rent from 1-7-2003 to 31-8-2004. It further held that the
bonafide need of the plaintiffs had been made out. By judgment
dated 11-9-2007 the trial Court decreed the suit.
2. The respondent challenged the aforesaid decree by
filing an appeal. During pendency of the appeal, the respondent
filed an application under provisions of Order XLI Rule 27 of the
Code of Civil Procedure, 1908 (for short, the Code) for placing on
record certain documents, according to which, the plaintiffs did
not have title to the suit property. Another application was filed
under provisions of Order XLI Rule 23 of the Code for remanding
the matter to the trial Court for deciding the aspect of
maintainability of the suit and the locus of the plaintiffs. According
to the defendant, Special Civil Suit No.885/2008 had been filed by
the plaintiff no.2 for cancellation of the relinquishment deed dated
25-7-2005 and the same was pending.
The appellate Court by its judgment dated 23-3-2009
allowed appeal by holding that in view of the relinquishment deed
dated 25-7-2005, the plaintiffs did not have title to the suit
property. It further held that the bonafide need of the plaintiffs
had not been made out. On this ground the decree passed by the
trial Court came to be set aside.
3. Shri C. N. Funde, the learned Counsel for the
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petitioners submitted that the appellate Court was not justified in
relying upon the relinquishment deed dated 25-7-2005 while
holding against the plaintiffs. It was submitted that the suit for
cancellation of the relinquishment deed has been filed. Though
the said suit was dismissed on 16-8-2011, an appeal had been
filed. In the meanwhile, the sale deed came to be executed by the
brother of the plaintiff no.2 on 7-10-2008 in respect of 1/3rd
share of the suit property. He, therefore, submitted that the
ownership of the plaintiffs stood established and the basis on
which the appellate Court proceeded to allow the appeal did not
survive.
4. Shri A. J. Khan, the learned Counsel for the respondent
supported the order of the appellate Court. According to him, the
respondent had filed an application under provisions of Order XLI
Rule 23 of the Code for remand of the proceedings to the trial
Court to decide the aspect of locus. He submitted that the suit for
declaration filed by the petitioner no.2 had been dismissed, but he
did not counter the statements made in the reply filed on behalf of
the petitioners on 7-1-2013 to the effect that the sale deed dated
7-10-2008 was executed in respect of the suit property.
5. Having heard the respective Counsel, I find that the
appellate Court laid much emphasis on the deed of relinquishment
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dated 25-2-2005. The subsequent events of a suit being filed
seeking cancellation of its registration, its subsequent dismissal
and execution of the sale deed of part of the suit property are
factors which are found relevant and which require fresh
adjudication. In this backdrop, both the learned Counsel consented
to the remand of the proceedings to the trial Court for fresh
adjudication of the suit in accordance with law. In view of this
stand, the following order is passed:
ig The judgment dated 23-3-2009 passed in R.C.A.
No.539/2007 is quashed and set aside.
(2) The proceedings in R.C.S. no.37/2005 are restored.
The suit shall be decided afresh and in accordance with law. The
parties are at liberty to amend their pleadings if they so desire.
They are also at liberty to lead fresh evidence if found necessary.
The suit shall be decided expeditiously and by the end of April,
2017.
(3) The respective contentions of the parties on merits are
kept open.
(4) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE
//MULEY//
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