Bombay High Court
Kanhaiyalal S/O. Natwarlal ... vs Union Of India, Through General ... on 27 June, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.205 OF 2016
Kanhaiyalal s/o Natwarlal Wakhariya,
Aged about 54 years,
Occ: Business, R/o Saibaba Ward,
Ballarpur, Tah. Ballarpur,
District Chandrapur. ....... APPELLANT
(ORI. PLAINTIFF)
...V E R S U S...
1]
Union of India, through
General Manager, Central Railway,
CST, Mumbai.
2] The Divisional Railway Manager
(Works), Central Railway, Nagpur.
3] The Inspector of Works,
Central Railway, Ballarsha,
Tah. Ballarpur, District Chandrapur. ....... RESPONDENTS
(ORI. DEFENDANTS)
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Shri M.P. Khajanchi, Advocate for Appellant.
Shri N.P. Lambat, Advocate for Respondent No.1.
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CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 27
ORAL JUDGMENT
1] The trial Court dismissed Regular Civil Suit No.29 of 1995
for grant of declaration and permanent injunction restraining the
defendants from disturbing the possession of the plaintiff over the suit
property. The finding is recorded by the trial Court that the licence in
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respect of open land, and therefore, was not governed by the provisions
of C.P. Berar Letting of Premises and Rent Control Order. The lower
Appellate Court has not considered these findings and the only point is
considered whether the order passed by the respondent about
cancellation of lease in respect of the suit property is null and void.
2] By consent of the learned counsels appearing for the parties.
The following substantial question of law is framed:
Whether the judgment and order passed by the lower
Appellate Court is in ignorance of the findings recorded
by the trial Court on the relevant aspects of the matter?
3] The learned counsel appearing for the parties submit that
apparently the question as to whether the provisions of Rent Control
Order are applicable or not and whether the lease licence was in respect
of the open land or shop block have not been considered. The lower
Appellate Court has also failed to consider the findings recorded by the
trial Court on all other aspects of the matter. The judgment and order
impugned in this second appeal, therefore, suffers from non-application
of mind to the relevant aspects and the same cannot therefore, be
sustained. It will have to be quashed and set aside with an order of
remand.
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4] In the result, the second appeal is allowed. The judgment
and order dated 18.12.2015 passed in Regular Civil Appeal No.174 of
2007, is hereby quashed and set aside. The matter is remitted back to the
lower Appellate Court to decide the appeal afresh in accordance with
law, keeping in view the observations made by this Court. The parties to
appear before the lower Appellate Court on 25.07.2016. No fresh notices
shall be issued. Record and proceedings, if it is received, be sent back
immediately. No costs.
JUDGE
NSN
