Ashok Bacchumal Gangwani vs Kishor Gokuldas Adtiya And Others
2017 Latest Caselaw 162 Bom

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                    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

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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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(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.