Bombay High Court
Radhakishan Baburao Babar vs The District Judge, Jalna on 14 July, 2017
Bench: R.V. Ghuge
WP/2602/1994
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2602 OF 1994
Radhakishan Baburao Babar
Deceased, through L.Rs.
(A) Smt. Mathurabai Radhakishan Babar
Age 60 years, Occ. Nil / Household
R/o Modikhana, Sadar Bazar, Jalna.
(B) Sanjay Radhakishan Babar
Age 42 years, Occ. Service,
R/o As above.
(C) Shyam Radhakishan Babar
Age 32 years, Occ. Service,
R/o As above. ..Petitioners
Versus
1. The District Judge, Jalna
2. Nandkishore Chhanganrao
Khardekar, age 36 years,
Occupation - Agriculture
R/o Modikhana, Sadar Bazar,
Jalna. ..Respondents
...
Advocate for Petitioner : Shri A.S.Deshpande
AGP for Respondents:
Advocate for Respondent 2 : Shri H.M.Karwa
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: July 14, 2017
...
ORAL JUDGMENT :-
1. The deceased petitioner, now appearing through his legal
heirs, has challenged the judgment dated 23.10.1989, delivered
WP/2602/1994
by the Rent Controller, Jalna in Eviction Case No. 84/RC/CR/5,
that was instituted on 9.1.1984. The date of the judgment is
wrongly mentioned in the prayer clause of this petition as
12.12.1989.
2. I have considered the strenuous submissions of the
learned Advocates for the respective sides on 29.6.2017,
13.7.2017 and today. I have perused the record and proceedings
with their assistance.
3. The petitioner was the defendant in the Eviction Case
instituted by the respondent under Section 15 of the Hyderabad
Houses (Rent, Eviction and Lease) Control Act, 1964. It is not in
dispute that the judgment dated 23.10.1989 is delivered ex-parte
as the Court has concluded that the petitioner did not appear in
the matter, despite service. It is specific contention of the
petitioner in this petition and throughout before all the
authorities, that he had never been served with the notice of the
Rent Court.
4. In the impugned judgment, the Court has recorded that
notices were issued on 24.7.1985, 19.8.1985 and 16.12.1985.
The last notice was served on the petitioner on 2.1.1986. I am
WP/2602/1994
not dealing with this issue in this petition since this Court does
not have the jurisdiction to directly entertain a Writ Petition for
challenging the judgment of the Rent Controller. The reason why
this petition cannot be directly entertained as against the
impugned judgment is for the following reasons:-
(a) After the judgment dated 23.10.1989 was
pronounced, the petitioner moved an application in Case
No. RC/84/CR-5 dated 11.12.1989, praying for setting
aside the ex-parte judgment and permitting the petitioner
to contest the proceedings.
(b) By order dated 12.12.1989, the Rent Controller's
Court observed that the notice was served on the
petitioner on 2.1.1986, signatures have been obtained and
hence, the application is rejected.
(c) The petitioner then challenged the order dated
12.12.1989 by filing Rent Appeal No.24 of 1989 on
22.12.1989. Interim protection was granted on 11.6.1981
on the condition of depositing the rent regularly.
(d) On 3.6.1993, Rent Appeal No. 24 of 1989 was
WP/2602/1994
dismissed in default.
(e) The petitioner then filed Misc. Civil Application on
24.2.1984 seeking restoration of the Rent Appeal. The
said case papers were returned to the petitioner by the
Court by making the observation as, " Documents be
returned to the applicant (petitioner) as prayed."
(f) The petitioner then preferred Misc. Application
No.33 of 1994 before the District Court praying for
restoration of the Rent Appeal No.24 of 1989, which was
dismissed in default. After the filing of this proceeding,
the petitioner has filed this Writ Petition in this Court,
challenging only the judgment of the Rent Controller
dated 23.10.1989.
(g) In the meanwhile, by a purshis dated 9.11.1994 at
Exhibit 13, the petitioner withdrew Misc. Civil Application
No.33 of 1994, unconditionally, and by order dated
9.11.1994, the District Court allowed Exhibit 13 and
disposed off the proceedings as withdrawn.
(h) The peculiar situation before this Court is that, on
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the one hand none of the orders i.e. 12.12.1989, 3.6.1993
and 24.2.1994 have been challenged. On the other hand,
the link between the petitioner and this Court being the
Misc. Civil Application No.33 of 1994, filed before the
District Court, Jalna, by which, the 'dismissed in default'
order was sought to be set aside and the Rent Appeal
No.24 of 1989 was sought to be restored, was withdrawn.
This link has been detached by the petitioner himself by
withdrawing MCA No. 33 of 1994 on 9.11.1993. As
such, this Court cannot directly exercise its jurisdiction on
the judgment of the Rent Controller dated 23.9.1989 by
ignoring all the above orders.
5. Shri Deshpande, learned counsel for the petitioner has
strenuously contended that the MCA No.34 of 1994 may have
been withdrawn out of ignorance, on account of the anxiety
suffered by the petitioner, who subsequently passed away and on
being illiterate. He prays that MCA No.34 of 1994 can be
restored and the petitioner can pursue the remedy before the
District Court, Jalna for seeking restoration of the Rent Appeal
No.24 of 1989.
6. Shri Karwa, learned counsel for respondent No.2 /
WP/2602/1994
original landlord opposes the said request.
7. This Court has protected the petitioner by an order dated
12.8.1994 by granting prayer clause (D), which reads as under:-
"(D) Pending hearing and final disposal of this petition,
the execution and operation of the eviction decree passed
by the Rent Controller Jalna in Case No. 84/RC/CR-5,
dated 23.10.1989 may kindly be stayed. "
8. The above said interim relief has protected the deceased
petitioner and consequentially his legal heirs for the past about
23 years.
9. Considering the above, this petition is disposed off by
granting liberty to the legal heirs of the deceased petitioner to
move an appropriate application before the learned District
Judge, Jalna for seeking the recalling of the purshis Exhibit 13,
dated 9.11.1994 and for restoring MCA No.33 of 1994. In the
event, such an application is filed, within four weeks from today,
along with an application for condonation of delay, the learned
District Judge shall deal with the same in accordance with law
and without being influenced by any observations of this Court.
WP/2602/1994
10. Needless to state, the pendency of this petition from
11.8.1994, till it's disposal today, shall be a good ground for
seeking condonation of delay. Consequentially, the interim
protection granted by this Court on 12.8.1994 shall continue to
protect the petitioner for a further period of twelve weeks within
which, the learned District Judge, Jalna would endeavour to
decide and dispose off the application with regard to Exhibit 13.
11. The record and proceedings be returned to the District
Judge, Jalna forthwith.
( RAVINDRA V. GHUGE, J. )
...
akl/d
