Bata (India) Ltd vs M/S. Mahendra Builders And Ors
2017 Latest Caselaw 8091 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.356 OF 2017
                                  WITH
                       WRIT PETITION NO.357 OF 2017
                                  WITH
                       WRIT PETITION NO.358 OF 2017
                                  WITH
                       WRIT PETITION NO.4505 OF 2017

Bata (India) Ltd.                                                                                    ... Petitioner
      Vs
M/s. Mahendra Builders & Ors.                                                                        ... Respondents

                                  ...
Mr. Shyam Dewani a/w Nivedita Kundaj a/w Chirag Chanani i/b. Dewani
& Associates for the Petitioners.
Mr. P. S. Dani, Senior Advocate i/b. Vidya Khatu for the Respondent No.1.

                                                           CORAM : M. S. SONAK, J.

DATE :12th OCTOBER, 2017 ORAL JUDGMENT :

1. Not on board. Upon mentioning taking on production

Board.

2. The learned counsel for the parties agree that common

issues of law and facts arises in all these petitions and therefore,

they may be disposed of by a common order.

3. The learned counsel for the parties agree that the

presence of respondent Nos. 2 and 3 is not essential for disposal of

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the present petitions.

4. Rule in each of the petitions.

5. Rule is made returnable forthwith, with the consent and

at the request of the learned counsel for the parties.

6. Mr. Shyam Dewani, the learned counsel for the petitioner

in each of these petitions submits that the suits which are the subject

matters of these petitions were instituted by M/s. Mahendra

Builders, claiming to be landlords against M/s. Gadiwala, who was

styled as the tenant and the State Bank of India (SBI)which was

styled as a sub-tenant.

7. Mr. Shyam Dewani, further submits that the landlord, on

the alleged basis that the tenant Gadiwala has assigned tenancy

rights in the suit premises to M/s. Adhie Enterprises and further, that

there is some joint venture between said M/s. Adhie Enterprises and

the petitioner i.e. Bata India Ltd., applied for impleadment the

petitioner as party to the eviction proceeding. Mr. Dewani submits

that by the impugned order, petitioner has been ordered to be

impleaded as a party to the eviction proceeding. Mr. Dewani

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submits that the impugned order in excess of jurisdiction because

the petitioner, in terms of the agreement with M/s. Adhie Enterprise,

is only to provide expertise/know how relating to operation to M/s.

Adhie Enterprises. He submits that in the absence of impleadment

of M/s. Adhie Enterprises, or even otherwise, the petitioner, can

neither be regarded as a necessary nor proper party to such

proceeding. He therefore, submits that the impugned order, which is

in excess of jurisdiction is required to be interfered with and set

aside.

8. Mr. P. S. Dani, learned senior Advocate, for the landlord

in each of these petitions submits that the petitioner is actually in

possession of the suit premises and therefore, is a proper party.

Further, because mesne profit are claimed, the petitioner has been

impleaded as a party to the eviction proceeding. Mr. Dani submits

that without prejudice, the landlord, is ready and willing to even

implead M/s. Adhie Enterprises as party to the proceeding, simply to

obviate any contentions now raised by the Petitioners. Mr. Dani

submits that there is absolutely no jurisdictional error in the

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impugned order and therefore, this petitions may be dismissed.

9. In such matters, it is well settled that the plaintiff, is the

dominus litis. According to the plaintiff-landlord it is the petitioner

who is in possession of the suit premises. At this stage, it is not for

the Courts to go into the veracity or otherwise of this position. All

that, will have to await trial. However, it cannot be said that the

petitioner is not even an proper party to the proceeding. There is

neither any unreasonableness or perversity in exercise of discretion

by the Trial Court in ordering the impleadment of the Petitioner.

Accordingly, it cannot be said that the impugned order is vitiated

any jurisdictional error.

10. That apart, the landlord, has now agreed to implead

even M/s. Adhie Enterprises as a party to the proceedings for

eviction. Accordingly, leave is granted to implead M/s. Adhie

Enterprises, Partnership Firm as a party to the eviction proceeding.

The necessary amendment to be carried out within a period of four

weeks from today. The Trial Court to thereafter issue notice to M/s.

Adhie Enterprises and further, grant M/s. Adhie Enterprises

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opportunity of filing written statement.

11. At this stage, there is no question of going into merits of

the matter. However, at the request of Mr. Shyam Dewani, it is

clarified that all contentions of all parties to the eviction proceeding

are specifically kept open for determination by the Trial Court in

accordance with law on their own merits.

12. Since there is no case made out to interfere with the

impugned order, these Writ Petitions are dismissed. However, as

noted earlier, leave is granted for impleadment of M/s. Adhie

Enterprises in the aforesaid terms.

13. All concerned to act on an authenticated copy of this

order.

                                                                                                   (M. S. SONAK, J.)




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