Bombay High Court
Krishnakumar S/O Mukundlal ... vs Shri Kishore S/O Mohanlal Khodiar ... on 8 February, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.802/2020
Krishnakumar s/o Mukundlal Panpalia,
Proprietor, Shri Medicos and General
Stores, r/o H.No.7, Ward No.8, Prabhag
No.78, Joharipura, Tilak Road, Mahal,
Nagpur. .....PETITIONER
...V E R S U S...
1. Shri Kishore s/o Mohanlal Khodiar,
ageda bout 50 years, Occ. Busienss,
r/o Plot NO. 23, Shastri Nagar,
Nagpur.
2. Shri Bharatbhushan s/o Nathuramji
Budhraja, aged 60 years, Occ. Business,
r/o Zenda Chowk, Mahal, Nagpur. ...RESPONDENTS
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Mr. Fidvi Ibrahim Abid, Advocate for petitioner.
Mr. A. S. Murty, Advocate for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 08.02.2021.
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties. Heard Mr. Fidvi
Ibrahim Abid, learned counsel for petitioner and Mr. A. S. Murty,
learned counsel for respondents.
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2. The petitioner has approached this Court challenging
the order passed by learned District Judge-3, Nagpur dated
04.12.2019 below Exh.-39 in Regular Civil Appeal No. 49/2013
whereby learned appellate Court rejected the application filed by
petitioner seeking permission to cross-examine original plaintiff.
3. Few facts would be necessary to be narrated here. They
are as under.
The petitioner is tenant in shop block area 8 X 15 i.e.
120 Sq.Ft. on house property bearing Municipal Corporation
house No. 7/0+5, survey no. 177, sheet no. 224, circle no.2,
Division No.1, Ward No. 8, situated at Joharipura, Tilak Road,
Mahal, Nagpur. The petitioner is a monthly tenant. His tenancy
commences on the first day of English calendar month and ends
on the last day of that month. The petitioner is tenant from 1982.
4. By virtue of sale deed dated 18.10.2004, the present
respondents acquired the title of the property where the suit shop
is situated. Thereafter, the tenancy of the petitioner was attorned.
On 16.10.2009, the present respondents filed suit for
ejectment, possession and mesne profit under Section 16 (1) (g)
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of the Maharashtra Rent control Act, 1999, which was registered
as Regular Civil Suit No.334/2009. The suit was contested. The
parties entered into witness box to substantiate their pleadings.
The learned Additional Judge, Small Causes Court, Nagpur, vide
judgment dated 14.12.2012 was pleased to decree the suit filed on
behalf of respondents and ordered eviction of the petitioner from
the suit shop block.
5. Being aggrieved thereby, the petitioner filed appeal
under Section 34 of the Maharashtra Rent Control Act, 1999. The
appeal was registered as Regular Civil Appeal No.41/2013.
During pendency of the appeal, the petitioner moved
an application under Order XLI Rule 27 of the Code of Civil
Procedure for production of document. The said application was
moved on 09.10.2015. The documents were pertaining to the
Bombay Shop and Establishment Certificate and From No. 20 and
21 i.e. license to sell, stock or exhibit for sale or distribute drugs.
The said application filed on behalf of the petitioner was allowed
by the learned Judge, appellate Court on 09.12.2016 in view of no
objection given by the respondent/original plaintiff.
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Thereafter, the petitioner filed an application (Exh.-21)
for amendment of the written statement under Order VI Rule 17
of the Code. The application for amendment of the written
statement was allowed on 22.07.2016. Accordingly, following
paragraphs were prayed to be inserted in the written statement.
"10. It is respectfully submitted that all
allegations of plaintiffs that suit premises are bonafide
required by them to start business therein, are false
and concocted to the knowledge of plaintiff
themselves.
11. I sit submitted that plaintiff No.1 is having
his own big residential cum commercial house at
Shastri Nagar, Near Wardhaman Nagar, Nagpur
constructed on plot No.23.
12. It is further submitted that plaintiff No.2 is
also having big residential cum commercial house at
Zenda Chowk, Naik road, Nagpur. So also he has
started his business of selling Pan material, cigarette,
etc. under the name and style of 'Shree Narayanji
Agency" at Bharat Chambers, House No.497, Ward
No.36, Nehru Putla, Itwari, Nagpur. The said house is
three storied building admeasuring about 900 sq.ft.
plot area owned and possessed by plaintiff No.2.
Plaintiff No.2 has also purchased a huge bungalow at
East Wardhman Nagar, Nagpur. Thus plaintiff No.2 is
having more than sufficient accommodation for his
alleged need.
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13. In view of above, it may be seen that
plaintiffs have acquired vast accommodations and that
plaintiffs will not suffer any hardship at all, in the
event their claim in suit is rejected.
14. That, admittedly defendant is carrying on
his business in suit premises and at no point of time
he had kept the suit premises locked and unused.
15. Thus under these circumstances, suit of
plaintiffs is liable to be dismissed and it be dismissed
with costs."
6. After incorporation of amendment in the written
statement, petitioner moved an application Exh.-30, seeking
permission to cross-examine the plaintiff and to adduce his
evidence. Vide order dated 02.07.2018, the application was
rejected by the learned District Judge primarily for following
reasons:
"On perusal of present application, it appears that
appellant has not mentioned on which point he wants
to cross-examine respondents, neither he has
mentioned which fact he wants to prove, for which
oral evidence is necessary."
Thereafter, petitioner again moved fresh application on
23.08.2018 (Exh.-39) seeking the relief, which was claimed in
Exh.-30. Application was rejected, hence this writ petition.
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7. Learned counsel for the petitioner would submit that
once the application for amendment of the written statement was
allowed and permission to file document was granted, the learned
Judge of the appellate Court ought not to have rejected the
application since according to him it will nothing but denial of
opportunity to point out his case.
8. Per contra, learned counsel for petitioner would submit
that these applications are nothing but prolong the litigation. He
submits that the appeal is pending from 2013, still the appeal is
awaiting verdict from the appellate Court. Hence, he prays for
dismissal of the writ petition.
9. Prior to amendment of the written statement, it was
pleaded by the petitioner that plaintiffs are very rich persons and
they are having various properties in the city of Nagpur. Before
the learned Judge, during the cross-examination the plaintiff gave
following replies from the witness box:
"It is true that in Shastri Nagar, I have big house. That
is on Vaishno Devi Chowk, Mahal, Nagpur. Plaintiff
No.2 Bharat Bhushan is having businss in the name of
Karan Agencies which situated at Itwari, Nehru Putla,
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Nagpur. My sop is at Mahal, Nagpur having suiness of
Pan Masala Traders by name and style K. K. Traders.
We both brothers having independent business. Our
residential as well as business place are different..."
10. It would be important to note herein that the
respondent did not challenge the order passed by learned Judge of
the appellate Court on 09.12.2016 and 22.07.2016 whereby the
appellate Court allowed the application filed on behalf of the
petitioner for production of documents and for amendment of the
written statement. By not questioning legality of order granting
permission to amend the written statement, the said order has
attained finality.
11. I have already reproduced supra, the amendment that
was permitted to be carried out in the written statement. That
pertains to the denial of the claim of the plaintiffs that they require
shop in question for their use. Also, by the written statement, it
was brought on record about alternate accommodation available
to the plaintiffs.
12. The suit was filed primarily for getting decree on the
ground of bona fide requirement, though, other ground is also
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mentioned in the plaint. While considering the bona fide need,
the Courts have to examine comparative hardship. If that be so,
once the amendment was allowed to be brought in the written
statement the Court will have to decide the aspect of comparative
hardship also. Therefore, in my view, the Court below ought to
have allowed the application seeking cross-examination of the
respondent-plaintiff.
13. The first application (Exh.-30) was rejected because the
Court found that in the application it is not mentioned as to on
what point he wants cross-examination. This application was not
rejected on its own merit, but it was rejected as the application is
vague in nature.
By filing the fresh application Exh.-39 in paragraph 3,
the petitioner has submitted on what point the petitioner wishes
to cross-examine the landlord.
14. In my view, since Court has to decide on considering
comparative hardship opportunity has to be given to petitioner
permitting cross-examination of landlord on the points which are
enumerated in paragraph 3 of application (Exh.-39).
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15. In view of above, the writ petition is allowed. Order
passed by learned District Judge-3, Nagpur dated 04.12.2019
below Exh.-39 is quashed and set aside. The petitioner is
permitted to cross-examine the landlord on the points which are
mentioned in paragraph 3 of the application Exh.-39 only. The
learned District Judge, on whose file Regular Civil Appeal
No.41/2013 is pending, shall record the cross-examination of the
landlord so as to save time of remanding the matter back to the
trial Court. Parties are directed to appear before the appellate
Court on 12.03.2021. On that day, the landlord shall make himself
available for cross-examination and the petitioner shall cross-
examine the landlord on the said day, without fail.
The learned Judge shall decide Regular Civil Appeal
No. 41/2013 as expeditiously as possible and within a period of
three months from 12.03.2021.
Rule accordingly. No order as to costs.
JUDGE
kahale
