Shri. Mahadu Natha Warke Decd Thru ... vs Shri. Krishna Ganu Powar Decd Thru ...
2021 Latest Caselaw 883 Bom

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BDP-SPS




                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Bharat
 D.
 Pandit
Digitally signed
by Bharat D.
Pandit
Date: 2021.01.16
                                      CIVIL APPELLATE JURISDICTION
                                   WRIT PETITION (ST) NO. 3816 OF 2020
14:56:16 +0530




                   1. Shri Mahadu Natha Warke
                      Through his legal representatives
                   1A] Shri Chandrakant Mahadu @ Mahadeo
                   Warke and Others                              ..... Petitioner(s)

                                V/s

                   Shri Krishna Ganu Powar
                   (Legal Representatives)
                   1A] Shri Rajaram Krishna Powar
                   (Legal representatives)
                   i] Smt. Shevanta Rajaram Powar
                   and Others                                   ..... Respondent(s).
                   ----
                   Mr. Sugandh B. Deshmukh for the Petitioners.
                   ----

                                      CORAM: NITIN W. SAMBRE, J.

                                      DATE:    JANUARY 14, 2021

                   P.C.:-

                   1]       Heard



                   2]       Regular Civil Suit No.25 of 1985 was initiated by the

Petitioners/Plaintiffs for possession, fixed compensation for the years

1974 to 1977 @ Rs 300/- and for inquiry in mesne profit provided

under Order XX Rule 12 of the Civil Procedure Code.

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3] It appears that the issues which were raised in the suit are

clashed with jurisdictional provisions of the Bombay Tenancy and

Agricultural Lands Act, 1948 (For short B.T. & A.L. Act). As such,

issue Nos. 4 and 13 framed below Exhibit-19 were referred to the

Tenancy Court for recording appropriate findings.

4] I am informed that the findings recorded by the Tenancy Court

are questioned in this Court in Writ Petition by this Petitioner, which is

pending adjudication. During the aforesaid period, application-

Exhibit-184 came to be moved by the Petitioners/Plaintiffs praying

therein that the reference made to the Tenancy Court be recalled. The

said application came to be rejected by the order impugned dated

04/01/2020 with findings that there are no powers with the Civil

Court to recall the order passed of making reference under Section

85-A of B.T. & A.L. Act

5] Mr Deshmukh, learned Counsel for the Petitioners invites my

attention to the suit property which consists of Survey No.59/1-B

whereas, according to him, Tenancy Court has recorded finding in

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regard to complete Survey No.59 and as such has exceeded its

jurisdiction. He would invite my attention to the issues framed and

the order of reference passed by the Civil Court so as to claim that

Tenancy Court has recorded findings contrary to the term of reference

and that being so, reference needs to be recalled. As such, according

to him, law laid down by this Court in the matter of Satvashil and

others vs. Rukmini D. Ghat reported in 1979 Bom.C.R. 75 is misread.

As such, it is claimed that the case for interference under extraordinary

jurisdiction of this Court is made out.

6] Admittedly, separate Petition questioning the findings recorded

by the Tenancy Court is already pending adjudication before this

Court. Even though subject matter of the Suit is Survey No.59/1-B and

even if Tenancy Court has recorded its findings on complete Survey

No.59, this court cannot be oblivious to Issue Nos. 4 and 13 framed

at Exhibit-19 which are pertaining only to the suit property. Not only

this, Civil Court while making an order of reference under Section

85-A of the B.T. & A.L. Act has in categorical terms made reference to

the suit property. As such it was bounden duty of the

Petitioner/Plaintiff to bring the said fact to the notice of Tenancy

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Court. Rather from the conduct of the Petitioner it appears that he has

invited findings of Tenancy Court for entire Survey No.59, and since

same are against, Petitioner has sought to recall the reference after it

was decided.

7] In the aforesaid backdrop, recall as is sought by the Petitioners

by virtue of Exhibit-184 is completely without any basis particularly

when findings recorded by the Tenancy Court are also subjudice in

independent Writ Petition at the behest of the Petitioners before this

Court. This Court is also required to be sensitive to the findings

recorded in para 5 of the judgment in the matter of Satvashil cited

supra. Para 5 of the said judgment reads thus:-

"5. Mr. Pradhan the learned Advocate for the petitioners- defendants, next contended that the Civil Court has no power to recall a reference once made and, in the present case, the reference having been made to the Tenancy Court, the order recalling the same was without jurisdiction. I am afraid, I am unable to accept this contention. In the first place, there is nothing in the Tenancy Act which prevents a Civil Court from recalling a reference which it has itself made to the Tenancy Court. The grounds for recalling may or may not be justified and may appropriately be open to a challenge. But it would not be right to hold that the Civil Court has no power at all to recall a reference once made. This is a position different from the Tenancy Court itself refusing to answer a reference. It may not be open to the tenancy authorities to refuse to answer a

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reference or to suo motu send back the reference unanswered to the Civil Court. Under the provisions of sub-section (2) of section 85-A of the Tenancy Act, on receipt of such reference from the Civil Court, the Competent Authority is bound to deal with and decide the issue and issues referred in accordance with the provisions of the Tenancy Act and is bound to communicate its decision to the Civil Court in that behalf. This however, is altogether different from the Civil Court itself recalling the reference earlier made. One can well visualize the entire suit being settled between the parties after an order of reference is made in which case the Civil Court is not powerless from calling back the reference in the circumstances aforesaid. One can also visualize a case where a suit in which reference is made is itself withdrawn by the plaintiff in which event also it cannot be said that the Civil Court is nevertheless still powerless to recall the reference earlier made. One can also well visualize a case as of the present nature where a totally erroneous and irrelevant issue is framed may be through mistake or inadvertence or may by through an erroneous view of the partition involved. In such a case, it is not at all possible to hold that even though the mistake is realised and the lapse detected, the Civil Court and/or even the parties to the suit must be compelled to await decision in the reference earlier made. In these circumstances, I hold that a Civil Court is empowered to a reference earlier made. Of course, the actual order of recalling the reference may be open to challenge on its own merits, but the power itself cannot be denied."

8] In the aforesaid backdrop, once it is noticed that in reference

order of Civil Court made under Section 85-A of B.T. & A.L. Act no

error could be noticed and if Tenancy Court committed any error as

alleged, the Petitioner has already questioned the order of Tenancy

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Court before the competent forum.

9] In that view of the matter, no case for causing any interference is

made out. Petition fails and same stands dismissed. However, it is

made clear that copy of this order be produced during hearing of the

Petition which is pending adjudication wherein order of Tenancy

Court is questioned.

( NITIN W. SAMBRE, J. )