Shrihari Ramchandra Baldawa And ... vs Shamabai Vishwanath Pande And Ors
2022 Latest Caselaw 508 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                        WRIT PETITION NO.8978 OF 2011

 SHRIHARI RAMCHANDRA BALDAWA AND ORS                             ..PETITIONERS

                   VERSUS

 SHAMABAI VISHWANATH PANDE AND ORS                               ..RESPONDENTS
                        ...
 Mr. Rahil Kazi h/f Mr. P. R. Katneshwarkar,
 Advocate for the Petitioners.
 Mr. Amit S. Deshpande, Advocate for Respondent
 Nos.3, 5 to 7.
                                             ...

                                 CORAM : S. V. GANGAPURWALA, J.

                                 DATED : 14th JANUARY, 2022.
 PER COURT:-

 1.                The present petition is filed against the
 order framing the issue of tenancy and referring
 the said issue to the Tenancy Court.


 2.                The petitioners are original plaintiffs.
 According             to      petitioners,            respondents/original
 defendants are in possession on the basis of the
 agreement            to       sale.             The   Suit      is       filed        for
 possession pursuant to the non-performance of the
 promise.


 3.                According           to         petitioners,            there            is
 absolutely             no     semblance          of   evidence         to      suggest
 that, the present respondents/original defendants
 were or are tenants over the Suit property.                                      Unless
 there        is     some      semblance          of   evidence,           the      issue


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 cannot         be     referred           to     the       Tenancy       Court.            The
 learned          counsel            relies       on    the      judgment           of     the
 Division Bench of this Court in case of Pulmati
 Shyamlal             Mishra          and         Another          Vs.        Ramkrishna
 Gangaprasad Bajpai and Others reported in 1981 Mah
 LJ 321 to suggest that, it is the duty of the Court
 to examine the substance of the case and refuse to
 frame and remit any issue if the same appears to be
 demonstrably frivolous and mala fide.


 4.               Mr.          Deshpande,              learned          counsel             for
 original             defendants                contends         that,         there           is
 specific pleading in the written statement about
 the creation of the tenancy and the defendants are
 in possession on the basis of the tenancy.                                                For
 framing          issue          averments            in    the        pleadings           are
 sufficient.                   No error has been committed by the
 Trial Court in framing the issue of tenancy and
 referring the same to the Tenancy Court.                                       Paragraph
 Nos.14          and       15        of     the       written         statement            are
 specific.


 5.               I        have           considered             the        submissions
 canvassed            by       the    learned          counsel       for      respective
 parties.


 6.               Perusal            of         the     order,         it      does        not
 transpire            that,          the        Court      has      considered             any
 document placed by either of the parties on record
 for referring the issue to the Tenancy Court, nor from
 the available record before this Court in the writ


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 petition,            such      document         exists       prima         facie          to
 observe         about         the   tenancy       and       necessitating             the
 Court to refer the issue to the Tenancy Court.                                            In
 the judgment of the Division Bench of this Court in
 case of Pulmati Shyamlal Mishra and Another Vs.
 Ramkrishna Gangaprasad Bajpai and Others (supra) it
 is observed that, the process contemplated under
 order 14 of the Code of Civil Procedure does not
 contemplate any trial of such issue but it does
 involve nipping of any such plea in the bud, if the
 Court, subject to any contrary decision in appeal
 and      revision,            judicially        concludes            against          its
 framing          and      raising.         This        is    implicit           in    the
 separate provision for framing issues and the trial
 thereof.               The     Court      has     duty       to      examine          the
 substance.


 7.               The order does not depict the examination
 of such fact before referring issue to the Tenancy
 Court.


 8.               In the result, I pass the following order:

                                           ORDER

A. The impugned order below Exhibit-25 in RCS No.257/2004 is quashed and set aside.

B. The issue it appears is already framed at Exhibit-21/B Serial No.6. The Court shall examine the substance of defence of the defendants regarding the issue of tenancy and

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if any document is produced thereto, shall examine the same prima facie and if it appears that, the prima facie case exists may thereafter pass appropriate orders afresh with regard to referring the issue to the Tenancy Court or otherwise.

9. Writ Petition accordingly disposed of. No costs.

(S. V. GANGAPURWALA) JUDGE

Devendra/January-2022