Bombay High Court
Shri. Ashok Mahipati Dalavi vs Aarya Kshatriya Samaj, Kolhapur ... on 13 June, 2023
Bench: Madhav J. Jamdar
2023:BHC-AS:15863
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7050 OF 2023
Shri. Ashok Mahipati Dalavi ...Petitioner
Versus
Aarya Kshatriya Samaj, Kolhapur
through Trustees ...Respondent
Mr. Sandeep Koregave, for the Petitioner.
CORAM : MADHAV J. JAMDAR, J.
DATED : 13th JUNE 2023
P.C. :
1. Heard Mr. Sandeep Koregave, learned counsel appearing for the
Petitioner.
2. By the present Writ Petition filed under Article 227 of the
Constitution of India, the Petitioner is challenging the legality of
common order dated 3rd December 2022 passed by the learned 2 nd
Joint Civil Judge, Senior Division, Kolhapur in Regular Darkhast No.
55 of 2014 below Exhibits 1, 124, 129, 136 and 138. By the impugned
order, the said applications below Exhibits 124, 129 and 138 were
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rejected.
3. The application at Exhibit-136 was filed by one Advocate
Motikumar Madhavrao Budhale, who was the trustee. In said Exhibit
136 application, inter alia it was the contention of said Advocate
Budhale that, as there was no change report when the suit was filed
showing his name as trustee, the suit could not have been filed.
However, said application at Exhibit 136 was dismissed and the said
Advocate Budhale has not challenged the said order.
4. As far as the impugned order regarding rejection of Exhibits 124,
129 and 138 is concerned, it is the contention of Mr. Koregave, learned
counsel appearing for the Petitioner that the trustees who filed the suit
were not entitled to represent the trust. He further submitted that the
Respondents i.e. decree holders/landlords have given concession to
other tenants in payment of rent, however, the said concession was not
given to the present Petitioner.
5. A perusal of the Judgment and Decree passed by the learned 3 rd
Joint Civil Judge, Senior Division, Kolhapur in Regular Civil Suit No.
4 of 1998 which has been filed by the trust through its trustees, shows
that the suit was filed under the provisions of the Bombay Rents, Hotel
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and Lodging House Rates Control Act, 1947 (hereinafter referred to as
"the said Act") for eviction on the ground of arrears of rent. The said
suit was decreed by Judgment and Decree dated 13 th August 2008. It
further appears that the issue whether the Respondents i.e. Plaintiffs-
trust proved that it is entitled to take possession from the Defendant
has been specifically framed by the Trial Court and the same was
answered in favour of the Defendant. Mr. Koregave, learned counsel
appearing for the Petitioner fairly pointed out that the said Judgment
and Decree of the learned Trial Court was confirmed by the Appeal
Court, High Court and ultimately by the Supreme Court. In any case,
these contentions can't be raised in the Execution Petition and these
contentions are specifically raised and rejected by the learned Trial
Court, which decree has attained finality and has confirmed upto the
Supreme Court.
6. As far as the contention regarding the concession in rent given to
other tenants and the same was not given to the Petitioner is also
outside the scope of Darkhast proceedings. The contentions sought to
be raised by the Petitioner in the Darkhast proceedings were available
to the Petitioner for raising it during the trial. It appears that certain
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contentions were raised which are similar in nature to the contentions
raised by the Petitioner in trial and same were rejected.
7. Therefore, there is no substance in the Writ Petition. The Writ
Petition is dismissed, however with no order as to costs.
[MADHAV J. JAMDAR, J.]
