Bombay High Court
Sk. Waseem Sk. Khaja vs Haji Mohammad. Yasin Haji ... on 7 October, 2023
Bench: S. G. Mehare
901-sa-512-2023.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.512 OF 2023
WITH CA/12273/2023 IN SA/512/2023
SK. WASEEM SK. KHAJA
VERSUS
HAJI MOHAMMAD. YASIN HAJI MOHAMMAD. SATTAR,
...
Advocate for Appellant : Mr. H.I. Pathan
...
CORAM : S.G. MEHARE, J.
DATED : OCTOBER 07, 2023
PER COURT:-
1. Heard learned counsel for the appellant.
2. This second appeal is against the order of the learned
District Judge-3, Nanded passed below Exhibit-1 in Civil Misc.
Application No.62 of 2023 dated 03.07.2023. An exparte decree of
eviction was passed against the present appellant by the learned 3 rd
Joint Civil Judge, Junior Division, Nanded in Regular Civil Suit
No.529 of 2016 dated 21.03.2018.
3. Learned counsel for the appellant submits that the suit
summons was not served to the appellant. The suit was filed under the
Maharashtra Rent Control Act, 1999 for the eviction on the ground of
default in paying the rent and arrears of rent. He also submits that
before filing the eviction suit, the mandatory notice under Section
15(1) of the Maharashtra Rent Control Act, 1999 was not served.
901-sa-512-2023.odt
This legal aspect ought to have been considered by the learned trial
Court. The appellant learnt about the exparte decree when he had
received the notice from the executing Court. The delay was not
deliberate. Now the respondents, so-called Trustees of the Kausar
Salfi Welfare Trust are going to execute the decree and the appellant
may lose the possession. He also submits that the suit premises was
the wakf property. Therefore, the Civil Court had no jurisdiction to
enter the suit. This another legal issue has also not been considered.
Therefore, the judgment and decree of the learned 3 rd Joint Civil
Judge, Junior Division, Nanded is without jurisdiction.
4. Learned counsel for the appellant submits that since the
substantial questions of law are involved in the suit, the execution of
the impugned judgment and decree may be stayed. He is ready to
deposit the so-called arrears of licence fee of Rs.49,500/- with the
executing Court.
5. Considering the issue raised by the learned counsel for
the appellant, the following question of law has been formulated :
(a) Whether the appellant has sufficient cause for not
appearing in the suit and the delay caused in preferring the
appeal was plausible?
6. Admit.
7. Issue notice to the respondents in second appeal as well
as civil application, returnable on 31.10.2023.
901-sa-512-2023.odt
8. The execution, implementation, effect and operation of
the impugned judgment and decree passed in Regular Civil Suit
No.529 of 2016 dated 21.03.2018 is stayed till the appearance of the
respondents, on the condition to deposit Rs.49,500/- (forty nine
thousand five hundred) only in execution proceeding within a month
from today.
(S.G. MEHARE, J.)
Mujaheed//
