Full Judgment Text
W.P.2615/1993
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.2615 OF 1993
1. Chindhu Sakharam Palve,
since deceased by his heirs :
1-A. Shantabai w/o Chindhu Palve,
Age 60 years,
1-B. Ashok Chindhu Palve,
Age 45 years,
1-C. Sunil Chindhu Palve,
Age 30 years
1-D. Indubai w/o Mitharam Patil,
Age 40 years, Occu. Household,
Residing at Bodwad, Taluka
Jamner, District Jalgaon
1-E. Usha w/o Vasant Varhade,
Age 38 years, Occu. Household,
Residing at Yevala, Taluka Yevala,
District Nashik
1-F. Rajubai w/o Tanaji Patil,
Age 30 years, Occu. Household,
Residing at Nashik
No.1-A to 1-C residing at
48, Polan Peth, Jalgaon
2. Kashiram s/o Sakharam Palve,
since deceased, by heirs :
2-A Godavari w/o Kashiram Palve,
Age 55 years, Occu. Nil
2-B Baburao Kashiram Palve,
Age 40 years, Occu. Service
2-C. Suresh Kashiram Palve
since deceased by his heirs
and legal representatives :
2C-i. Kalabai Suresh Palve,
Age 42 years, Occu. Household
2C-ii Pravin Suresh Palve,
Age 20 years, Occu. Labour
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2C-iii Sunita Suresh Palve,
Age 21 years, Occu. Household
2C-iv Lata Suresh Palve,
Age 17 years, minor
Occu. Education
2C-v Akash Suresh Palve,
Age 13 years, minor,
Occu. Education
2-D Ramesh Kashiram Palve,
Age 24 years, Occu. Labour
All residing at 48, Polan Peth,
Jalgaon .. Petitioners
(Original defendants)
Versus
1. Satish s/o Soma Bhole,
Age 35 years, Occu. Agri.,
Residing at 197, Bhavani
Peth, Jalgaon
2. Omprakash Sitaram Agarwal,
Aged 40 years, Occu. Business,
Residing at 122, Navi Peth,
Jalgaon
3. Shrikant s/o Sitaram Maniyar,
Age 38 years, Occu.Business,
Residing at Vishnunagar,
Jalgaon
4. Sajjan s/o Ghevarchand Salecha,
since deceased, by his heirs :
4-A Leeladevi Sajjan Salecha,
age 32 years, Occu. Household,
Residing at 55, M.I.D.C., Jalgaon
4-B Abhijit Sajjan Salecha,
Aged 16 years, Occu.Education
minor by his guardian
Smt. Leeladevi Sajjan
4-C Jetidevi Ghewarchand Salecha,
Aged 70 years, Occu.Household,
Residing at 55, M.I.D.C. Jalgaon
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5. Indravandan Shivlal Shah,
Age 38 years, Occu. Trade,
Residinat at Tijorigalli,
Jalgaon
6. ABM Properties Pvt. Ltd., } Added as per Court's
122, Navi Peth, Jalgaon, } order dated 10.12.2015
Through its Director, } passed in this petition.
Omprakash Sitaram Agarwal, }
Age 63 years, Occu. Business, }
R/o 122, Navi Peth, Jalgaon .. Respondents
(Original Plaintiffs)
Mr S.V. Dixit, Advocate for petitioners
Mr A.S. Bajaj, Advocate for respondents 1 to 6
- WITH -
CIVIL APPLICATION NO.2569 OF 2012
IN
WRIT PETITION NO.2615 OF 1993
ABM Properties Pvt.Ltd.,
122, Navi Peth, Jalgaon
through its Director,
Omprakash Sitaram Agarwal,
Age 63 years, Occu. Business
R/o 122, Navi Peth, Jalgaon ..Applicant
Versus
Satish s/o Soma Bhole and ors. ..Respondents
Mr A.S. Bajaj, Advocate for applicant
Mr S.V. Dixit, Advocate for petitioners in Writ Petition
CORAM : N.W. SAMBRE, J.
th
DATE : 10 December 2015
ORAL JUDGMENT
Heard Counsel for respective parties.
2. The present petition is by the tenants who have suffered the
concurrent findings of eviction pursuant to a decree passed by the
th
learned Civil Judge, Senior Division, Jalgaon on 24 September 1984 in
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Regular Civil Suit No.75 of 1980, directing the petitioners to handover
the vacant possession of suit premises to the respondents and to pay
arrears of rent of Rs.195/-.
3. It was also ordered by the learned Court to pay mesne profit at
the same rate from the date of termination of tenancy till handing
over the vacant possession.
th th
4. Learned 4 Additional District Jalgaon, vide order dated 15
February 1993, dismissed the appeal preferred by the petitioners
bearing Civil Appeal No.74 of 1985, as such present petition.
5. Mr Dixit, learned Counsel for the petitioners, while trying to
assail the judgment and decree of Court below and the lower
appellate Court would urge that the petition of the petitioners –
tenants is liable to be allowed on the ground that all the legal
representatives of petitioners-tenants, particularly daughters were not
added as party-defendants to the suit and as such, the suit was bad
for non-joinder of necessary parties and stood abated and should have
been declared as dismissed on that count.
6. The second limb of submission of Mr Dixit is that the petitioners
have already paid the amount of arrears towards the rent by money
order. According to him, once the money order was sent, there is
hardly anything in the control of the present petitioners to ensure the
service of such money order on the respondents-landlords. By relying
upon the judgment of Allahabad High Court in the matter of Bhkha
Lal and ors., V. Munna Lal, reported in AIR 1974 ALLAHABAD
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366, he would submit that sending of money order within one month
from the date of receipt of notice is sufficient to infer the intention of
the present petitioners-tenants not to commit any default in the
payment of arrears of rent.
7. The next submission of learned Counsel for the petitioners –
tenants is that it is during pendency of the appeal before the appellate
Court, the landlords have transferred the suit property to one stranger
who has sought to be impleaded in the present petition by moving an
application so as to substitute him as one of the respondents. He
would submit that such substitution or inheritance of right is not
maintainable in the petition at the behest of subsequent purchaser.
He would also submit that in the background of above, so far as the
claim of respondents of non-payment of arrears is concerned, the
same has been extinguished and accordingly, present petition needs
to be allowed.
8. Mr Bajaj, learned Counsel for the respondents-landlords would
urge that initially, notices were served on the daughters of the tenant,
however, they are not impleaded as party-defendants to the suit, as
the daughters were not residing with the present petitioners in the
suit premises. He would then urge that it is also not brought on
record by the petitioners' witness namely Suresh that the daughters
are residing together. According to him, in absence of right of
daughters to the tenancy premises, the claim as is put forth is liable to
be rejected, as the suit would not abate in such eventuality. Mr Bajaj
would add that no prejudice is canvassed by the petitioners to such
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daughters who are not before the Court, either at the behest of
petitioners or otherwise. According to him, the same cannot be
termed to be fatal to the interest and rights of the present
respondents-landlords who are fighting for the possession of the suit
premises since last about 35 years.
9. The next submission of Mr Bajaj is that it is claimed that money
order was sent to the landlords, however, no evidence whatsoever in
support of the said claim is brought on record. According to him, the
tenants by way of after thought have come out with a case that they
have personally visited the landlords and offered rent, which was
refused by the landlords and which prompted the petitioners-tenants
to send the same by money order. According to him, the tenants
have not replied the notice of eviction and demanding arrears of rent
issued by the landlords and as such, they were away from there. His
next submission is that after the suit came to be decreed, the
landlords since were in need of money and the petitioners were not
ready and willing to vacate the premises and the premises were also
in a dilapidated condition, that has prompted them to sell the
premises during pendency of the appeal. He would submit that the
copy of the sale-deed is placed on record, which depict that the new
landlord has purchased the premises with all rights including the right
to claim arrears of rent and the other rights recognisable under the
Bombay Rents, Hotel and Lodging House Rates Control Act
(hereinafter referred to as the 'Rent Act' for brevity) and the Transfer
of Property Act. He would then invited attention of this Court to the
fact that even as on date, the petitioners are defaulters and have not
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paid the arrears of rent as is apparent from the affidavit filed by the
petitioner No.1-C – Sunil in the present petition admitting that they
have not paid the rent and are ready and willing to pay the same
before this Court. Mr Bajaj, as such submits that the petition is not
tenable.
10. Having considered the rival submissions of the parties, it is
required to be noted that after the suit came to be filed by the original
plaintiff for vacant possession of the suit premises and recovery of
arrears of rent, the present petitioners filed their written statement
vide Exh.33 to the said plaint though initially they proceeded ex parte.
11. In the plaint, it is claimed that two rooms on the first floor were
let out to the defendants. It is further claimed that the tenancy was
from first day of English calender month and was to expire on last day
st st
of such month. It is claimed that from 1 September 1977 to 31
October 1979 the payment of rent was not made, which has prompted
th
the respondents to issue notice on 25 October 1979 by Registered
th
Post terminating tenancy by the end of 30 November 1979, which
th
was received by defendant No.1 on 27 October 1979, defendant No.2
th
on 10 November 1979, notices of defendants No.3, 4 and 5 were
returned unserved.
12. The defendants, while resisting the above referred contentions,
denied the case of the plaintiffs-landlords in its entirety. Amongst
other, the defence raised was that the monthly rent was Rs.7.50 ps
and the legal representatives i.e. daughters of Kashiram though are
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served with notice, they are not joined as defendants. The arrears of
rent was also denied.
13. The present petitioners – defendants thereafter deposited the
th
rent in Misc. Application No.162 of 1982 up to 30 June 1983. It is
claimed in the written statement that the amount though offered was
not accepted and as such, money order for an amount of Rs.195/- was
th
sent by the petitioners to the respondents-landlords on 11 December
1979.
14. Considering the pleadings, following issues were framed by the
learned Joint Civil Judge, Junior Division, Jalgaon at Exh.41 and were
answered against the present petitioners learned Court below :
ISSUES FINDINGS
1. Does plff prove that the suit
preuises described in para no.1
of the plaint was given on rent
to defendant No.1 and late
Kashiram Palve ? No.
2. Does plff prove that deft. no.1
and late Kashiram Palve formed
Hindu Joint Family and deft No.1
was residing as tenant with
Kashiram Palve ? No.
3. Does deft prove that Sawitribai,
d/o Kashiram and Kasturabai
d/o Kashiram are also legal heirs
of Kashiram and were residing in
the suit premises ? No.
4. Does plaintiff prove that deft No.1
is the karta of joint family of
defendants ? No.
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5. Does defendant prove that the
suit is bad for non joinder of
necessary parties and misjoinder ? Suit is bad for
misjoinder of
parties
6. Does pltff prove that the tenancy
st
of defendants begins on the 1
day of each month and expires on
the last day of the same month ? Yes.
7. Does plff prove that defts are in
arrears of rent from 1.9.77 to
31.10.1979 Rs.195/- ? Yes.
8. Does plff prove that suit premises
has become dilapidated and the
same is required to be dismentaled ? No.
9. Does plff prove that deft No.1 has
secured suitable alternate
accommodation for all the
defendants ? No.
10. Whether the notice dt. 25.10.79
has the effect to terminate the
tenancy of defendants from
30.11.1979 ? Yes.
11. Is the plff entitled for mesne
profits and arrears of rent ? Yes
12. Do defts prove that within
one month from the date of
service of notice, the rent
demanded was sent by money order
was refused by the plaintiffs ? No
13. To whom greater hardship will be
caused if decree of eviction will
be passed ? Does not survive
14. What relief, order and costs ? As per final
order
15. While dealing with the rival contentions of the parties, as are
noted in the foregoing paragraphs and the pleadings as brought
before the learned trial Court, as reproduced herein above, it is
th
required to be noted that the original plaintiff Tulsabai expired on 4
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September 1983 after execution of registered will in favour of the
present respondents. It is required to be noted that the original
defendants No.3, 4 and 5 are the sons of one Kashiram Palve who was
tenant. Though the daughters were not joined, however, the fact
remains that they were not joined, as it was noticed that they were
not residing in the suit house. It is required to be noted that the
defendants' witness Suresh has also not come out with a specific case
that the daughters of the original defendant are not impleaded as
party, as they are residing in the suit block. It is to be noted that the
present petitioners were unable to demonstrate as to why the
daughters were necessary parties to the proceedings for eviction
though they were not residing in the suit premises. Apart from above,
it is required to be noted that for last 35 years of the litigation, the
daughters have not come forward to object the claim of present
respondents for eviction. As such, it appears that the daughters are
not interested in the suit house. Though Mr Dixit has placed reliance
upon the judgment of Allahabad High Court in the matter of Bhkha Lal
and ors., V. Munna Lal (cited supra), so as to substantiate his
contention, however, provisions of Order XXII, Rule 3, 4 and 11 of
Code of Civil Procedure are required to be taken into account.
16. In my opinion, it is required to be noted that the daughters are
not necessary parties in the present proceedings, particularly having
regard to the exceptional circumstances, such as the notice though
served on them, they have not bothered to reply the said notice,
which was issued prior to filing of the suit. In the suit, till date the
daughters have not raised any objection to the present proceedings
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and it has not brought on record by the witness of the defendants-
petitioners that the daughters are residing in the suit premises. In
view thereof, in my opinion, the claim as sought to be put forth that
the daughters should have been added as party and for want of same,
the present petition is liable to be allowed, is liable to be rejected.
17. The next submission of learned Counsel as regards the offer for
arrears, the money order of same is concerned, it is to be noted that it
was very much established that the tenancy was to begin from first
day of English calander month and the same was to expire at the end
of such month and the amount of rent was required to be paid and
st
since the amount was not paid for the period 1 September 1977 to
st
31 October 1979, i.e. total period of twenty-six months which was
calculated as Rs.195/-, the notice at Exh.47 came to be issued which
was served on the present petitioners by registered post vide Exhs.48
and 49. It is required to be noted that the said notice was never
replied by the petitioners, however, it is claimed by the petitioners
th
that money order was sent on 11 December 1979 towards the
arrears of rent i.e. Rs.195/-. It is also required to be noted that the
defendants have not produced any documentary evidence so as to
infer that the money order was sent by the defendants-petitioners to
the original plaintiff towards the payment of arrears of rent and same
was duly paid to the original plaintiff. Rather, the defendants' witness
Suresh was unable to give any convincing answer or defence in order
to support the said claim. Though claim was made that the mother of
the petitioners went to pay the amount, however, she was also not
examined.
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18. In view of above, the claim as was put forth that the rent
amount was duly paid by money order, is also required to be declared
as failed, as is sought to be raised by the petitioners. Learned Courts
below, in my opinion, were right in considering that the amount of
arrears of rent was not sent within the period of one month, as
contemplated in Section 12 (3) (a) of the Rent Act. Though reliance is
sought to be placed by learned Counsel for the petitioners on the
judgment of Allahabad High Court in the matter of Bhkha Lal and ors.,
V. Munna Lal (cited supra), so as to convince this Court to draw
presumption that the money order was sent, however, in my opinion,
in the factual matrix of the present case, the least that was expected
of the petitioners, was to establish the fact of sending money order.
In the present case, it is not established by the petitioners that the
money order towards the payment of arrears of rent was sent. In the
judgment of Allahabad High Court (cited supra), it was well
established before the Court that the money order was sent and that
has prompted the Court to take view in the said judgment that the
money order was sent well within time. As such, the same is having
hardly any applicability to the facts of the present case.
19. The last limb of submission of learned Counsel for the
petitioners is as regards transfer of tenanted premises during
pendency of present proceedings. Though Mr Dixit, learned Counsel
for the petitioners has relied upon the judgment of this Court in the
matter of Vinayak Mahadeo Nirgun Vs. Sadanand Shantaram
Bandekar, reported in 1982 Mh.L.J. 126, so as to canvass that the
transfer of property, which is subject matter of proceedings and under
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the provisions of Rent Act, the suit property, during the pendency of
the suit shall not result in transfer of complete right including that of
right to claim arrears of rent and to seek eviction and also relied upon
the judgment of Apex Court in the matter of N.M. Engineer and
ors., Vs. Narendra Singh Virdi and anr., reported in AIR 1995 SC
448, so as to canvass that the arrears of rent in the hands of
transferee as like in the present case will become debt and could be
actionable claim. So far as above referred submission is concerned, it
is required to be noted that the notice to the tenant demanding
th
arrears of rent and the termination of tenancy was served on 25
October 1979. The suit for arrears of rent and possession came to be
th
initiated before the trial Court on 29 January 1980 and came to be
th
decreed on 24 September 1984. It is thereafter, the present
th
petitioners – tenants filed Civil Appeal No.74 of 1985 on 4 March
th
1985, which was decided on 15 February 1993. In the present case,
the original plaintiff transferred the suit premises to the present
petitioners whose substitution is permitted by registered sale-deed
th
dated 8 April 1987, i.e. after the suit came to be decreed and the
appeal at the behest of present petitioners was pending. If in the
background of above referred facts, the law as relied upon by learned
Counsel for the petitioners is appreciated, in my opinion, the claim as
sought to be raised on the basis of abovesaid judgments, is wholly
misplaced, particularly in the factual background of the present case.
In the matter of Vinayak Mahadeo Nirgun Vs. Sadanand Shantaram
Bandekar (cited supra), this Court was dealing with the eventuality
st
that the owner in the said case on 21 April 1972 sold the premises
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th
and thereafter, on 5 July 1972, assigned the pre-transfer arrears of
rent due to him to the purchaser, based on the same, the purchaser
issued notice to the tenant. In the facts of the present case, it is after
the suit was decreed and during pendency of the appeal at the behest
of present petitioners, the premises came to be transferred. As such,
the said judgment in the matter of Vinayak Vs. Sadanand (cited supra)
has hardly any applicability to the facts of present case. As such, in
the above background, so far as the law laid down by the Apex Court
in the matter of N.M. Engineer and ors. Vs. Narendra Singh Virdi and
anr. (cited supra) is concerned, it is required to be noted that the
Honourable Apex Court, while dealing with the claim therein and upon
taking into account the provisions of Section 3 of the Transfer of
Property Act in the matter of actionable claim, has noted that nowhere
in the said case any assignment of rent was made and the assignee
was not entitled to rent before the assignment and the amount due
prior to the deed could not constitute arrears of rent as it was merely
an actionable claim. This Court had an occasion to consider the said
law laid down in the matter of N.M. Engineer and ors. Vs. Narendra
Singh Virdi and anr. (cited supra), in the judgment reported in 1997
VLJ 612 in the matter of Kunjiram Bhesoram Bhayya Vs.
Nirmalabai Vinayak Kelkar & Ors., decided in Writ Petition
nd
No.4330 of 1984 on 2 July 1997. This Court, while dealing with the
said observations, in paragraph 6 has observed thus :
“6. So far as the third submission made by Shri
Gokhale is concerned, it is to be seen here that the
Supreme Court in its judgment in N.M. Engineer's case,
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relying on the provisions of section 109 of the Transfer of
Property Act had held that a transferee is not entitled to
arrears of rent due before the date of transfer and in that
case the transfer was effected after giving the demand
notice but before instituting the suit. In the present case,
what has been transferred along with the house is the
right of the landlady to institute the suit. In the present
case as a result of the demand notice issued by the
previous landlady and failure of the tenant to comply with
the demand notice, a right to claim a decree of eviction
against the tenant under section 12 (3) (a) of the Act had
vested in the landlady and it is this right which was
transferred by the landlady to the transferee-landlord
after she instituted the suit for enforcement of that right.
In my opinion, the ratio of the judgment of the Supreme
Court in N.M. Engineer's case is not in anyway attracted
in the present case. The question that fell for
consideration before the Supreme Court was that in that
case the landlord had issued a demand notice dated
2.5.1967 and after issuing the notice and before
instituting the suit, the landlord had transferred the
property. It is further to be seen here that the demand
notice in that case was issued on 2.5.1967 and the
arrears of rent were to be paid within a period of one
month from the date on which the tenant received the
notice. It is not clear from the judgment of the Supreme
Court as to on which date the notice was received by the
tenant. However, it is clear from the judgment of the
Supreme Court that on 8.6.1967 the transfer took place.
Thus, the transfer was effected before filing the suit. In
the present case, however, the transfer has been
effected after filing the suit and therefore, in my opinion,
the ratio of the judgment of the Supreme Court in N.M.
Engineer's case would not be attracted in the present
case. It is further to be seen here that it is clear from the
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judgment of the Supreme Court that while transferring
the property, the right to recover rent for the period
anterior to the transfer was not assigned. In the present
case, however, in the sale deed it is clearly stated that a
civil suit has already been filed against the tenant for
recovery of possession as also for recovery of rent and all
the rights of the transferor are transferred to the
transferee. Therefore, the right to recover arrears of rent
was also specifically transferred in the present case. In
any case, in my opinion, in the present case what has
been effected by the transfer is apart from transferring
the property, the transfer of the right accrued to the
landlady to institute the suit for a decree of eviction
against the tenant. Thus, I find no error of law in the
judgment of the appellate court so as to merit
interference at the hands of this court in its jurisdiction
under Article 227 of the Constitution of India.”
20. This Court, while applying the law laid down by the Apex Court
in the matter of N.M. Inamdar's Vs. Narendra Singh Virdi (cites supra),
has already held that the suit at the behest of subsequent purchaser
is maintainable, particularly while transferring the property right to
recover the rent for the period anterior to the transfer is not assigned.
The facts of the present case are almost similar to the judgment of
this Court (cited supra). Reliance can also be placed on the judgment
of this Court in the matter of Shankarrao Rangnath Ghodke Vs.
Ramchandra Bapu Koparde, reported in 2004 (6) LJSOFT 20, so
as to infer that action at the behest of subsequent purchaser is very
much tenable.
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21. In the present case, it is required to be noted that the landlord
has not transferred the suit property, either before issuance of notice
seeking arrears of rent or before the suit came to be initiated. It is
only after the suit came to be decreed, which was for eviction and
payment of arrears of rent, the present petitioners preferred appeal,
the property in question came to be transferred by the respondents-
landlords. The fact remains that the contents of the sale deed, if are
perused, it would be ex facie clear that all the rights are transferred
by the original plaintiffs in favour of present petitioners, who are
permitted to be substituted in the petition.
22. In this background, in my opinion, the submission as sought to
be put forth by the learned Counsel for the petitioners that in view of
transfer of property during pendency of the proceedings, the right of
the original petitioner, so also the present petitioners gets
extinguished, is required to be rejected.
23. One more aspect about which this Court must take note is about
the affidavit, filed by the petitioner No.3-C Sunil before this Court on
th nd
28 January 2015 stating that in view of order dated 22 January
2015, the petitioner is ready to deposit the arrears of rent for the year
nd
2013-2014. On 22 January 2015, after it was brought to the notice
of this Court that up-to-date rent is not paid, this Court has called
upon the petitioners to make a statement and the petitioner has
accordingly deposited the rent till 2012.
24. The fact remains that the rent during the pendency of present
petition is as such, not paid by the petitioners, i.e. after 2012. This
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Court must take judicial note of the same qua the conduct of the
petitioners.
25. In this background, for the reasons stated here above, the
petition preferred by the petitioners is dismissed and the Civil
Application No.2569 of 2012 preferred by the applicant ABM
Properties Pvt.Ltd., Jalgaon through its Director, Omprakash Sitaram
Agarwal, the purchaser of the suit property stands allowed, for the
reasons stated therein.
26. Rule discharged. In the circumstances, there shall be no order
as to costs.
27. Having pronounced the judgment of dismissal of the petition, Mr
Dixit, learned Counsel for the petitioners submits that the interim
order operating in the writ petition be continued for a period of six
weeks. The prayer is opposed by Mr Bajaj on the grund that the
subject-matter of the petition, i.e. tenanted premises is already
demolished and the petitioners are no more in possession of the suit
premises.
28. The above referred fact is not disputed by Mr Dixit. In view
thereof, the prayer for continuation of interim relief stands rejected.
( N.W. SAMBRE, J.)
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