VALLABHDAS NANDLAL PANCHAMIYA Vs. MANSUKHLAL BHAGWANJI
HIGH COURT OF GUJARAT
Vallabhdas Nandlal Panchamiya
Referred Judgements :-
KANTI CHANDER MUKERJI ANR. V. PIRBHO DAYAL
DIRGHAYU PANDE V. SHRIMATI KISHORI KUER
LAKHSMI NARAIN V. BABU AND ANR.
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(1.)The facts giving rise to this revision application briefly stated are under:
The petitioner in the instant case is the original defendant while the opponents are the original plaintiffs. For the sake of convenience, therefore, I will refer to the parties as plaintiffs and defendant. The suit property consisting of three rooms, Osri, kitchen and bathroom were let to the defendant for his residence on a monthly rent of Rs. 15/-. He had shifted to Bombay with his family for service about 22 years prior to the institution of the suit. As he did not reside in the premises and did not use it for the purpose of residence, continuously for a period of six months or more, the plaintiffs brought a suit to recover vacant possession thereof under Section 13(1)(1) of the Bombay Rent Control Act. The defendant by his written statement Ex. 8 contested the suit and denied various averments made in the plaint. The learned trial Judge held that the plaintiffs had failed to prove non-user of the suit premises by the defendant for the purpose of residence without reasonable cause for a continuous period of six months immediately preceding the date of the suit. He, therefore, dismissed the suit for possession. Against the said judgment and decree, Civil Appeal No. 76 of 1967 was preferred in the court of the learned District Judge, Rajkot which was heard by the learned Assistant Judge, Rajkot at Gondal. The learned Judge after hearing both the parties, allowed the appeal and passed a decree for eviction holding that the suit property was not used continuously for a period of six months without any reasonable cause. Against the said order passed by the learned Assistant Judge, original defendant has preferred this revision application.
(2.)Mr. Suresh M. Shah, learned Advocate for the petitioner urged that in the instant case, before the suit was disposed of, the plaintiffs had already transferred their interest in the property by sale to Bai Savita and Bai Gunvanti Amrutlal by a sale deed dated 1-5-1967. He stated that the suit was dismissed by the court on 30-6-1967. Thus, when the appeal was preferred by the present opponents in the district court, they had no subsisting interest in the property. The assignee was not brought on record under order 22, Rule 10, C.P.C. Code. He, therefore, urged that in the absence of any assignee being brought on record as provided in order 22, Rule 10, C.P. Code, the whole appeal filed by the opponents (original plaintiffs) was incompetent. Therefore, the result would be that the original decree passed by the trial court dismissing the plaintiffs' suit would remain.
(3.)Mr. J.R. Nanavaty, learned Advocate for the opponents thereupon submitted an application signed by the purchasers for being brought on record under order 22, Rule 10, C.P. Code. The application is hotly contested by the learned Advocate for the petitioner.
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