LILABAI MADRE PILLAY Vs. TAHERALLI ABDUL KAYUM

JUDGEMENT

(1.) PRESENT revision petition is filed by defendants/legal representatives of deceased Madre Pillay - original defendant, challenging the order dated 30-1-1999 passed by learned II Additional District Judge, Ahmednagar in Misc. Civil Appeal No. 264 of 1988. By the impugned order, learned Additional District Judge was pleased to set aside dismissal of Regular Civil Suit No. 105 of 1981 by virtue of order dated 28-6-1998, passed by Joint Civil Judge J. D. Ahmednagar. In fact, by order passed below Exhibit 83, an application filed by petitioners, learned Joint Civil Judge J. D. Ahmednagar held that the suit of the plaintiffs is totally abated in view of the fact that some of the legal representatives of Madre Pillay are not brought on record, and consequently by separate order below Exhibit 1, the whole suit is dispose of as dismissed.

(2.) REGULAR Civil Suit No. 105 of 1981 was filed by eleven plaintiffs regarding the suit premises, allegedly let out to defendant Madre Pillay for business purpose. The possession was claimed on the ground that premises were bona fide required for starting of business of the family of plaintiffs. It was also contended, that the premises were required to be vacated, since requisite major repairs cannot be carried out while the tenant is in possession. Admittedly Madre Pillay was running tailoring shop in the name and style "madras Tailors" in the suit premises. That the suit premises are being used as business premises, is evident from the pleadings of both the parties and undisputed. It appears from the copy of the plaint, annexed as Exhibit "a" to revision petition that legal heirs of original defendant Madre Pillay are brought on record by amendment dated 13-1-1982 and as many as six persons are brought on record namely, Sunderabai Shivlingam Pillay, Leelabai d/o Madre Pillay, Sham s/o Madre Pillaly, Shubhalaxmi d/o Madre Pillay, Lata d/o Madre Pillay and Dharmraj s/o Madre Pillay.

(3.) IT appears that the suit has reached the state of evidence and evidence of one Fakruddin as first witness of the plaintiffs had commenced. Said witness, in paragraph No. 21 of his deposition (during the course of cross-examination) stated that Madre Pillay had three sons and a daughter. Subsequently in the same paragraph he admitted that Madre Pillay had four sons and one daughter. He also admitted that all sons are residing together and all of them are major. Daughter Lata is married. (Throughout their arguments, both the lawyers did not clarify as to how three daughters and two sons of Madre Pillay have come on record, although application Exhibit 83 and arguments of learned counsel for petitioners are based on the admission of witness Fakruddin to the effect that Madre Pillay had four sons and a daughter. In this context, contentions in paragraph No. 5 of Exhibit 49 - written statement filed by legal heirs, to the effect that the names of defendants Nos. 4 and 5 Shubhalaxmi and Lata) are wrong has also some significance. However, it was clarified during the course of arguments that Sunderabai was sister of Madre Pillay and she died issueless, while staying with Madre, as her husband had deserted her ). In view of above deposition of witness Fakruddin, defendants filed application Exhibit 83 claiming that plaintiffs have failed to bring any legal heirs of Sunderabai and some legal heirs of Madre Pillay on record and therefore, the whole suit has abated and the same may be dismissed. After considering the arguments of both sides, learned Civil Judge was pleased to accept the prayer mainly in view of the observations of this High Court in reported judgment in the case of Dattaram v. Harikishan, 1979 Mh. L. J. 633. The matter, was challenged before the District court in the form of Misc. Civil Appeal No. 264 of 1988 by plaintiffs' and learned District Judge was pleased to allow the said appeal by the impugned order, set aside the dismissal and abatement, restore the suit to the file with directions to plaintiff to bring remaining legal heirs on record.