SHANTARAM HIRACHAND DANEZ Vs. NARAYAN BAPUSA FULPAGAR

JUDGEMENT

(1.) THE judgment and decree dated June 22,1987 passed by IInd Additional District judge, Nasik in Civil Appeal No. 82 of 1985 affirming the judgment and decree-passed by the Civil Judge, Junior Division, Yeola on 10-12-1984 in Suit no. 46 of 1977 decreeing plaintiff's suit for eviction is under challenge. The only contention raised by the learned counsel for the petitioner is that the suit for eviction was filed by the Court Receiver without obtaining leave of the Court which appointed him and, therefore, the said suit being bad in law right from inception, the decree passed therein is also bad in law and unsustainable.

(2.) THE brief facts relevant and necessary for deciding the contention raised by the learned counsel for the petitioner are:-The premises in question comprise of two rooms Nos. 1 and 4 situated at CTS no. 3027 at Yeola, Dist. Nasik. The premises in question belonged to Narayan bapusa Fulpagar, original respondent (since deceased and now represented by his legal representatives ). The landlord let out the said premises to the present petitioner's father on monthly rent of Rs. 11 and after his death petitioner is tenant therein. It appears that a suit for partition was filed which was registered as Special civil Suit No. 28 of 1956. In that suit the Court Receiver was appointed. The court Receiver filed the suit for eviction against the petitioner in the Court of Civil judge, Junior Division, Yeola on the ground of arrears of rent. It was averred that in the plaint filed by the Court Receiver that tenant had not paid rent since 1-1-1972 and that he was defaulter. A notice was issued to the tenant on 20-10-1976 terminating his tenancy and called upon him to pay arrears of rent. The tenant admittedly did not make payment of arrears of rent as was called upon by the notice dated 20-10-1976 and as a result thereof the Court Receiver was constrained to file the suit. After the suit was filed by the Court Receiver, it seems that the suit for partition in which the Court Receiver was appointed was decreed in favour of the landlord and the landlord got possession, of the suit property from the Court receiver. The landlord made an application thereafter before the trial Court for substituting him in place of the Receiver and also made an application for amendment of the plaint which was allowed and the landlord was substituted in place of the Court Receiver. After recording the evidence, the trial Court decreed the suit on 10-12-1984. The judgment and decree passed by the trial Court has been affirmed by the appeal Court.

(3.) NO material was placed by the Court Receiver that before filing the suit he, had obtained requisite leave of the Court. It may be assumed therefore that the court Receiver filed the suit for eviction of the tenant without obtaining leave of the Court. The fact is, thereafter the landlord was substituted in place of Receiver and after the trial landlord's suit for eviction has been decreed. The question that needs to be considered is whether in the facts and circumstances aforesaid when the suit was filed by the Court Receiver without obtaining leave of the Court and thereafter the Court Receiver was substituted by the landlord, irregularly in filing of the suit by the Court Receiver is cured or not?