BALU APPAJI SANGAONKAR Vs. RANGRAO DATTOBA PALKAR

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Additional District Judge, Kolhapur dated 16-12-1992 below Exhibit 35 in Regular Civil Appeal No. 69 of 1992.

(2.) THE preliminary objection raised on behalf of the respondent is that this writ petition cannot proceed in absence of Kondi Rama Dhinde, original defendant No. 1. This objection is, however, being raised for the first time across the bar. This writ petition has remained pending since 1993, for it was admitted as back as one 18-2-1993. Admittedly, the respondent did not file any reply affidavit or a formal application raising this preliminary objection, but the same was raised only when the Court was about to dictate the judgment after hearing both the Counsel on merits. In any case I find no force in the preliminary objection. In my view the presence of Kondi Rama Dhinde, original defendant No. 1, is not essential or necessary for the adjudication of this petition. It is relevant to point out that, admittedly, the suit proceeded ex parte against the said Kondi Rama Dhinde, original defendant No. 1. Moreover, the said Kondi Rama Dhinde, original defendant No. 1, filed purshis before the trial Court that he had no concern with the suit premises and he is not interested in contesting the suit. Accordingly, the suit proceeded ex parte against the said Kondi Rama Dhinde, original defendant No. 1. Besides this, the application on which the impugned order has been passed by the Court below was taken out by the respondent herein only. The respondent has prayed for amendment of the written statement as well as the appeal memo pending before the Appeal Court. Accordingly, it is only the respondent herein who can be said to be the interested and contesting party and would be the only aggrieved party if the order passed below Exh. 35 is to be reversed or modified in any manner. As such the presence of Kondi Rama Dhinde, original defendant No. 1, cannot be said to be so essential or necessary. Therefore, I have no hesitation in rejecting the preliminary objection raised on behalf of the respondent.

(3.) COMING to the merits of the case, the petitioner plaintiff instituted suit against the respondent-original defendant No. 2 and said Kondi Rama Dhinde, original defendant No. 1, for possession of the suit property mainly on the ground of unlawful sub-letting of the suit premises in favour of the respondent-defendant No. 2. The averments in the plaint, which was produced before this Court, indicate that the petitioner went to the Court with specific case that the respondent herein was seen in the suit premises some time in 1968 when the petitioner issued notice dated 6-5-1968 to the said Kondi Dhinde, original tenant defendant No. 1, calling upon him to explain the circumstances. The petitioners case in the plaint is that in response to the said notice the said Kondi Rama Dhinde, original defendant No. 1, replied that respondent herein defendant No. 2, was in the premises only as his agent and in no other capacity and that the petitioner verified the said fact and was satisfied with this reply. The plaint, filed in the year 1983, further asserts that recently it was noticed that the defendant No. 2 respondent herein was seen in exclusive possession of the suit premises and defendant No. 1 had presumably left the suit premises by unlawfully sub-letting the same to the respondent herein. Thus the plaint, at best admits of the exclusive possession of the respondent as sub tenant only from 1983. In this background the petitioner maintained the suit against the defendants.