HANMU MHADU NALE SHRI NIVRUTTI MHADU NALE SHRI SADASHIV MHADU NALE Vs. VASANT PARASHARAM KILLEDAR JAYSING SHRIPATI KILLEDAR RAJARAM SHRIPATI

JUDGEMENT

(1.) MR. D. S. Sawant submitted that the applicants be permitted to intervene in the hearing of this writ petition as interveners in view of the agreement in their favour made by Vasant Killedar, the present respondent in the writ petition. Shri Pandit objected to their entry in the hearing of this writ petition on the ground that the respondent had filed a civil suit against the present petitioners for inducting them in context of the suit lend and thereafter the said suit had been withdrawn. He submitted that the said applicants do not have any locus standi to intervene in the hearing of this writ petition and to get themselves included as respondents. This Court allows this objection and refuses permission to the applicants in the hearing of this writ petition. Civil Application No. 380 of 1992 stands so dismissed.

(2.) SHRI Pandit, counsel for the petitioner, pointed out that the S. D. O. Kolhapur was totally wrong in holding that the petitioners are not tenants in his judgment and order in the matter bearing No. TNC-AP-21/85 (Original No. 27/84) because he had already held that Aval Karkun. Karveer had no jurisdiction to proceed ex-parte in the enquiry in Court Reference No. 2/81 for holding that the present petitioners are the tenants of the suit land. He submitted that the S. D. O. should have held that the petitioners were the tenants of the suit land. It is his submission that the said judgment and order passed by the S. D. O. was illegal and the judgment and order passed by the Member of the M. R. T. confirming that also happens to be illegal and therefore, it needs to be quashed along with the judgment and order passed by the S. D. O. Kolhapur by issuing a writ of certiorari in favour of the petitioners.

(3.) IT is depicted from the records that before the enquiry was conducted by Awal Karkun, Karveer in context with Court Reference No. 2/81, a purshis was passed by which the Awal Karkun was informed that the suit in which the said reference was sought was withdrawn by the original plaintiff. The S. D. O. has held that when that was so, it was the duty of the Awal Karkun, Karveer, to make the enquiry with the trial Court whether the adjudication in context with reference was necessary or not. However, without doing that, the Awal Karkun had proceeded to conduct the enquiry for deciding whether the present petitioners were tenants of the suit land or not. The S. D. O. has concluded that the said enquiry was ex-parte and it was without jurisdiction. In fact the initial portion of his judgment and order speaks of that. When that was so, it was not necessary for the S. D. O. to go for an exercise in deciding whether the petitioners were tenants of the suit land or not. He was not required to answer on that point when he had already adjudicated that the Awal Karkun had exceeded his jurisdiction in conducting the said enquiry and giving a finding in it holding that the present petitioners are the tenants. When an appellate authority comes to a conclusion that trial forum passed a verdict without jurisdiction, it should not normally go for recording the verdict on merit by itself. In exceptional cases it can be done but such cases should be rare and should be justified by compelling grounds. S. D. O. should have stopped and should have permitted the parties to go to Awal Karkun and A. L. T. for getting an adjudication on that point because it is well settled rule of prudence that the lowest court or lowest forum should be permitted to go for adjudication on the point or on the issue which falls within its jurisdiction. It is also to be done that way for avoiding the possibility of a party getting a finding against it losing a right to challenge it before the appropriate forum. By doing such exercise, the S. D. O. Kolhapur had committed an error of depriving of the present petitioners of their right to challenge that finding in an appeal. Thus, by all means, the said finding which has been recorded by the S. D. O. Kolhapur declaring that the present petitioners are not tenants of the suit land stands vitiated and becomes illegal.