LAWS(BOM)-1973-7-37

SUPDABAI BADRINARAYAN JOSHI Vs. SUBHASH KASHINATH SHRAWAK

Decided On July 13, 1973
Supdabai Badrinarayan Joshi Appellant
V/S
Subhash Kashinath Shrawak Respondents

JUDGEMENT

(1.) THE original defendant is the petitioner here and he has filed this petition under Article 227 against the order passed by the learned Extra Assistant Judge, Nasik in appeal. During the minority of the original plaintiff his mother Tarabai as the guardian had filed a suit against the petitioner for recovery of possession of the suit house. The petitioner was staying there for a long time. Because the plaintiff's suit was decreed, therefore the petitioner filed an appeal against the said decree. The decree was modified by the appellate Court and the petitioner was asked to vacate the suit house by March 16, 1966 in order to facilitate the plaintiff to start and finish the repair work. It was ordered that the petitioner shall be restored the possession of the premises after the repairs. It is in these circumstances that the original plaintiff obtained possession of the premises on March 17, 1966, and carried out the repairs. The unfortunate part of it was that the petitioner was not allowed to return to his premises and the result was that he filed a Miscellaneous Application on June 20, 1966 for restoration of possession under Section 16 of the Rent Act.

(2.) THE petitioner impleaded the minor son of Tarabai as the defendant represented by his natural guardian mother Tarabai who had as the guardian of the minor filed the original suit against the petitioner asking him to vacate the suit premises for the purpose of repairs. No formal order appears to have been passed by the Court appointing his mother Tarabai as the guardian -ad -litem. The decree came to be passed in the miscellaneous application on June 29, 1967 but the original plaintiff's mother filed an appeal which was dismissed. It is in these circumstances that the original plaintiff who was represented by the natural guardian in the miscellaneous application and who had also filed an appeal against the decision of the trial Court in the miscellaneous application filed a suit with which we are now concerned. The respondent -plaintiff prayed for an injunction against the petitioner -defendant restraining him from recovering possession of the suit premises on the ground that the decree in the miscellaneous application is not binding on him because the petitioner did not take any steps to appoint his mother as the guardian and no formal order was passed by the trial Court appointing his mother as the

(3.) IT would be useful if we recall some of the admitted facts. The minor landlord is the respondent here. The respondent when he was a minor filed a suit in the year 1963 and his mother was a guardian representing the minor at that time. The respondent was born on July 13, 1948 and he became a major on July 13, 1966. The miscellaneous application No. 25 of 1966 with the decision of which we are concerned here was filed by the petitioner on September 26, 1966 for restoration of possession. He made the respondent a party to the proceedings through his natural guardian mother Tarabai. It is therefore significant to remember that the respondent who became a major on July 13, 1966 i.e. a month after filing of the miscellaneous application did not raise any objection whatsoever to the proceedings. His mother who was joined as the guardian of the respondent also never mentioned anything during the course of the proceedings of the miscellaneous application. The petitioner obtained a decree in the miscellaneous application on June 29, 1967. The respondent's mother who was representing the respondent as the guardian in the miscellaneous application therefore filed an appeal as the guardian of the respondent on October 7, 1968. In fact on October 7, 1968 the respondent had already become a major. He became a major on July 13, 1966. Her appeal was dismissed. It is after the dismissal of the appeal of the respondent's mother that, the respondent brought the suit on January 15, 1969 saying that the decree in the miscellaneous application was not binding upon him on the ground that a formal order was not passed by the Court appointing his mother as the guardian -ad -litem. The point therefore that arises here for consideration is whether such a defence can be taken by the respondent in the circumstances in which the decree in the miscellaneous application was passed.