Disposed

Mukunda Rama Tipparse v. Mahajan Gunaji Chitale and Ors.

Bombay HC29 Nov 2011WP/626/2009

Case brief

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What is this about?

The petitioner, original defendant in a suit for injunction, challenged the rejection of his application to frame tenancy and jurisdiction as preliminary issues. The single judge held that since a tenancy court had conclusively determined the petitioner to be a tenant with this court's confirmation, the civil court must be bound by such finding. Consequently, the writ petition to frame tenancy iss

What the court decided

AI extract

Mukunda Rama Tipparse Vs Mahajan Gunaji… — Civil Procedure and Limitation | Bombay HC (2011)

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W.P.No.626/2009.

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO.626 OF 2009

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.N.N.Shinde, advocate for the petitioner.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 29.11.2011.
PER COURT :

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Heard.

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The present petitioner is the original defendant. The Respondent filed a suit for injunction. In the said suit, the petitioner filed an application for framing the issue of tenancy and the jurisdiction of the Court as preliminary issue. The said application is rejected. Aggrieved thereby, the present petition is filed.

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Mr.Shinde, learned counsel for the petitioner submits that the petitioner has raised the point of tenancy and even the proceedings were taken up before the competent authority under the provisions of Hyderabad Tenancy and Agricultural Lands Act. In the said proceedings, the petitioner is declared as a tenant in

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W.P.No.626/2009.

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possession. The said finding is confirmed upto High Court. The learned counsel contends that there was no impediment for the Court to frame the issue of tenancy and jurisdiction as Civil Court is not competent to decide the issue of tenancy. The learned counsel contends that the impugned order was first assailed in Civil Revision Application. This Court had granted stay in the said Revision. Subsequently because of amendment to Section 115 of the C.P.C., the Revision was not tenable and present Writ Petition was filed. According to the learned counsel when upto this Court it has been held that petitioner is a tenant, the suit itself is not maintainable.

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As it appears from the pleadings in the Writ Petition, the suit is for injunction. If as contended by the petitioner, the rights of the petitioner as a tenant are concluded up to this Court then in such circumstances, the Civil Court is bound by the finding of the Tenancy Court and confirmed by this Court. So in such circumstances, again it would not be required to refer the issue of tenancy to the Tenancy Court nor to frame issue to that effect. The suit being for injunction, the factum of possession is only required to be considered by the Civil Court and no finding on the tenancy can be given by the Civil Court except to accept the finding given by the Tenancy Court and confirmed by this Court.

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W.P.No.626/2009.

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In light of the above, the Writ Petition is disposed of. No

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costs.

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(S.V.GANGAPURWALA,J.)

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Dt.29.11.2011. asp/office/wp626.09

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W.P.No.626/2009.

Mukunda Rama Tipparse v. Mahajan Gunaji Chitale and Ors.

Case brief

What is this about?

What the court decided

Mukunda Rama Tipparse v. Mahajan Gunaji Chitale and Ors.

Case brief

What is this about?

What the court decided

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