Single Judge在本裁定中否决了申请人以当事人遗漏和执行无效为由提出的争议，指出土地关系已获承认，第三人权利可在其他诉讼中解决，未发现错误适用第 115 条 CPC 的理由，驳回申诉。
The Civil Revision Application is dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 / 6 CRA /1052/2012
Tapadia RR/B.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 1052 OF 2012 WITH
CIVIL APPLICATION NO. 352 OF 2013 IN CRA/1052/2012
Indian Oil Corporation
..Applicant
Vs
Talera Car Pvt Ltd .. Respondent
Ms.Tanmoi Gadre i/b RMG Law Associates, Advocate for the Applicant.
Mr.Madhav Jamdar, Advocate for the Respondent. Mr.Mayur Khandeparkar, Advocate a/w Mr. Gandhar Raikar and Mr. Pranaw Desai for Intervenor.
CORAM : R.G.KETKAR,J. DATE : 02/09/2013
PC:
2 / 6 CRA /1052/2012
submitted that the suit instituted by the respondent is bad for non joinder of necessary party. She submitted that though the applicant is a tenant, it had given permission to one Dalichand Khusalchand Rathod as a licensee. She also invited my attention to the cross examination of the respondent's witness and in particular paragraph 13. In paragraph 13, he stated that he does not know whether the company personally runs the petrol pump and he does not know whether Rathod is running petrol pump business since prior to 1970. In other words, she submitted that since the respondent-plaintiff is not aware as to who is in actual possession of the suit premises, the suit must fail on the ground of non joinder of necessary party as also the decree has become inexecutable. She also invited my attention to paragraphs 7 to 9 of the trial Court's Judgment dealing with the issue of suit being bad for non joinder of necessary party. She also relied upon the decision of Allhabad High Court in the case of Mt. Zabaishi Begam Vs. Naziruddin Khan, AIR 1935 Allahabad 110 and in particular at page 115. She submitted that since the applicant is not in actual physical possession and licensee is in possession, the decree has become inexecutable and consequently the Court will decline to pass a decree which is ineffective and infructuous. 3. On the other hand, Mr. Jamdar supported the impugned orders. He submitted that the respondent had issued notice
3 / 6 CRA /1052/2012
dated 7.3.2003 to the applicant herein. In paragraph 4 of that notice, it is specifically asserted that the applicant, being a public sector undertaking, as described in the Maharashtra Rent Control Act, 1999 (for short, 'said Act') and the paid up share capital is more than one crore, the said Act is not applicable and the relations between the parties are governed by the provisions of the Transfer of Property Act, 1882. He also invited my attention to the reply dated 21.3.2003 given on behalf of the applicant and in particular paragraphs 2 and 4 thereof. In paragraph 2, it is asserted that the applicant was paying Rs.750/- p.m to the landlord as per terms of the Lease Deed and monthly tenancy of the applicant was also admitted. In paragraph 4 of the reply, the contents of the paragraph 4 of the notice about applicability of the said Act were said to have been correct. He, therefore, submitted that the applicant has admitted the assertions made in paragraph 4 of the notice about the paid up share capital being more than Rs. One crore and consequently the provisions of the said Act are not applicable. 4. I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. As noted earlier, the main argument advanced by Ms Gadre is that the suit instituted by the respondent is liable to be dismissed for non joinder of necessary
4 / 6 CRA /1052/2012
party. The trial Court has considered this aspect from paragraphs 7 to 9. It also noted that Dalichand Rathod has also instituted suit in Pune Court claiming interest over the suit property. The learned trial Judge observed that whatever rights Dalichand Rathod has, the same can be investigated in the suit instituted by him. The respondent has instituted the suit in the capacity as landlord against applicant herein who is admittedly the tenant of the respondent. The trial Court, therefore, came to the conclusion that presence of Dalichand Rathod is not necessary for deciding the suit. In paragraph 9, the learned trial Judge also considered the submission that since the applicant is not in possession of the suit premises, the decree that may be passed, would be infructuous. The learned trial Judge observed that what would happen after passing or non passing of the decree is the question to be considered while execution of decree, if passed, and the question/objection cannot be considered at the time of passing of the decree.
5 / 6 CRA /1052/2012
find that the Courts below committed any error in overruling that objection. As noted earlier, the applicant is the tenant in respect of the suit premises and the respondent is admittedly the landlord. Having regard to the notice dated 7.3.2003 issued by the respondent and the reply dated 21.3.2003 given by the applicant herein, no fault can be found with the impugned orders. That apart, in paragraph 16, the Appellate Court recorded a finding to the effect that the applicant is not entitled to the protection under the said Act in view of applicant's admission in reply dated 21.3.2003. In the result, no case is made out for invocation of powers under section 115 of C.P.C. The Civil Revision Application fails and the same is dismissed.
6 / 6 CRA /1052/2012
rejected.
(R.G.KETKAR, J.)
3 issues framed by the court
Whether the suit for eviction could be dismissed for non-joinder of a necessary party who is an alleged licensee in actual possession.
Whether a decree passed in an eviction suit against a tenant is infructuous if the tenant is not in actual possession.
Whether the Civil Revision Application is maintainable under section 115 CPC given the admitted landlord-tenant relationship.
Colour shows how this judgement treated each authority
Mt. Zabaishi Begam Vs Naziruddin KhanReferred¶16
Mt. Zabaishi Begam Vs Naziruddin Khan, AIR 1935 Allahabad 110 · Who else cites this
2 provisions across 2 enactments
Indian Oil Corporation
Talera Car Pvt Ltd
R.G.KETKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
