1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6932 OF 2009 1 Dr.Giridhar s/o Madanrao Karajgaonkar, age: 51 years, Occ: Medical Practitioner, residing at Plot No.3, Alankar Cooperative Housing Society, Pundlik Nagar Road, Aurangabad, District Aurangabad. 2 Dr.Mrs.Sujata Giridhar Karajgaonkar, age: 42 years, Occ: Medical Practitioner, residing as above. Petitioners Versus Avinash s/o Yeshwantrao Dodal, age: 38 years, Occ: trade, residing at Dodal Capital, Pundlik Nagar Road, Aurangabad. Respondent Mr.Hemant Surve, advocate for the petitioners. Mr.R.R.Mantri, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 24 th August, 2010. ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 2 Petitioners herein instituted Special Civil Suit No. 544/2008 claiming recovery of possession, mandatory injunction as well as perpetual injunction and mesne profits against Respondent – original defendant and same is pending. 3 The subject matter of the suit is two shops which are put to use by the defendant as godown. It is contended that defendant instituted Regular Civil Suit No.711/2005 claiming that he was tenant over the property and amenity of electricity be restored in respect of shop premises. The claim raised in the suit was turned down holding therein that defendant is not the tenant in respect of suit premises. The decision rendered in the said suit has not been challenged by the tenant and has attained finality. Defendant thereafter proceeded to file another suit being SCS No. 409/2005 contending therein that the petitioners herein have agreed to sell the property in his favour for consideration of Rs. 6,80,000/- and have already received a sum of Rs.5,13,000/-. Said suit is stated to be pending. 4 In a suit presented by petitioner – original plaintiff, it is contended that the property in dispute has been unauthorisedly possessed by the defendant. In rainy season of 1997, on the request made by defendant, he was permitted to stock his goods for a limited period in the premises. It was assured by the defendant that he would use the premises as godown for stocking 3 the goods and would vacate the same after he makes arrangement for keeping the goods at alternate site. Defendant, however, retained the property and changed user of the premises. The plaintiff was, therefore, constrained to file the suit. Defendant has, however, while contesting the claim raised by the plaintiff, has contended that he is a tenant in respect of the suit premises, and that there was also an agreement to sell executed in his favour. 5 On the basis of pleadings, the trial Court framed issues. Issue No.2 framed by the trial Court reads thus: Whether plaintiffs prove that they have permitted the defendant for use of suit property without rent? The issue, as framed by the trial Court, was not in consonance with the pleadings of plaintiff. As such, an application was tendered at Exhibit-22 requesting the Court to recast the issue and frame following issue: Whether plaintiffs prove that they have permitted the defendant to use the suit property for stocking of the goods? 6 I have perused the pleadings. Plaintiffs have come to the Court with a contention that the suit property is given to the 4 defendant for stocking of goods. The necessary contentions find place in paragraph 2 of the plaint. Those are quoted below: “That the suit premises, more particularly described in paragraph No.1 of the plaint, is owned by the plaintiffs. The Defendant was a hawker by profession. He used to sell consumer durables on door-to-door basis on a four-wheel hand pushed cart. The defendant was stocking his hand-cart abutting the suit premises on the front road. Sometime in rainy season of 1997, the defendant approached to the plaintiffs and requested them for parting the suit premises for stocking his goods for a limited period. At that time, the defendant assured the plaintiffs that the suit premises will be used only as a godown for stocking the goods and it will be vacated on finding of an alternative site, or whenever asked by the plaintiffs. Therefore, on sheer humanitarian considerations, the plaintiffs permitted usage of the suit shops for stocking the goods only, necessarily for the period desired by the plaintiffs. Since then, the defendant was utilizing the suit premises for stocking the goods.” 7 On perusal of the pleadings, it transpires that issue framed by the trial Court is not in consonance with the contentions raised in the plaint by the plaintiffs. The case of the plaintiffs is not that the defendant was permitted to use the property without paying rent, however, it is a specific case put up by the plaintiffs that the defendant was permitted to stock his goods in the suit premises. Thus, the trial Court ought to have 5 accepted the contentions raised by the plaintiffs and ought to have recast the issue. 8 The Writ Petition, thus, deserves to be allowed and same is accordingly allowed. The order passed by learned III Joint Civil Judge, Senior Division, Aurangabad, below Exhibit-22 in R.C.S. No. 544/2008 on 04.08.2009 is quashed and set aside and the application tendered by the plaintiffs shall be deemed to have been allowed. 9 Rule is made absolute accordingly. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp693209