Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 6393 of 2008 IN APPEAL NO. 97 of 2004 IN T.E.& R. SUIT NO.105/110 of 2002 Dena Bank ...Petitioner V/s. Dr. Ahmed Ibrahim Khatri & Ors. ...Respondents Mr. Gaurav Joshi a/w. Shilpa Kamble i/b. Shukla & Shukla for the petitioner. Mr. M.L.Palan i/b. M/s. M.K.Khatri & Co. for respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 26th SEPTEMBER, 2008 : 26th SEPTEMBER, 2008 : 26th SEPTEMBER, 2008 P.C. . Heard Counsel for the parties. The only controversy in this petition is whether the other co-owners were opposed to passing of a decree of eviction against the petitioner tenant. In other words, whether the other co-owners were not agreeable to eject the petitioner tenant. 2. In the first place, the petitioner has not expressly pleaded in the written-statement that the other co-owners were not agreeable to eject the petitioner, as a ground for dismissing the Suit filed by the respondents who are admittedly the co-owners/landlords. Besides, no attempt is made to produce evidence to prove that fact. Obviously, 2 therefore, no such issue was specifically framed by the Trial Court; and a general issue as to whether the suit is maintainable has been considered and answered by the Trial Court. Whereas, the only grievance before the Trial Court was that other co-owners have not been impleaded in the suit resulting in non-joinder of necessary parties, as a ground for dismissing the suit. So far as that grievance is concerned, it is well established position that the co-owners need not be joined as party to the Suit. Keeping that settled legal position in mind, the Trial Court answered the issue of maintainability of the Suit against the petitioner. When the matter was carried in appeal for the first time, the other co-owners filed application making grievance about the manner in which the respondents unilaterally proceeded to terminate the tenancy of the petitioner in respect of the suit premises. Significantly, the said application was contested and eventually rejected by the Appellate Court on the reasoning that the co-owners were not necessary parties. That order has attained finality. 3. However, relying on the allegations made by the other co-owners in the said application against the respondents, the petitioner would argue that the substance of the application does indicate that the said co-owners were not agreeable for ejectment of the 3 petitioner. However, in my opinion, even on a fair reading of the said application-clause by clause or as a whole, not even a vague assertion can be culled out which would indicate that the other co-owners were not agreeable for ejectment of the petitioner tenant as such. It is a different matter that the grievance made in the application is essentially directed against the conduct of the respondents that they unilaterally terminated the tenancy and also proceeded to file suit for eviction without taking them in confidence. That allegation does not necessarily mean that the other co-owners were not agreeable for the eviction of the petitioner. Thus understood, the fact that other co-owners were not impleaded as party to the suit filed by the respondents does not take the matter any further. 4. Indubitably, the question whether the other co-owners were supporting the cause of eviction against the petitioner or were not agreeable for eviction of the petitioner is a question of fact which was required to be specifically pleaded by the petitioner as their defence. Besides pleading that fact, the petitioner was expected to substantiate that fact. It is well established position that relief can be granted to a party on the basis of pleading and proof. In absence of pleading and proof on the relevant aspect, even if the Appellate Court has dealt with the contention of the 4 petitioner that does not take the matter any further for the petitioner. 5. Counsel for the petitioner has placed reliance on the decision reported in (2006) 2 Supreme Court Cases (2006) 2 Supreme Court Cases (2006) 2 Supreme Court Cases 724 724 724 in the case of Mohindra Prasad Jain V/s. Manohar Mohindra Prasad Jain V/s. Manohar Mohindra Prasad Jain V/s. Manohar Lal Lal Lal Jain Jain Jain, which reiterates the legal position expounded in the earlier judgment in the case of India Umbrella India Umbrella India Umbrella Manufacturing Manufacturing Manufacturing Co. & Ors. V/s. Bhagabandei Agarwalla Co. & Ors. V/s. Bhagabandei Agarwalla Co. & Ors. V/s. Bhagabandei Agarwalla (Dead) (Dead) (Dead) by legal heirs Smt. Savitri Agarwalla & ors. by legal heirs Smt. Savitri Agarwalla & ors. by legal heirs Smt. Savitri Agarwalla & ors. reported reported reported in (2004) 3 Supreme Court Cases 178. in (2004) 3 Supreme Court Cases 178. in (2004) 3 Supreme Court Cases 178. In that case, Apex Court observed that the consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement. Infact this exposition of the Apex Court would obligate the petitioner to not only plead but also prove the fact that the other co-owners were not agreeable to eject the petitioner and the subject suit was filed inspite of their disagreement. That pleading is completely absent in the written-statement as filed. No attempt for amendment of written-statement and to produce evidence to establish the above fact was made by the petitioner. 6. What is significant to notice is that the other co-owners filed application simplicitor for impleadment 5 and made grievance about the conduct of the respondents, that application was filed for the first time before the Appellate Court after the suit for ejectment was already decreed. It is not necessary for us to enquire into the fact as to whether the other co-owners subsequently withdrew their consent or otherwise. For, as aforesaid, in the application filed by the other co-owners no assertion is made that they were not agreeable to the ejectment of the petitioner. If it is a case of subsequent withdrawal of consent, as observed by the Apex Court in the India Umbrella Manufacturing Co. (supra), that cannot come to the aid of the tenant. 7. Be that as it may, the fact remains that the co-owners have not specifically asserted that they are not agreeable for ejectment of the petitioner or for that matter inspite of their disagreement, the suit for eviction has been instituted. As aforesaid, the grievance of other co-owners about the conduct of the respondents is not a relevant fact for answering the point in issue. The question whether the other co-owners may have objection to the respondents alone getting possession of the suit premises upon execution of the decree of eviction is a matter which will have to be addressed in the appropriate proceedings between the co-owners. Indeed, the decree of eviction may enure in favour of all the co-owners. All questions in that 6 behalf are left open. That, however, cannot be the basis to hold that the other co-owners are not agreeable for ejectment of the petitioner/s tenant. Thus understood, this petition is devoid of merits. The same is dismissed. 8. At this stage, Counsel for the petitioner seeks stay of the operation of the decree to enable the petitioner to take the matter in Appeal. As the request is reasonable one, although it is opposed by the respondents, it is ordered that the impugned decree shall not be given effect to till 14th November, 2008 subject to filing usual undertaking in this Court within two weeks from today and depositing arrears, if any. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]