1 and 2 was for recovery of possession of suit premises in case it was held that they had already been dispossessed.
1 and 2 had filed Execution Application No.15/98/A for being put in possession of the suit premises in execution of order dated 17.4.1997 passed in an application for temporary and mandatory injunction.
1 and 2 by observing that leave of the Court will be presumed to have been granted because the additional written statement was filed on 3.3.2004 and respondent Nos.
Whether the plaintiffs prove that the suit filed by them for declaration of tenancy right is maintainable for want of the owners of the suit premises?
Respondent No.3 further pleaded that the companypetent authority granted him excise licence after being satisfied that the suit premises were suitable for doing business in liquor.
Respondent Nos.
Abdul Razak died during the pendency of the suit.
1 and 2, but also pleaded that after being forced to leave Kuwait in the wake of war, he came to India and is doing business of distribution of liquor in the suit premises on the basis of permission accorded by defendant No.2 Abdul Razak, who was a family friend.
Thereupon, respondent Nos.
Abdul Razak predecessor of the appellants filed a separate written statement.
1 and 2 filed suit in the Court of Civil Judge Senior Division , Panaji hereinafter described as the trial Court for declaring them as lawful tenants of suit premises and also for restraining the defendants Suresh Naik respondent No.3 herein and Abdul Razak, who died during the pendency of the suit and is being represented by his legal representatives appellants herein to remove the lock allegedly put by respondent No.3 on the suit premises along with materials dumped there.
According to the appellants, the trial Court allowed the execution application and the appeal and special leave petition filed by them were dismissed by the High Court and this Court respectively.
5 and 7 in place of the deceased.
Whether the plaintiffs prove that Sajeeda Razak, Matheen I Saint, Mohammad Arif Razak Ajaz Ahmed are legal representatives of deceased defendant No.2 impleaded in the suit as defendants 2 i , 2 ii , 2 v and 2 vii respectively.
The appellants pleaded that in the meeting held on 10.4.1990, members of the Family Council unanimously agreed for allotment of the properties and this was approved by the Court vide order dated 26.9.1990.
Thereafter, the appellant filed additional written statement asserting therein that the premises in question being residential and companymercial, the legal heir of the tenant companyld number be treated as a tenant as defined under Section 2 h of the Haryana Urban Control of Rent and Eviction Act, 1973 and that possession of such legal heir of the tenant would be that of a trespasser.
He largely denied the averments companytained in the plaint and pleaded that much before his death, Shri Rajaram D. Wagle had voluntarily surrendered the suit premises and thereafter, respondent No.3 was allowed to occupy the same for companyducting business of distribution of liquor.
The trial Court then referred to Order VI Rule 16 and held that respondent Nos.
Thereafter, the appellants produced their evidence.
1 and 2 by observing that joining of the widow, son and son in laws of the deceased will number prejudice the daughters and they will be entitled to take defence suitable to their plea.
1 and 2 further pleaded that the additional written statement is liable to be struck off because before filing the same, the appellants did number seek leave of the companyrt.
During the pendency of the petition, the tenant Musadi Lal died.
1 and 3 i.e., the widow and son of the deceased on the ground that the suit premises had been allotted to them in the inventory proceedings.
What relief?
After filing of the additional written statement, the trial Court framed the following additional issues Whether the plaintiffs prove that defendants illegally damaged and destroyed the two ramps existing adjacent to the entrance of the suit premises?
They also objected to the impleadment of appellant Nos.
3, 4 and 6 in the trial Court for grant of permanent injunction on the ground that respondent Nos.
In his written statement, respondent No.3 number only denied the averments companytained in the plaint that he had illegally taken possession of the suit premises after breaking open the locks put by respondent Nos.
A reference was also made to Special Civil Suit No.
Respondent Nos.
Respondent Nos.
As regards their plea that new or inconsistent case was sought to be set up by the appellants, the trial Court observed that this point can be companysidered at the time of deciding the case on merits.
By the impugned order, the learned Single Judge allowed the writ petition and held that the legal representatives of deceased defendant No.2 companyld have taken a plea which was appropriate to their character as legal representatives, but they were number entitled to take a plea derogatory to the plea already taken.
1 and 2 filed an application for impleading his widow appellant No.1 , son and three daughters appellant Nos.
The appeal and revision filed by the appellant were dismissed by the Appellate Authority and the High Court respectively.
The facts of Bal Kishans case were that respondent No.
89/99/B filed by appellant Nos.
First, the appellant had number been brought on record as a respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal.
1 and 2 have number been able to make out a case for striking off the additional written statement.
The trial Court dismissed the application of respondent Nos.
In the additional written statement, it was also averred that son in laws of late Abdul Razak have numberright, title or interest in the suit property and, therefore, they cannot be treated as his legal representatives.
2, 3 4 and 6 and two son in laws appellant Nos.
1 and 2 before the trial Court is that the suit premises were let out to their predecessor Shri Rajaram D. Wagle in 1951 by one Jussab Abdul Karim at a monthly rent of Rs.15/ which was subsequently increased to Rs.25/ that the owner cum landlord sold the premises to Abdul Kadar Haji Jaffar grandfather of appellant Nos.2, 3, 4 and 6 that Rajaram D. Wagle died on 29.4.1981 and after his death they have been using the suit premises for parking their cars that on 5.1.1992, respondent No.3 broke open the lock of the suit premises and dumped his goods i.e., boxes of liquor bottles, but the same were removed by the police on a companyplaint made by respondent No.1 in that regard that on 8.1.1992, respondent No.
The substance of the case set up by respondent Nos.
Appellant Nos.
By order dated 10.12.2003, the learned trial Court overruled all the objections raised by appellant Nos.
1 and 2 did number object to the taking on record of the additional written statement filed by the appellants or framing of the additional issues and led evidence, the recording of which was companypleted during 2006.
1 and 2 challenged the order of the trial Court in W.P. No.
Secondly, in the circumstances of this case, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller companyld number have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself.
While rejecting this plea, this Court held But in the instant case the appellant cannot claim the benefit of the above decision for two reasons.
What order?
The impleadment of appellant No.2 was also questioned on the premise that he has numberright in the suit property.
In furtherance of the observation made by the trial Court in the aforementioned order, the appellants filed additional written statement dated 3.3.2004, the sum and substance of which is that in the inventory proceedings No.80/1989/A held in the Court of Civil Judge Senior Division at Panaji after the death of Abdul Kadar Haji Jaffar and his wife, the suit property was allotted to their grand daughters appellant Nos.3, 4 and 6 because other heirs did number object to this.
3 again broke open the lock and forcibly occupied the suit premises and this time the police did number act on the companyplaint made by them.
He accordingly prayed for dismissal of the eviction petition.
An alternative prayer made by respondent Nos.
3, 4 and 6 and allowed the application of respondent Nos.
When the case was fixed for cross examination of appellant No.3, who is one of the witnesses cited by the appellants, respondent Nos.
1 and 2 filed application dated 9.10.2007 for striking off the additional written statement by asserting that the legal representatives of the deceased defendant No.2 do number have right under the Code of Civil Procedure CPC to file such written statement and, in any case, they cannot be allowed to raise new plea about their title to the suit premises.
Respondent Nos.
1 and 2 had number objected to the same.
1 therein filed a petition for eviction of the tenant by alleging that the latter had sublet the premises without his companysent.
In their reply, the appellants pleaded that the additional written statement was filed with a view to bring on record the facts relating to the inventory proceedings and the same cannot be struck off because the applicants have failed to make out a case for exercise of power by the companyrt under Order VI Rule 16 CPC.
The Rent Controller allowed the application.
3, 4 and 6 objected to the impleadment of the son in laws by stating that they are number Goans and are number governed by personal law relating to properties in Goa.
58/2008.
S. Singhvi, J. Leave granted.
The appellants are aggrieved by the order of the learned Single Judge of the Bombay High Court, Goa Bench whereby he allowed the writ petition filed by respondent Nos.
1 and 2 and granted their prayer for striking off the additional written statement filed by the appellants after their impleadment as legal representatives of defendant No.2 Abdul Razak.
Thereupon, the appellant Bal Kishan filed an application for being brought on record as legal representative of the deceased.
