Adil Pestonji Elavia vs Feroze Pestonji Elavia
2002 Latest Caselaw 98 Bom

JUDGMENT

J.G. Chitre, J.

1. Respondent absent. None present for him. The petition pertains to the year 1988. Therefore, treating the respondent as ex parte, this petition is being heard.

2. The suit property is a tenement in Cusrow Baug situated in Colaba area owned by R.N. Wadia Trust. In the year 1971, as the record shows, the respondent Feroze Pestonji Elavia had applied to get the said tenement as licensee by submitting an application in which it was specifically mentioned that he was to reside in the said tenement along with his mother and brother Adil who happens to be the present petitioner. Three of them i.e. respondent No. 1, the present petitioner and their mother resided in the said tenement till 1973 but on account of the marriage of Firoze (respondent 1), his wife entered in the family but unfortunately she was not able to have good relations with mother-in-law. It may be also that the mother-in-law was not able to have good relations with daughter-in-law. The result was one and the same that there were quarrels between the family separating the petitioner and his mother on one side and Firoze and his wife on the other side. For about four years, the petitioner and his mother resided in Malcom Baug at Jogeshwari. Firoze and his wife had gone to Iran and during his absence, the present petitioner and his mother were staying in the suit premises. After finding that the atmosphere in Iran was not favourable for residence, Firoze and his wife returned back and again quarrel started revolving around the said suit premises.

3. Firoze contended that he happens to be a statutory tenant of the suit tenement. Same is the contention of Adil, the present petitioner. The matter went to the Small Causes Court where the trial Court decided that issue in favour of Firoze holding that he alone was the statutory tenant of the suit tenement. The trial Court held that present petitioner Adil went to Malcom Baug, Jogeshwari to stay along with his mother, which was his act of abandoning the suit premises and abandoned his rights as tenant in respect of the suit premises. The trial Court held that the application was preferred by Firoze for getting the suit tenement on licence and when the suit tenement was allotted to his name, he acquired the right of licensee initially for residing in the suit tenement along with his brother and mother and they were strengthened in the right of tenant on account of his status being converted into deemed tenant. The trial Court held that the documentary evidence was showing all along that the said tenement was initially allotted to Firoze as licensee and thereafter by process of law Firoze became the deemed tenant of the said tenement. The learned trial Court dismissed the claim of the present petitioner as co-tenant of the said tenement and passed a decree in favour of the present respondent allowing him to evict the present petitioner. The said judgment and decree was confirmed in appeal by Division Bench of the Small Causes Court and both the judgments are being assailed by this writ petition.

4. Mr. Nadkarni, Counsel appearing for the petitioner, submitted that the Court did not have the jurisdiction at all to entertain and decide the said suit. Unfortunately, the said point was not agitated as required by law before the trial Court because when the issues were settled, no objection was taken to those issues which were settled nor a request was made to the Court to settle an issue on the point of jurisdiction. Leave aside that, it was necessary for the present petitioner to move an application making a prayer to the trial Court to decide the point of jurisdiction as a preliminary issue, but it was not done. Thus, two opportunities were lost. One opportunity of raising this point by moving an application and asking the Court to adjudicate on it as preliminary issue. The second opportunity was lost when the issues were settled and no objection was taken to the settling of those issues or no request was made to the Court to settle an additional issue of jurisdiction.

5. At the time of appeal also, no request was made specifically by moving an application to settle the additional issue of jurisdiction. The suit was contested without such issue being framed. The appeal was argued without there being an additional issue on this point.

6. Now, the petitioner cannot be permitted to agitate on the point of jurisdiction because it is well settled that even in cases of second appeals, the points which were not raised before the trial Court or the Appellate Court could not be raised in the High Court. Here, in this case, the petitioner is making a prayer for issuing a writ of certiorari in context with the jurisdiction of this Court in view of Article 227 of the Constitution of India. When the prayer is made to this Court for exercising the jurisdiction of superintendence in context with Article 227 of the Constitution of India, this Court will have to think seriously whether such interference is really called for and whether it is in the interest of justice. When the petitioner had the opportunity to raise the objection to the "jurisdiction of the Court" but waived it. When that happens to be the conduct of the litigant, he is not entitled to dent the jurisdiction of trial Court and Appellate Court by such writ petition.

7. When there are concurrent findings of two courts below and that too arrived at by process of sound reasoning and by process of appreciation of evidence in a lawful way, this Court finds no ground for interference. Therefore, the writ petition stands dismissed with costs. Rule stands discharged.