Shri Keshav Dnyunoba Paigude vs Shri Shrikant Baburao Dhamale
2015 Latest Caselaw 14 Bom

                                                        1              sa431.93.odt

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         (CIVIL APPELLATE JURISDICTION)




                                                                                     
                                                             
                           SECOND APPEAL NO.  431 OF 1993


               Saraswatibai Dnyanoba Paigude,




                                                            
               since deceased by her legal heir,
               Keshav Dnyanoba Paigude, adult,
               Occ. Service, residing st 444,
               Shaniwar Peth, Pune-411030.  ....                        APPELLANT




                                              
                                                                       (Org. Plaintiff)
                            ig       ...VERSUS...
                          
               Shrikant Baburao Dhamale,
               R/o. At Post Shere,
               Tah. Mulshi, Distt. Pune,
               now residing at 444,
      

               Shaniwari Peth, Pune-411 030..     ......      RESPONDENTS
                                                          (Org. Defendants)
   



     -------------------------------------------------------------------------------------------
     Shri  Madhav Jamdar, Advocate, for appellant 
     None for respondent.





     -------------------------------------------------------------------------------------------

                             CORAM: R. K. DESHPANDE, J.

th DATE : 6 AUGUST, 2015 .

ORAL JUDGMENT

1] The trial Court passed a decree in Regular

Civil Suit No. 1037 of 1981 on 16.12.1987, directing

the defendant to hand over the vacant possession of

the room prescribed in para 1 of the plaint to the

2 sa431.93.odt

plaintiff. The lower appellate Court has reversed the

decree passed by the trial Court on 20.04.1992 in

Regular Civil Appeal No. 247 of 1988. Hence, the

original plaintiff is before this Court in this second

appeal.

2] The plaintiff came before the Court with a

case that her husband Dnyanoba Paigude was the

tenant in respect of the suit property and the

defendant was a son of step daughter of Dnyanoba.

The defendant was permitted to reside in the suit

property as a gratuitous licensee. He assumed the

possession of the property and did not vacate it,

therefore, the suit was filed for recovery of

possession. The defendant denied the claim of the

plaintiff and submitted that he himself was the tenant

in respect of the suit property being the family

member of Dnyanoba Paigude.

3] The trial Court recorded the finding that

the defendant was the trespasser and he failed to

establish that he was residing with his mother in the

suit property prior to the death of the plaintiff's

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husband, as the family member. The lower appellate

Court held that the dispute is regarding the status as

a tenant and therefore, the civil Court had no

jurisdiction to entertain, try and decide the suit as the

question involved was required to be decided by the

Court of Small Causes under the Provincial Small

Cause Court Act.

4]

On 4th January, 1994, this Court admitted

the second appeal and the order passed is

reproduced below;

This appeal involves substantial question of law as to interpretation and application of

Section 5(11)(c) of the Bombay Rent Act, 1947, having regard to the facts of the case. This Appeal also involves another substantial question of law as to the jurisdiction of Civil Court to try the suit

where on the basis of averments made in the plaint, the Defendant is alleged to be a trespasser. The Appellate has formulated the substantial question of law in Memorandum of Appeal vide ground Nos. 1, 2, 3 and 7.

Appeal is therefore admitted.

5] Since the question involved is about

interpretation of Section 5(11)(c) of the Bombay

Rents, Hotel and Lodging House Rates Control Act,

1947, the relevant extract of the said provision is

4 sa431.93.odt

reproduced below.

"5. Definitions .

In this Act unless there is anything repugnant to the subject or context, - .....

.....

(11) "tenant" means any person by whom or on whose account rent is payable for any premises and includes, -

.....

.....

(c)(i) in relation to any premises let for resident, when the tenant dies, whether the death has occurred before or after the

commencement of the Bombay Rents, Hotel and Lodging House Rates Control (amendment) Act, 1978, any member of the tenant's family residing with the tenant at the time of his death or, in the absence

of such member, any heir of the deceased tenant, as may be decided in default of

agreement by the Court".

In terms of Section 5(11)(c)(i) reproduced above, in a

case where the tenant dies, any member of the

tenant's family residing with him at the time of his

death, becomes original tenant. If such family

member is found to be residing with the original

tenant, the question of other legal heirs of the

deceased becoming tenant, would not, in such case

arise for the reason that such person would be

entitled to become a tenant in the absence of any

5 sa431.93.odt

family member of the original tenant.

6] In the present case, the original tenant

was Dnyanoba, who died on 08.09.1975. The Plaintiff

is the widow of Dnyanoba and it is, therefore,

presumed that she was staying along with Dnyanoba

at the time of his death in the suit property and this

fact is not disputed. The defendant is the son of step

daughter of the tenant Dnyanoba, even if considered

to be the heir, shall not become a tenant. In view of

this, even if the evidence is brought on record to

show that the defendant was staying along with the

deceased at the time of his death, he would not

become a tenant in respect of the suit property. The

lower appellate Court has, therefore, committed an

error of law in holding that the defendant had

become the tenant in respect of the suit property

under Section 5(11)(c)(i) of the said Act and

therefore, the jurisdiction of the civil Court to

entertain, try and decide the suit was completely

barred and that the suit was required to be filed in

the Small Causes Court under the provisions of the

Provincial Small Cause Court Act, 1880. The question

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of law framed is, therefore, answered accordingly.

7] The necessary consequence of answering

the aforesaid question of law is that the judgment

and order passed by the lower appellate Court on

20.04.1992 in Regular Civil Appeal No. 247 of 1988

cannot be sustained. It is, therefore, quashed and set

aside and the decree passed by the trial Court ig on

16.12.1987 in Regular Civil Suit No 1037 1981 is

restored. No order as to cost.

Consequently, the civil application, if any, does not

survive.

JUDGE

Rvjalit