Bombay High Court
Rajnikant Gandhi vs Smt. Shantiben Purshottam Kakad ... on 6 July, 2022
Bench: Nitin W. Sambre
(5)-CRA-284-22.doc.
BHARAT
DASHARATH
PANDIT
Digitally signed
by BHARAT
DASHARATH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PANDIT
Date: 2022.07.08
11:10:06 +0530
CIVIL REVISION APPLICATION NO.284 OF 2022
Rajnikant Gandhi .....Applicant
Versus
Smt. Shantiben Purshottam Kakad
Since deceased through legal heirs
Anil Purshottam Kakad and Ors. ..Respondents
Mr. Vivek Walavalkar a/w Sameer Bhalekar i/by Vidita S. Bhalekar,
for the Applicant.
CORAM : NITIN W. SAMBRE, J.
DATE : 6th JULY, 2022
P.C.
1] Heard.
2] This Revision is by Defendant No.2 in RAE Suit No.217/323 of
2009. Status of the Applicant/Defendant in the said suit is that of
sub-tenant. Applicant is questioning judgment and decree dated
4/5/2022 passed by the Appellate Bench of the Small Causes Court
in Misc. Appeal No.338/2017 arising out of above referred suit.
Vide said impugned judgment, Appellate Bench of the Small Causes
Court, subject to costs of Rs 7000/- set aside order of abatement
dated 16/10/2015 passed below Exhibit-1 in the aforesaid suit,
thereby permitting to bring on record the appellants therein i.e.
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(5)-CRA-284-22.doc.
Respondent Nos. 1 to 6/original Plaintiffs.
3] Application Exhibit-15 was preferred in the aforesaid suit by
the legal representatives of the original Plaintiff for condonation of
delay, setting aside abatement and for bringing their names as legal
representatives of the Plaintiff on record. Said Application was
rejected on 5/10/2013. As a sequel of above, suit came to be
dismissed.
4] Plaintiff feeling aggrieved preferred Revision questioning
order of dismissal of the suit. However, Appellate Bench vide order
dated 23/6/2015 rejected prayer for stay to the order of dismissal of
the suit. As a sequel, suit came to be dismissed as abated and
accordingly was disposed of on 16/10/2015. The proposed legal
representatives of original Plaintiff i.e. Respondent Nos. 1 to 6
feeling aggrieved preferred Appeal No.338 of 2017 questioning
order of dismissal of suit.
5] In the said Appeal, since original Respondent No.1 i.e.
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(5)-CRA-284-22.doc.
principal tenant was not served, permission was granted to serve
him by paper publication. The said order was neither complied with
nor proceedings were attended. As such, Marji Application No.63 of
2016 was dismissed as against Defendant No.1 i.e. principal tenant
and his proposed legal representatives. As far as said Marji
Application No.63 of 2016 is concerned, same was allowed as
against present Applicant sub-tenant vide order dated 29/8/2017.
As a sequel of above, delay caused in filing of appeal was condoned,
subject to costs.
6] Subsequent thereto in the pending Appeal vide Exhibit-10,
Application was taken out for effecting service of notice of appeal on
the Respondents by way of paper publication. Said Application was
rejected in view of earlier order passed in Marji Application on
18/4/2017. As a sequel of above, Appeal came to be dismissed
against the principal tenant i.e. Defendant No.1 and his proposed
legal representatives on 2/12/2019.
7] In the aforesaid backdrop, Misc. Appeal No.338 of 2017 was
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(5)-CRA-284-22.doc.
pursued by Respondent Nos. 1 to 6, the legal representatives of
original Plaintiff which came to be allowed by the impugned order
dated 4/5/2022 whereby delay was condoned, abatement was set
aside and suit was restored to the file permitting legal
representatives of Plaintiff to pursue the same.
8] In this backdrop, contentions of Counsel for the Applicant are,
even if suit is restored to the file, same came to be restored only to
the extent of claim against the present Applicant/sub-tenant against
whom case is that of subletting. He would claim that suit is brought
in action on the ground of non-user, change of user and subletting.
Once suit is dismissed against the principal tenant, the individual
cause against the present Applicant as that of sub-tenant of
principal tenant i.e. Defendant No.1 cannot be entertained and as
such, order impugned is liable to be quashed and set aside. So as to
substantiate his claim he has drawn support from the judgment of
the Apex Court in the matter of Hiralal Vallabhram vs. Kastorbhai
Lalbhai and Ors reported in 1967 (3) SCR 343 . Extract from para 7
of the said judgment reads thus:-
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(5)-CRA-284-22.doc.
"7...........It is not disputed that a landlord
cannot sue a sub-tenant alone for eviction; he
has to sue the tenant, and if he succeeds
against the tenant, the sub-tenant would be
ejected along with the tenant-in-chief unless
he can take advantage of any provision of the
Act. But if the tenant-in-chief is not ordered
to be ejected and there is no such order by
the appellate court, it follows that the
appellate court had no jurisdiction to order
the ejectment merely of the sub-tenant
assuming that the appellant was a sub-
tenant........."
9] Since there appears to be prima facie substance in the
contention of Counsel for the Applicant, issue notice to
Respondents, returnable on 17th August, 2022.
10] In addition to Court notice, Applicant is at liberty to serve the
Respondents by private notice through registered AD/Speed Post
and file affidavit of service before the returnable date.
11] Until further orders, the suit proceedings shall remain
stayed.
[NITIN W. SAMBRE, J.]
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