Shri. Madhav Vinayak Deo, Smt. ... vs Dilip Madhavrao Vaidya And Ors
2022 Latest Caselaw 7111 Bom

                       (51)-RPCST-19605-18.doc.


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                               REVIEW PETITION STAMP NO.19605 OF 2018
                                                  IN
          Digitally


BALAJI
          signed by
          BALAJI
          GOVINDRAO
                              CIVIL REVISION APPLICATION NO.263 OF 2018
GOVINDRAO PANCHAL
PANCHAL   Date:
          2022.07.27
          10:34:02
          +0530

                       Shri. Madhav Vinayak Deo
                       Smt. Malti Madhav Deo
                       Through their legal heir
                       Jayashree Shripad Page                                   ..Petitioner
                             Versus
                       Dilip Madhavrao Vaidya & Ors.                            ..Respondents

                       Mr. R. S. Apte, Senior Advocate i/by S. C. Wakankar, for the
                       Petitioner.
                       None for the Respondents.

                                                        CORAM : NITIN W. SAMBRE, J.

DATE : 25th JULY, 2022

P.C.

1. This Review Petition is taken out by the Petitioner/original defendant/judgment debtor seeking review of the order dated 3 rd May, 2018 passed by this Court (R. G. Ketkar, J.), whereby the prayer of the non- applicant/plaintiff for eviction of the present applicant/defendant came to be allowed.

2. The facts which led to filing of the suit for eviction are as under :-

The suit property allegedly was owned by third BGP. 1 of 4 (51)-RPCST-19605-18.doc.

person and same was purchased by the Power of Attorney holder. The Power of Attorney holder on the date of filing of the suit claimed to be not the owner of the property but holding only Power of Attorney for the purpose of filing of the suit. The said RAE Suit No.638 of 1994 was dismissed on 5th May, 2015. The claim in the suit for eviction of the present applicant under Section 13(1)(l), 13(1)(e) and 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

3. The respondents feeling aggrieved, preferred appeal before the Appellate Bench of the Small Causes Court being Appeal No.26 of 2015. The said appeal came to be allowed vide judgment and order dated 15 th February, 2018.

4. The Appellate Bench of the Small Causes Court allowed the claim of the respondents for eviction on the ground of unlawful subletting under Section 13(1)(e) and non-user under Section 13(1)(k) of the Act.

5. The petitioner herein feeling aggrieved preferred Civil Revision Application No.263 of 2018 which was dismissed by this Court on 3 rd May, 2018, the judgment of which the petitioner is seeking review.

6. Mr. R. S. Apte, learned senior counsel appearing

BGP. 2 of 4 (51)-RPCST-19605-18.doc.

for the petitioner/tenant would urge that the suit came to be decreed after the summons was served on defendant No.2 on the Pune address but not on the suit address. It is alleged that in plaint defendant No.2 was alleged to be a sub-tenant of the defendant No.1. Since the suit property is located in the jurisdiction of this Court and the eviction is sought on the ground of subletting, which claim was accepted by the Court below, appellate Courts have failed to appreciate the said fact. His next contentions are, the Power of Attorney holder of the respondent/plaintiff has admitted that he has purchased the suit property in 2005, whereas the suit was initiated in 1994. In that view of the matter, suit at the behest of Power of Attorney holder ought not to have been held to be maintainable.

7. As far as the aforesaid contentions are concerned, the fact remains that this Court while dealing with on merits in the revision has recorded finding that the original plaintiff has established case of unlawful subletting and non-user.

8. The relationship interse between the defendant No.1 through his legal heirs and defendant No.2 sub-tenant is very much discussed.

9. Not only the aforesaid fact but the contention was also canvassed that the defendant No.2 had shifted to

BGP. 3 of 4 (51)-RPCST-19605-18.doc.

Pune and the notice was as such served at the Pune address. The said fact was duly appreciated and this Court has recorded finding as regards subletting and also the non-user after appreciating the evidence on record.

10. The Power of Attorney holder of the plaintiff has in categorical terms stated about the acquisition of title post filing of the suit, however, that by itself will not disqualify him to pursue the suit as an Power of Attorney holder of the plaintiff.

11. If the contentions raised by way of review petition are appreciated, what can be noticed is the petitioner is trying to prevail upon this Court to reappreciate the findings in the backdrop of pleadings. That being so, in absence of error apparent on the face of record, no case for entertaining the prayer for review is made out.

12. The review petition as such stands dismissed.

                                   [NITIN W. SAMBRE, J.]




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