Sajjadi Kharim And Ors vs The Board Of Trustee Of The Port Of ...
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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

              CIVIL REVISION APPLICATION NO.212 OF 2016

Sajjadi Kharim & ors                                   .. Applicants
     Versus
The Board of Trustee of the Port of Bombay             ..Respondent

Mr. R. M. Haridas for the Applicants.
Mr. Dhruv Gandhi a/w Mrs. N D. Motiwalla i/b. Motiwalla & Co. for
the Respondent.

                               CORAM : NITIN W. SAMBRE, J.

                               DATED :       18th OCTOBER, 2022
P.C.:

1. The applicants / defendants have invoked the revisional

jurisdiction of this Court questioning the judgment and decree

delivered in L.E. & C. Suit No.537/562 of 1986 whereby the eviction

of the applicants was ordered vide judgment and order dated 26 th

July, 2006 which was confirmed in Appeal No.518 of 2006 delivered

on 20th January, 2016 by the Appellate Bench of the Small Causes

Court at Bombay.

2. The case of the applicants / defendants is that the applicants

occupying around 500 square meters of premises owned by the

respondent / Trust. According to them, they were served with the

notice of arrears which was to the tune of Rs.23,424.50 for having

defaulted in paying the said rent for a period from 1 st June, 1986 to

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30th June, 1986. It is claimed that in the suit proceedings, the arrears

were based on the unreasonable demand of enhanced rent.

3. While questioning both the orders, Mr. Haridas, learned

counsel appearing for the applicants-tenants would urge that notice

dated 26th August, 1985 which is at "Exhibit D" is bad in law, as the

same was issued without any resolution of the respondent - Trust. His

further contentions are that the respondent - plaintiff has enhanced

the rent unilaterally without there being any lawful basis for the

same. Drawing support from the judgment of Apex Court in the

matter of Dwarkadas Marfatia and Sons vs. Board of Trustees

of The Port of Bombay1 , he would urge that the respondent -

plaintiff being instrumental in the said proceeding is required to

conduct themselves reasonably. He would further urge that long

standing possession of the applicants which is from more than 50

years, and the fact that the enhancement is without there being any

legal basis, the notice has to be declared bad in law. He would

further urge that the respondent cannot left the applicants high and

dry particularly when they have ample space available there and as

such the applicants would have been accommodated in the alternate

place. He would further urge that the issue is also covered by the

judgment of this Court in the matter of Lockwood Industrial and

1 1989 AIR (SC) 1642

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Transport Services, Bombay vs. Victoria Timber Supplying

Company, Bombay2. Drawing support from the observations made

in paragraph 15, the learned counsel would urge that Article 14

equally applies to the non-applicant and that being so it was the

lease that was implied, the non-applicants was to be conducted

reasonably and in transparent manner.

4. While countering the aforesaid submission, the learned counsel

for the respondent-plaintiff would urge that the notice dated 26 th

August, 1985, issued under Section 106 of the Transfer of Property

Act, 1882 at "Exhibit D" was duly proved. According to him, the

applicants have defaulted in making the payment of rent for a period

of December 1982 and subsequent thereto from 1 st January, 1986 to

30th June, 1986. He would further urge that the total outstanding of

arrears as against the notice being at "Exhibit D" was to the tune of

Rs.23,424.50/- so that is around Rs.4000/- per month for an area of

500 sq. ft. in the city of Bombay. His further contentions are that it is

nowhere provided in the provisions under Section 106 of the Transfer

of Property Act, that the notice must contained the reasons.

According to him, already the notice mentions that the eviction of

the applicants was sought on the ground of failure to clear arrears of

rent. He would further urge that neither any ulterior motive was

2 2010 (1) Mh.L.J.

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addressed before the Court below and for the first time, the

applicants raised the said issue before this Court. Drawing support

from the Judgment of the Apex Court in the matter of Jiwan Dass

vs. Life Insurance Corporation of India and anr 3, more

particularly paragraph 4, he would try to substantiate the aforesaid

contentions.

5. The last submission is that the present revision application

which is against the concurrent findings, does not contained any

error of jurisdiction, as such the Civil Revision Application is liable to

be dismissed.

6. I have appreciated the said submission.

7. Accordingly, the Civil Revision Application is dismissed.

8. 12 weeks time granted.

                                             (NITIN W. SAMBRE, J.)




3    1994 Supp (3) Supreme Court Cases 694


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