Bombay High Court

Bee Mohammed ... vs Khalil Ahmed Fazandar (Dec.) Thr. ... on 16 June, 2023

Bench: Madhav J. Jamdar

2023:BHC-AS:16182
                                                             911 CRA 202.23 with IA 3503.23.doc


                    Dusane

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                         CIVIL REVISION APPLICATION NO.202 OF 2023
                                           WITH
                            INTERIM APPLICATION NO.3503 OF 2023


                    Bee Mohammed Fatima                      ...Applicant/
                                                             Ori. Defendant
                            V/s.
                    Mr. Khalil Ahmed Fazandar & Ors.         ...Respondent/
                                                             Ori. Plaintiff (deleted
                                                             since deceased)
                    1A) Naushin Khalil Fajandar,
                    wife of Late Respondent & Ors.           ...Respondents


                    Mr. M.A. Vaid a/w Ms. Vidhya N. Shet i/by Vaid &
                    Associates for Applicant.
                    Mr. Mohanish S. Ghatge for Respondents.
                    Mr. Qureshi Salim Mohammed Umar, C.A. of the
                    Applicants present.

                                               CORAM: MADHAV J. JAMDAR, J.

DATE: 16th June 2023

P.C.:

1. Heard Mr. Vaid alongwith Ms. Vidhya N. Shet, learned

Counsel appearing for the Applicant and Mr. Ghatge, learned

Counsel appearing for the Respondents.

2. The challenge in this CRA is to the legality and validity of

the judgment and decree dated 16th February 2023 passed by

911 CRA 202.23 with IA 3503.23.doc

the learned Appellate Bench of Small Causes Court, Mumbai in

(A-1) Appeal No. 422 of 2015 as well as to the judgment and

decree dated 30th September 2015 passed by the learned

Judge, Small Causes Court, Mumbai in R.A.E. Suit No. 624/931

of 2009.

3. The learned Trial Court has decreed the suit on the ground

of bonafide requirement. The learned Appellate Court confirmed

the decree on the ground of bonafide requirement and also

granted decree on the ground of subletting.

4. Learned Counsel appearing for the Applicant argued Civil

Revision Application for some time. However, when this Court

expressed that the decree passed by both the Courts is on the

basis of material on record and therefore the Civil Revision

Application deserves to be dismissed, learned Counsel appearing

for the Applicant on the instructions of Mr. Qureshi Salim

Mohammed Umar i.e. the constituted attorney of the

Applicant Bee Mohammed Fatima gave instructions to

withdraw the Civil Revision Application.

5. The said Qureshi Salim Mohammed Umar, who is

personally present in the Court stated that the instructions to

withdraw the CRA has been given by him as constituted

attorney of Bee Mohammed Fatima i.e. the Applicant as well

911 CRA 202.23 with IA 3503.23.doc

as on his own behalf.

6. In view of above certain facts are relevant. As far as

ground of subletting is concerned, it is specifically mentioned

in the plaint that the present Applicant i.e. the Defendant-Bee

Mohammed Fatima has shifted to her hometown at Bangalore

about 3 years back and has subletted the suit premises to

some third party. The said suit was filed in 2009. Therefore in

effect which it is the contention of the Respondent-Plaintiff,

that the said Applicant has shifted to Bangalore permanently

in or about 2006. In the said suit, the written statement was

filed by the Applicant i.e. the Defendant Bee Mohammed

Fatima through her constituted attorney i.e. Qureshi Salim

Mohammed Umar. In the said written statement in paragraphs

5 and 6, it has been denied that the Defendant has left for

Bangalore or Mangalore about 3 or 4 years ago and that the

Defendant continues to be in possession of the suit premises.

7. It is significant to note that the Defendant has not

entered into the witness box and the evidence has been led

on behalf of the Defendant by her constituted attorney said

Qureshi Salim Mohammed Umar. It is further significant to

note that in the cross-examination, the said constituted

attorney has admitted that the Defendant resides at

911 CRA 202.23 with IA 3503.23.doc

Mangalore and she left Mumbai in or about 2007-2008. The

relevant portion of the cross-examination is reproduced

hereinbelow for ready reference:

"R.A.E. Suit No.624/931 of 2009 Plaintiff present.

Shri. Vaid, Advocate for D.W. 1 present.

D.W.1 Qureshi Salim Mohammed Umar on S.A.

Cross examination of D.W.1 on fresh oath by Shri. S.J. Ghatge, Advocate for the Plaintiff.

"I am acquainted with defendant since my childhood as husband of defendant was friend of my father. I educated a study of graduation in commerce faculty. I completed my graduation in the year 1998. Presently I reside at 306, K.D. Tower, Nagpada, Mumbai East. Since last one year, I am residing there at and prior to that, I was residing at 11, Bora Estate, First Floor, Nal Bazar, Mumbai. I was residing there since my childhood up to last year. Defendant presently reside at Mangalore she left Mumbai probably in the year 2007-2008. Defendant left along with her husband, her children i.e. her two sons reside at abroad. Witness volunteers that defendant used to visit Mumbai frequently. I cannot tell the exact address of defendant of Mangalore. The defendant did nothing there at and her husband is also retired. Suit premises was let out to defendant for business purpose. Presently myself alongwith some staff members are looking after said business. I handling the business of defendant since the year 2009 onwards. There is no agreement in between myself and defendant regarding handling her business."

(Emphasis added)

8. Thus, this is the case where the Defendant as well as her

constituted attorney who has verified the written statement has

come out with totally false case in the written statement. However,

911 CRA 202.23 with IA 3503.23.doc

as the Applicant i.e. original Defendant as well as her constituted

attorney Mr. Qureshi Salim Mohammed Umar have decided to

accept the eviction decree and withdrawing the CRA, the said

withdrawal is allowed and CRA is dismissed.

9. Learned Counsel appearing for the Applicant submitted that

the Applicant i.e. the Defendant has shifted to Mangalore in or

about 2007 and the constituted attorney Qureshi Salim Mohammed

Umar is exclusively in possession of the suit premises since then. It

is submitted by the learned Counsel appearing for the Applicant

that the said constituted attorney Mr. Qureshi Salim Mohammed

Umar will handover the possession of the premises to the

Respondent on or before 30th June 2025. The said constituted

attorney Mr. Qureshi Salim Mohammed Umar is present in the

Court and his written affidavit-cum-undertaking dated 15th June

2023 is tendered in Court. The said undertaking is taken on record

and marked 'X' for identification. The said undertaking reads as

under:

"AFFIDAVIT CUM UNDERTAKING I, Qureshi Salim Mohammed Umar, the constituted attorney of the Appellant, aged 46 years, having address at Shop No. 5-E, Mezzanine Floor, Fazandar Chambers, 25, Masjid Cross Lane, Mumbai- 400 003, do hereby solemnly affirm as under:

1. I say that I am giving this undertaking for and on behalf of the Applicant- Bee Mohammed Fatima and myself being constituted attorney of the Defendant before this Hon'ble Court.

2. The Appellant and myself her Constituted attorney undertake to vacate and handover quiet, vacant and peaceful

911 CRA 202.23 with IA 3503.23.doc

possession of the suit premises on expiry of period of 2 (two) years to the Respondents from the date of order of this Hon'ble Court to that effect.

3. I and Appellant undertake to abide by all such terms and conditions as may be imposed by this Hon'ble Court.

         Solemnly affirmed at Mumbai,           )
         This 15thday of June, 2023             )
         Identified by me,

                                           Qureshi Salim Mohammed Umar
         Advocates for the Appellant          Constituted attorney of the
                                                     Appellant"
                                                               (Emphasis added)

10. Mr. Qureshi Salim Mohammed Umar, constituted attorney of

the Applicant also personally gives undertaking to the Court that he

will vacate the suit premises on or before 30th June 2025 and

handover possession of the same to the Respondent. Mr. Qureshi

also states that he will pay Rs.10,000/- per month (i.e. the amount

of compensation fixed by the Appellate Court during the pendency

of the appeal) plus Rs.150/- towards standard rent to the

Respondent No. 1A Naushin Khalil Fajandar on or before 10th day

of each month. The said undertaking given personally by Qureshi

Salim Mohammed Umar is accepted as undertaking given to this

Court.

11. For the above reasons, the CRA is dismissed as withdrawn.

However, the Applicant-Bee Mohammed Fatima as well as

constituted attorney of the Applicant i.e. Qureshi Salim

911 CRA 202.23 with IA 3503.23.doc

Mohammed Umar are granted time to vacate the suit

premises on or before 30th June 2023.

12. It is made clear that if the Applicant as well as her

constituted attorney, Qureshi Salim Mohammed Umar fails to

abide the undertaking given to this Court, then in addition to

the other actions, both of them will be liable for action of

contempt.

13. It is made clear that if the Applicant as well as said