Bombay High Court
Savitha Dinesh Shetty And Anr vs Smita Gajanan Sawant And Ors on 5 August, 2024
2024:BHC-AS:31298
Neeta Sawant 22-WP-4517-2023.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4517 OF 2023
Smt. Savitha D. Shetty and Ors. ....Petitioners
: Versus :
Smt. Smita G. Sawant and Ors. ....Respondents
_________________________________________________
Mr. Aniruddha Sapre a/w. Ms. Amrita Singh, for the Petitioners.
Mr. Sameer S. Kolge, for Respondent Nos.5, 6 and 7.
_________________________________________________
CORAM : SANDEEP V. MARNE, J.
Dated : 5 August 2024.
P.C. :
1) The above Writ Petition is filed challenging the order dated 16
March 2023 passed by the Appellate Bench of the Small Causes Court
allowing application at Exhibit-43 filed by the Applicants/Intervenors. The
Appellate Bench has permitted the intervenors to be added as Appellants in
the cause-title of the Appeal. The Original Appellant Nos.1 to 3
(Petitioners) are directed to be transposed as Respondent Nos.5 to 7.
2) I have heard Mr. Sapre, the learned counsel appearing for the
Petitioners and Mr. Kolge, appearing for Respondent Nos.5 to 7/Intervenors.
3) It is seen that R.A.E. Suit No. 2127/2214 of 2008 was filed by
the Plaintiff-landlord against the Defendant-Dinesh Bhoju Shetty. The suit
came to be decreed on 2 May 2015. Aggrieved by the decree, Defendant-
Dinesh Bhoju Shetty instituted Appeal No. 293 of 2015 before the Appellate
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Bench of the Small Causes Court. During pendency of the Appeal, it
appears that Dinesh Bhoju Shetty passed away and his legal heirs were
prosecuting the Appeal.
4) During pendency of the Appeal, three sisters of Dinesh Bhoju
Shetty, namely Vinaya, Namratha and Padmini filed R.A.D. Suit No.
990/2022 seeking declaration that they are also tenants in repsect of the suit
premises. On account of the declaration sought about their tenancy in
respect of the suit premises in the said R.A.D. Suit No.990/2022, the three
sisters were advised to file application at Exhibit-43 in pending Appeal filed
by Dinesh Bhoju Shetty which was being prosecuted by his legal heirs. It
appears that after filling of the said Intervention Application, the legal heirs
of Dinesh Bhoju Shetty entered into compromise with the landlords and
surrendered their tenancy rights and accepting third party incoming tenant.
On account of surrender of their tenancy rights, the heirs of the Appellant-
Dinesh Bhoju Shetty, no longer remained interested in prosecuting the
Appeal and accordingly filed application at Exhibit-48 for withdrawal of the
Appeal.
5) If the Original Appellants were to be permitted to withdraw the
Appeal, the decree passed on 2 May 2015 in R.A.E. Suit No. 2127/2214 of
2008 would have attained finality and in that event, R.A.D. Suit
No.990/2022 filed by Vinaya, Namratha and Padmini would have become
infructuous. In order to save R.A.D. Suit No.990/2022 from becoming
infructuous, it was necessary that the challenge to the decree in Appeal No.
293/2015 was kept alive. For that purpose, the Appellate Bench has not only
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allowed Vinaya, Namratha and Padmini to intervene in the Appeal as
Appellants but has infact directed transposition of the Original Appellant
Nos.1 to 3 (heirs of Dinesh Bhoju Shetty) as Respondent Nos.5 to 7. Mr.
Sapre has raised objection to such transposition on the ground that the
original application at Exhibit-43 did not even contain a prayer for
transposition. In my view, such transposition was necessitated on account of
surrender of tenancy on the part of Appellant Nos.1 to 3 after filing of
application at Exhibit-43. The Appellate Bench thus faced a situation where
the Original Appellant Nos.1 to 3 no longer wanted to prosecute the Appeal
and wanted to withdraw the same. This is the reason why Original Appellant
Nos.1 to 3 have been directed to be transposed as Respondent Nos.5 to 7.
Now, Vinaya, Namratha and Padmini would carry Appeal No. 293/2015 and
prosecute the same. I therefore do not find any patent error in the order
passed by the Appellate Bench, so far as impleadment of the sisters and
transposition of Original Appellant Nos.1 to 3 is concerned.
6) Mr. Sapre would raise a grievance with regard to the non-
decision of application at Exhibit-47 filed by Original Appellant Nos.1 to 3 for
withdrawal of the amount of compensation deposited during pendency of
Appeal as per the judgment of the Apex Court in M/s. Atma Ram
Properties (P.) Ltd. V/s. M/s. Federal Motors Pvt. Ltd. 1 It appears that
Original Plaintiff consented for withdrawal of 50% of the amount of
compensation deposited during pendency of the Appeal and the balance 50%
was to go to the Original Plaintiffs. The Petitioners are agreeable to this
arrangement. It appears that Petitioners have already surrendered the
1 (2005) 1 SCC 705
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tenancy on 6 September 2022 and handed over possession of the suit
premises to the Plaintiffs/landlords. If landlords have no objection for
withdrawal of the entire amount of compensation and divide the same
equally between themselves and Original Appellant Nos.1 to 3, I do not see
any difficult why such withdrawal cannot be ordered. The sisters also do not
have any objection to this arrangement. To this limited extent, the order
dated 16 March 2023 would warrant slight modification.
7) The Writ Petition is accordingly disposed of by passing the
following order :
(i)The order of the Appellate Bench to the extent of allowing
application at Exhibit-43 and dismissing Application at Exhibit-48 is
not disturbed.
(ii)The order of the Appellate Bench to the extent of keeping
application at Exhibit-47 pending is set aside.
(iii) The application at Exhibit-47 filed by the Petitioners is allowed in
terms of the prayers made therein.
8) It is however clarified that mere impleadment of the sisters in Appeal
No.4517/2023 shall not be construed to mean that their claim for tenancy is
upheld by this Court.
Digitally
signed by
NEETA [SANDEEP V. MARNE, J.]
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2024.08.07 ___Page No.4 of 4___
11:10:41
+0530 5 August 2024
