Bombay High Court
Zaraine Rustam Irani And Ors vs Patricia (Patsy) Philomena Fonseca And ... on 9 August, 2024
2024:BHC-AS:32987
Megha 2_cra_327_2018_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.327 OF 2018
WITH
INTERIM APPLICATION NO.15075 OF 2023
IN
CIVIL REVISION APPLICATION NO.327 OF 2018
Zaraine Rustam Irani and Ors. ...Applicants
V/s.
Patricia (Patsy Philomena Fonseca and
Ors. ...Respondents
____________________________________________________________
Mr. Mandar Limaye i/b. Mr. Saurabh Oka for the Applicants.
Mr. Reshant Shah i/b. M/s. Lex Conseiller for Respondent Nos.1, 2 and 4.
CORAM : SANDEEP V. MARNE, J.
Dated : 9 August 2024.
P.C. :
1) Revisionary jurisdiction under Section 115 of the Code of Civil
Procedure, 1908 is invoked for setting up a challenge to the decree dated 14
November 2006 passed by the Small Causes Court at Mumbai in R.A.E. &
R. Suit No.562/3095 of 1976. Decree of the Small Causes Court has been
confirmed in appeal by the Appellate Bench by dismissing A-1 Appeal
No.34 of 2007 vide judgment and order dated 4 May 2018, which is also
subject matter of challenge in the present Revision Application.
Digitally
signed by
MEGHA
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
2024.08.17
17:18:46
+0530
2) Plaintiff-Peter H. Fonseca instituted R.A.E. Suit No. 562
/3095 of 1976 seeking recovery of suit premises being Shop on the ground
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floor of the building named Mary Villa, 91 Hill Road, Bandra, Mumbai 400
050. Plaintiff contended that one Khodadad Irani and Behram Irani were
tenants in respect of the suit shop and that Defendant No. 10 was an
unlawful occupant therein. Plaintiff further contended that Defendant Nos.
11 to 14 were wrongfully and illegally inducted in the Suit premises. The
heirs of Khodadad Irani were impleaded as Defendant Nos.1 to 8, Behram
Irani was impleaded as Defendant No.9 and Rustom Irani was impleaded as
Defendant No.10 to the Suit. Defendant Nos.11 to 14 were described as
illegal occupants inducted by Defendant Nos.1 to 10 in the suit shop.
3) The Trial Court framed the issue of tenancy rights of
Defendant No.10 as well as about entitlement of Plaintiff to recover
possession of the suit premises on the grounds of default in payment of rent
and subletting by committing breach of the terms of the tenancy. Claim of
tenancy of Defendant No.10 was upheld. Similarly ground of default in
payment of rent by Defendant No.1 to 9 as well as subletting premises by
Defendant No. 1 to 10 came to be upheld. The Trial Court accordingly
proceeded to decree the Suit vide judgment and order dated 14 November
2006.
4) The Appellate Bench of the Court of Small Causes however,
did not maintain the ground of default in payment of rent and reversed the
finding of the Trial Court in that regard. The Appellate Bench however,
concurrently held that there is subletting in respect of the suit premises.
Therefore, the decree for eviction is not disturbed by the Appellate Bench
while dismissing the Appeal filed by the heirs of Defendant No.10. Only the
heirs of Defendant No. 10 have filed the present Revision Application
challenging the decrees passed by the Trial Court and its Appellate Bench.
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5) I have heard Mr. Limaye, the learned counsel appearing for the
Revision Applicants. He would submit that the Suit filed by the Plaintiffs
was clearly outside the jurisdiction of the Small Causes Court under Section
41 of the Presidency Small Cause Courts Act, 1888 (PSCC Act) since the
Plaint proceeded on a specific pleading that Defendant No.10 was unlawful
occupant of the suit premises. Mr. Limaye in this regard invites my attention
to pleadings in paragraph 1 of the Plaint. He also relies upon notice dated 11
January 1974 served by Plaintiff in which again Defendant No.10 was
described as unlawful occupant in respect of the suit premises. Mr. Limaye
would further submit that Plaintiff continued the assertion of nature of
occupation by Defendant No.10 as a trespasser throughout the pendency of
the proceedings. In this connection, he would take me through the evidence
led on behalf of the Plaintiff, in which again, Defendant Nos.10 to 14 are
described as unlawful occupants in respect of the suit premises. Inviting my
attention to the affidavit in reply filed in the present revision application on
19 November 2018, Mr. Limaye would submit that even in the said
affidavit, Defendant No. 10 was described as unlawful occupant of the suit
premises. Mr. Limaye would contend that once Plaintiff proceeded on a
specific pleading as well as evidence that Defendant No.10 is an unlawful
occupant, the suit for eviction against Defendant No.10 could not have been
filed before the Small Causes Court under Section 41 of the PSCC Act. He
would submit that Court must go into the averments made in the Plaint and
the defence raised by Defendant No.10 cannot be considered for the
purpose of deciding the question of jurisdiction. In support of his
contentions, Mr. Limaye would rely upon judgment of the Apex Court in
Sanwarmal Kejriwal V/s. Vishwa Cooperative Housing Society Ltd. and
Ors.1 and Mani Nariman Daruwala alias Bharucha (deceased) through LRS
1 (1990) 2 SCC 288
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and Ors. V/s. Phiroz N. Bhatena and Ors. 2 He would accordingly contend
that decree passed by the Small Causes Court is thus without jurisdiction
and a nullity. He would also submit that issue of jurisdiction, being a pure
question of law in the present case not requiring any evidence in view of
specific pleading and evidence, can be raised at any stage of proceedings
including in Revision filed under Section 115 of the Code.
6) Mr. Limaye would submit that Small Causes Court committed
a gross error in directing eviction of Defendant No.10 even though finding
of default of rent was recorded only against Respondent Nos.1 to 9. That
therefore the decree passed by the Small Causes Court suffered from a gross
error and the Appellate Bench ought to have set aside the entire decree
rather than reversing the findings only on the issue of default.
7) So far as the ground of subletting is concerned, Mr. Limaye
would submit that Plaintiff's case is that Defendant No.11 to 14 have been
inducted by Defendant Nos.1 to 9. That there is no allegation, much less
proof, about allegation of subletting qua Defendant No.10. Plaintiff could
not have raised the pleading about Defendant No.10 subletting the suit
premises since it is Plaintiff's own case in the plaint that Defendant No.10
himself is an unauthorised occupant. He would therefore submit that the
findings recorded by the Small Causes Court and its Appellate Bench on the
issue of subletting are perverse and liable to be set aside. Mr. Limaye would
pray for setting aside decree passed by the Trial Court and its Appellate
Bench.
8) Per contra, Mr. Shah, the learned counsel appearing for
Respondent Nos.1, 2 and 4 would oppose the Revision Application
2 (1991) 3 SCC 141
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submitting that the issue of jurisdiction of Small Causes Court was never
raised by Defendant No.10 at any stage of the proceedings. That Defendant
No.10 never objected to non-framing of issue relating to jurisdiction of
Small Causes Court and that the Suit proceeded in absence of determination
of objection of jurisdiction. Even in Appeal memo filed before the Appellate
Bench, Defendant No.10 failed to raise the issue of jurisdiction. Now at a
belated stage, the issue of jurisdiction is sought to be raised by way of an
afterthought. He would submit that though Plaintiff sincerely believed that
Defendant No.10 is unlawful occupant, he nonetheless was treated as tenant
solely for the purpose of terminating of tenancy and seeking his eviction in a
Suit filed before Small Causes Court. That, therefore, pleadings with regard
to unlawful occupation by Defendant No.10 is required to be construed in
the light of without prejudice plea taken by Plaintiff. That in any case,
Defendant No.10 got his tenancy claim adjudicated before the Small Causes
Court and now cannot be permitted to take a volte face and contend that the
Court did not have jurisdiction to entertain the Suit.
9) So far as the ground of default is concerned, Mr. Shah would
submit that Appellate Bench of the Small Causes Court has already reversed
the finding of the Small Causes Court on the issue of default and therefore it
is not necessary to examine the correctness of findings in Trial Court in that
regard. So far as the ground of subletting is concerned, Mr. Shah would
submit that there are specific admissions given by the heirs of Defendant
No.10 in pleadings as well as evidence about receipt of Rs. 30,000/- per
month from unlawful occupation in the suit premises. Since there is an
admission of Rs.30,000/- in the written statement, coupled with production
of evidence in the form of income tax returns reflecting receipt of
Rs.30,000/-, there was nothing left to be proved by Plaintiff for establishing
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profiteering by heirs of Defendant No.10 out of their act of subletting. He
would submit that in any case, the Small Causes Court and its Appellate
Bench have concurrently upheld the ground of subletting after appreciating
the evidence on record and that in the revisionary jurisdiction exercised by
this Court such finding of fact cannot be entertained. He would therefore
pray for dismissal of the Revision Application.
10) Rival contentions of the parties now fall for my consideration.
11) The main ground raised by the Revision Applicant in the
present Revision Application is about jurisdiction of the Small Causes Court
to try and entertain Plaintiff's Suit against Defendant No.10-Rustom. In
fact, Revision Application appears to have been admitted by order dated 18
September 2019 on this ground. Mr. Limaye has highlighted pleadings as
well as evidence of Plaintiffs as well as contents of Notice dated 11 January
1974 to demonstrate that Plaintiff has repeatedly taken a stand that
Defendant No. 10 was unlawful occupant. Since Mr. Limaye has relied upon
judgment of the Apex Court in Sanwarmal Kejriwal (supra) in support of his
contention that pleadings in the Plaint are required to be taken into
consideration while deciding the issue of jurisdiction, it will be appropriate
to reproduce paragraph 1 of the plaint:
"1. The original Plaintiff was the owner and the landlord of the property known as
Mary Villa, situate at 91, Hill Road, Bandra, Bombay- 400050. That one
Khodadad Irani and original Defendant No.9 were the tenants of the original
Plaintiff in respect of a shop on the ground floor of the Plaintiff's said property.
The said Khodadad Irani died in or about March 1976 and the Defendants Nos.1
to 8 are the heirs and legal representatives of the deceased tenant Shri Kodadad
Irani. The said shop on the ground floor of the original Plaintiff's said property is
hereinafter referred to as "the suit premises". The original Defendant No.10 is
unlawful occupant of the suit premises. Original Defendant No.10, however,
falsely claims to be the tenant of the suit premises. The original Plaintiff therefore
without prejudice to his rights and contentions in the matter terminated the
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tenancy in respect of the suit premises by addressing his Advocate's notice to quit
dated 11th January 1974 to the said Khodadad Irani and the original Defendant
Nos.9 and 10. The said notice to quit was duly served on the said Khodadad Irani
and the original Defendants Nos. 9 and 10. Hereto annexed and marked Exhibit A
is a copy of the said Exhibit A notice to quit dated 11th January 1974. "
(emphasis and underlining supplied)
12) Mr. Limaye highlights the averments in the Plaint that
'unlawful occupant of suit premises' and contends that Suit under Section 41
of the PSCC Act is not maintainable against unlawful occupant. However,
what Mr. Limaye ignores is further averment in paragraph 1 of the plaint, in
which the Plaintiff averred that ' the original Plaintiff therefore without
prejudice to his rights and contentions in the matter terminated the tenancy
in respect of the suit premises by addressing his Advocate's notice to quit
dated 11 January 1974 to said Khodadad Irani and the original Defendants
Nos.9 and 10'. Therefore, another way of reading the pleadings in paragraph
1 of the Plaint is that Plaintiff first raised the objection that 10 th Defendant is
an unlawful occupant. However, without prejudice to that objection,
Plaintiff further pleaded that he terminated the tenancy of Defendant No.
10. Thus, in my view there is pleadings in paragraph 1 of the Plaint relating
to termination of tenancy of 10th Defendant. It therefore cannot be
contended that the entire suit proceeded on a footing that Defendant No.10
is unlawful occupant. On the contrary, paragraph 1 of Plaint clearly shows
an averment that tenancy of Defendant No.10 was terminated. Plaintiff took
into consideration the possible risk of Defendant No. 10 establishing his
tenancy claim and therefore rightly instituted suit against Defendant No. 10
in the Small Causes Court.
13) Mr. Limaye has taken me through Notice dated 11 January
1974 addressed on behalf of Plaintiff to Khodadad Irani, Behram Irani and
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Rustom Irani. Paragraph 1 of the notice states that 'the addressees Nos. 1
and 2 are my clients' tenants in respect of above premises. My client has duly
terminated tenancy of the said tenants. You address no.3 is an unlawful
occupant in respect of the said premises.' However, in paragraph 3 of the
notice it was stated as under:-
3. Without prejudice to and without waiving the previous notices,
my client instructs me to once again terminate the tenancy in respect of
the above premises and call upon you all which I hereby do, to vacate
the about premises at the end of one month after the expiration of the
current month of tenancy in respect of the said premises, failing which
my client would adopt such steps including eviction against you at your
risk and costs.
14) Thus again in the Notice dated 11 January 1974, tenancy of all
the three addressee came to be terminated by the Plaintiff. What is more
striking to note is Plaintiff's careful distinction between classes of persons
while initiating action for eviction. No doubt he filed Suit against 14
Defendants, out of whom he believed Defendant Nos.1 to 10 to be tenants
and therefore classified them into the compartment of tenancy and he
addressed notice dated 11 January 1974 terminating their tenancy. So far as
Defendant Nos.11 to 14 are concerned, he compartmentalized them into
mere unauthorised occupants and did not serve them any notice. The fact
that notice of termination of tenancy was served upon Defendant No.10 is
yet another factor, which indicates that suit proceeded on a footing that
Defendant No.10 was a tenant though Plaintiff did describe him as an
unauthorised occupant on a without prejudice basis. I am therefore unable
to accept the contention of Mr. Limaye that entire Suit proceeded on a
pleading that Defendant No.10 was a mere unauthorised occupant.
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15) In fact, the conduct of Defendant No.10 and his heirs in not
raising any objection about jurisdiction clearly shows that contents of
paragraph 1 of the plaint as well as of notice dated 11 January 1974 were
correctly understood by them. This could be the reason why objection of
jurisdiction was not raised. Far from raising objection of jurisdiction,
Defendant No.10 actually utilised the jurisdiction of the Small Causes Court
to secure a declaration of tenancy. Having not raised the objection of
jurisdiction either before the Trial Court or before the Appellate Bench, it
clearly appears that objection of jurisdiction is raised merely by way of an
afterthought in the present Revision Application. While this Court could
not simply brushed aside objection of jurisdiction, on account of plea of
pure point of law being raised, this Court has considered even the objection
of jurisdiction on merits and it is held that Small Causes Court has correctly
exercised the jurisdiction since the plaint proceeded on a footing that
Defendant No.10 was also a tenant on a without prejudice basis.
16) So far as the objection of Mr. Limaye about findings recorded
by the Small Causes Court with regard to the ground of default are
concerned, he has submitted that despite default being held against
Defendant Nos. 1 to 10, Small Causes Court has erroneously ordered
eviction of Defendant No.10 from the suit premises. While Mr. Limaye may
be right in contending so, the Appellate Bench has corrected the said error
and has rejected the ground of default in entirety. Therefore it is not
necessary to delve deeper into this aspect.
17) What remains now is the issue of subletting, which is
concurrently held to be proved against Defendant Nos.1 to 10. The present
Revision is being prosecuted only by the heirs of Defendant No.10. Perusal
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of the findings recorded by the Small Causes Court and the Appellate Bench
show that the entire evidence on record is appreciated for the purpose of
arriving at a finding that Defendant No.10 inducted outsiders into the suit
premises and that he / his legal heirs were enjoying Rs.30,000/- per month
from such occupants. In fact, there appears to be a specific admission in the
written statement filed by the heir of Defendant No.10 about receipt of
monthly amounts from outsiders. In my view therefore the concurrent
findings on the issue of subletting recorded by the Small Causes Court and
its Appellate Bench do not warrant any interference in exercise of revisional
jurisdiction of this Court under Section 115 of the Code.
18) After considering the overall conspectus of the case, I am of the
view that no case is made out for interference in the concurrent findings
recorded on the issue of subletting. In my view, time has come to put a full
stop to the entire litigation, which is pending between the parties for the last
48 long years, the suit being instituted by the original Plaintiff in the year
1976. It has been conclusively proved that Defendant No.10 / his heirs are
in fact profiteering on the basis of unauthorised subletting of the suit
premises. It is therefore high time that possession of the suit premises are
handed back to Plaintiffs.
19) Revision Application is accordingly dismissed. There shall be
no orders as to costs. Original Plaintiffs shall be permitted to withdraw the
amounts deposited in the Court of Small Causes as well in this Court
alongwith the interest accrued thereon.
20) Interim application stands disposed of.
[SANDEEP V. MARNE, J.]
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21) After the order is pronounced, Mr. Limaye prayed for
continuation of stay granted by this Court for a period of 8 weeks. Request
is opposed by Mr. Shah. Considering the fact that there are concurrent
findings of subletting recorded against the Revision Applicants, who are
admittedly profiteering out of such arrangements at the cost of Plaintiff, I
am not inclined to continue the stay. The request for continuation of stay is
accordingly rejected.
[SANDEEP V. MARNE, J.]
9 August 2024
