Bombay High Court
Ifat Jiauddin Shaikh vs Mrs. Hemalata Wd/O Damji Kunverji ... on 29 January, 2024
2024:BHC-AS:6647
21-CRA-477-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.477 OF 2022
WITH
INTERIM APPLICATION (ST) NO.2703 OF 2024
WITH
CIVIL REVISION APPLICATION NO.402 OF 2022
Ifat Ziyauddin Usmani Shaikh and Ors. ... Applicants
V/s.
SHARADA Hemalata Damji Kunverji Bharani & Ors. ... Respondents
RANGNATH
WAHULE
Digitally signed by
SHARADA
RANGNATH WAHULE
Date: 2024.02.10
WITH
17:30:21 +0530
CIVIL REVISION APPLICATION NO.402 OF 2022
Chandrabahadoor s/o RajnarayanBacchan
Singh & Ors. ... Applicants
V/s.
Hemalata Wd/o Damji Kunverji
Bharani & Ors. ... Respondents
____________________________________
Adv. Zaid Ansari a/w N. Gudwala I.b Zaid Ansari & Association,
Advocate for the Applicants.
Adv. Yahya Ghoghari i.b Shamim & Co., Advocate for Respondent
Nos. 1 to 4 in CRA/402/2022 & for Respondent Nos.3 to 6 in
CRA/402/2022.
Adv. Vimlesh Singh, Advocate for the Applicant in CRA/402/2022.
____________________________________
CORAM : RAJESH S. PATIL, J.
DATED : 29 JANUARY 2024
P.C.:
1. The Civil Revision Application No. 402 of 2022 is filed by
Sharada
21-CRA-477-2022.doc
original defendant's no.1's legal heirs / tenant and Civil Revision
Application No.477 of 2022 has been filed by original defendant
nos.6 and 7 / sub-tenants.
2. Admittedly in both the Civil Revision Applications there is no
orders passed staying the execution of the judgment and decree
passed by the Trial Court and passed by the Division Bench of
Small Causes Court. It is also admitted that the possession decree
has been executed during the pendency of these Civil Revision
Applications, on 8 December, 2023. The landlord has taken
possession of the suit premises pursuant to the decree, in
Execution Application with the help of Court bailiff and police.
3. An Interim Application has been filed in Civil Revision
Application No.477 of 2022 by the subtenant, thereby seeking a
stay to the effect and operation of impugned judgment and decree
passed by the Small Causes Court, and also to permit the
Applicants to carry on their partnership business from the suit
premises, and in the alternative to prayer clause (b) to appoint
court receiver.
4. The landlord had filed a suit for eviction, initially against the
tenant on the ground of, subletting, arrears of rent, change of user
of suit premises, unauthorized constructions in the suit premises
and on the grounds of : nuisance. After filing of the suit in the year
1988 the suit was amended, thereby the plaintiff added defendant
nos.6 and 7 as according to the plaintiff the suit premises was
subletted to defendant nos.6 and 7 and the original defendants
were profiteering from the suit premises.
Sharada
21-CRA-477-2022.doc
5. After the original defendant died his legal heirs were brought
on record in the suit as defendant nos.1 to 5. The defendant nos.1
to 5 filed their written statement. The defendant nos.1 to 5 denied
the contention of the plaint and stated that defendant nos.6 and 7
are partners of the Adarsh Dairy Farm. So also defendant nos.6
and 7 filed their written statement, the defendant nos.6 and 7
denied the contention of the plaint.
6. During the pendency of the suit interim notice was moved by
the plaintiff, and by an Order dated 22 November 1986 the
defendant were injuncted from not to part with the suit premises.
7. The plaintiff led its evidence by examined plaintiff no.3 and
examining the commissioner as witness no.2. The defendant nos.1
to 5 in all examined 3 witnesses including an officer from the
BMC, and a clerk from registrar of firms, so also defendant no.3
was examined, by defendant nos.1 to 5.
8. On behalf of the defendant nos.6 to 7 the brother of
defendant nos.6 and 7 were examined. After the evidence was
recorded the parties being heard on merits, the Trial Court by its
judgment and order dated 22 November 2013 decreed the suit of
eviction on the ground of subletting, unlawful additions and
alterations, waste and damages, nuisance and under Section 108
(o) of Transfer of Property Act.
9. Being aggrieved by the judgment and decree passed by the
Trial Court, the defendant nos.1 to 5 (original tenant's L.R.) and
defendant nos.6 and 7 (subtenants), jointly filed being Appeal
No.112 of 2014 before the Division Bench of the Court of Small
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21-CRA-477-2022.doc
Causes at Mumbai.
10. The Appellate Bench of Court of Small Causes thereafter
heard the advocate's on behalf of the original defendant's and the
plaintiff, and by its judgment and decree dated 5 May 2022
dismissed the appeal filed by the tenants and the subtenants.
11. Being aggrieved by the concurrent findings recorded by both
the Courts, the tenants have filed in this Court, Civil Revision
Application No.402 of 2022 and the subtenants have filed Civil
Revision Application No.477 of 2022.
12. Mr. Vimlesh Singh made his submissions on behalf of the
original tenant.
(i) Mr. Singh further submitted that since the possession has
been taken over by the original landlord, there will be no harm if
the present Civil Revision Application filed on behalf of the tenant,
is admitted.
(ii) Mr. Singh further submitted that during the pendency of the
eviction suit the original tenant RajnarayanBacchan Singh
inducted defendant nos.6 and 7 into the partnership firm of
"Adarsh Dairy Farm".
(iii) Mr. Singh further submitted that "Adarsh Dairy Farm" is a
registered partnership firm and it has been registered on 9 March
1990.
(iv) Mr. Singh further submitted that as an by way of registered
partnership deed firm defendant nos.6 and 7 have been inducted
as partners, there cannot be any ground of subletting.
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21-CRA-477-2022.doc
(v) Mr. Singh further submitted that even if it is presumed that
the tenant had encroached upon any premises, which premises is
not a tenanted premises given by landlord to the tenant, there
cannot be a ground of additions and alterations as mentioned in
the Rent Act, to grant a decree to the plaintiff landlord.
(vi) Mr. Singh further submitted that on the allegations of
encroachment, the plaintiff has tried to prove the ground of waste
and damage and also the ground of nuisance. He submitted that
no such ground has been proved by the plaintiff.
13. Mr. Ansari made his submissions on behalf of subtenant.
(i) Mr. Ansari submitted that infact the partnership firm did not
come into existence after filing of the suit, according to him, the
partnership firm came into existence much prior to the filing of the
suit, in the year 1980. Therefore, according to Mr. Ansari there
cannot be a ground of subletting if the partnership firm has come
into existence before filing of the suit.
(ii) Mr. Ansari submitted that the Trial Court had refused to take
into consideration the certified copy of judgment and decree
passed by the City Civil Court.
(iii) Mr. Ansari also fairly stated that he has not having the
document as mentioned, called as undertaking" which was
tendered in the first appeal, arising out of the decree passed in the
City Civil Court Proceeding.
14. I have heard counsel of all the parties. I have considered the
documents on record.
Sharada
21-CRA-477-2022.doc
15. The decree of possession has been passed by the Trial Court
and the Appellate Bench of the Court of Small Causes on the
ground of subletting unlawful additions and alterations waste and
damage and nuisance. It is a admitted fact that the decree has
already been executed and the possession has been taken over by
the landlord with the help of bailiff and police on 8 December,
2023.
16. It has been admitted fact that the original tenant of the suit
premises was one Mr.RajnarayanBacchan Singh. The said
Mr. RajnarayanBacchan Singh died during the pendency of the suit
therefore, his legal heirs were brought on record in the suit by way
of defendant Nos. 1 to 5. There was a specific order passed on 22
November 1986 in the suit, thereby injuncting the defendant, from
parting with the possession of the suit premises. It appears that
thereafter, the original tenant legal heirs have found a partnership
firm and defendant Nos.6 and 7 were inducted as partners of the
said firm. Though the partnership deed says that defendant nos.6
and 7 would have no rights in the suit premises. The fact remains
that the partnership firm started conducting the business from the
suit premises. This according to me is a clear case of subletting
when the original tenant of the suit premises was one person
called as Mr. RajnarayanBacchan Singh.
17. In my opinion both the Courts that is the Trial Court and
Appellate Court were correct in holding that the ground of
subletting has been proved by the plaintiff. No interference called
for in both the decrees passed by the Trial Court and Appellate
Court on the ground of subletting.
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21-CRA-477-2022.doc
18. As regards the ground of unlawful additions and alterations,
it has been the case of the plaintiff that there was construction
made by the defendant in the suit premises and also by
encroaching upon the premises beyond the tenanted premises. The
submission for advocate appearing on behalf of the tenant that
encroachment of the premises beyond the suit premises could not
amount to unlawful additions and alterations. According to me,
apart from encroachment the original structure of the suit
premises has been changed by the defendant by putting up a
shutter and closing down the mori. This according to me, would be
ground of unlawful additions and alterations which was without
the permission of the landlord. As regards the encroachment made
by the defendant, the same does amount to nuisance and waste
and damage. Therefore, both the Courts according to me are right
in granting a decree on the ground of unlawful additions and
alteration in the suit premises.
19. In such a circumstances as mentioned above there is no
merits in both the Civil Revision Applications.
20. These Civil Revision Applications are dismissed. Interim
Application is also dismissed. No cost.
(RAJESH S. PATIL, J.)
Sharada
