Bombay High Court
Gopal P. Naik Shetty Since Deceased Thr ... vs The Madhavnagar Co-Operative And Anr on 28 July, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:31816
-CRA-388-2025.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 388 OF 2025
Gopal P Naik Alias Shetty (Since Deceased) ..Applicants
Through LRs 1a. Shekhar Gopal Naik & Ors
Versus
The Madhavnagar Cooperative Housing Society ...Respondents
& Anr
Mr.S.B. Prabhavalkar, i/b Nilesh Parte, for the Applicants.
CORAM: N. J. JAMADAR, J.
DATED : 28th JULY 2025
P.C.:
1. Heard Mr. Prabhavalkar, the learned Counsel for the Applicants.
2. This Revision Application is directed against a judgment and
decree dated 20th March 2025, passed by the Appellant Bench of Court
of Small Causes, Mumbai, in R Appeal No. 173 of 2021, whereby the
ARUN Appeal preferred by the Applicants, the Successor in interest of Gopal P
RAMCHANDRA
SANKPAL
RAD Suit No. 1783 of 2005, dismissing the Suit preferred by the
original Plaintiff for declaration of tenancy in respect of Room No.1,
situated on the first floor of the building at Madhavnagar Cooperative
Housing Society, Bhavani Shankar Road, Dadar, Mumbai 400 0228,
-CRA-388-2025.DOC
("the Suit Room"), came to be dismissed by affirming the said Decree
dated 6th February 2021.
3. The original Plaintiff had sought a declaration that he was in the
occupation of the Suit Room in the capacity of a tenant thereof at the
contractual rent of Rs.100/-, since prior to 1970.
4. The learned Judge, Court of Small Causes, was persuaded to
dismiss the Suit holding, inter alia, that another Suit, being RAD Suit
No. 1936 of 1996, wherein identical contentions were raised by the
Plaintiff, came to be dismissed, and there was no reliable material to
substantiate the claim of the Plaintiff that he was the tenant of the Suit
Room.
5. Being aggrieved, the Applicants preferred an Appeal before the
Appellate Bench. By the impugned order, the Appellate Bench confined
its determination to the question as to whether the Appellants prove
that the deceased Plaintiff was a tenant of the Suit Room and declined
to delve into the issue as to whether the deceased Plaintiff was a
gratuitous licensee of the Respondent No.1/Defendant No.1, as another
Suit being L.E. Suit No. 67 of 2008, for the eviction of the Plaintiff as a
gratuitous licensee was sub judice. The Appellate Bench after evaluating
the evidence and the material, concurred with the view of the Trial
Court that the Plaintiff failed to establish that he was a tenant in respect
of the Suit Room.
-CRA-388-2025.DOC
6. Mr. Prabhavalkar, the learned Counsel for the Applicants, would
submit that indisputably the original Plaintiff had been in the
occupation of the Suit Room. The Trial Court as well as the Appellate
Bench committed an error in appreciating the evidence on record,
especially the Resolutions passed in the meetings of the Respondent
No.1-Society, which clearly record that the Suit Room was allotted to
the original Plaintiff as a tenant, albeit in the capacity of the caretaker
of the Society. The Courts below thus committed an error in dismissing
the Suit.
7. I have perused the material on record. The Appellate Bench has
recorded in no uncertain terms that there was not an iota of evidence to
show the terms on which the Suit Room was allegedly allotted to the
original Plaintiff as a tenant, the initial rent, the rent receipts or other
document to evidence the payment of rent for over 35 years.
8. On the contrary, the documentary evidence indicated that the
original Plaintiff claimed to reside in the Room adjoining the Suit Room.
Since in the previous RAD Suit, i.e., 1936 of 1996, the Plaintiff did not
seek the declaration in respect of the Suit Room, the principle of
constructive res judicata operated in the case at hand. Thus, the Plaintiff
was not entitled to such declaration.
9. Upon perusal of the material on record, this Court finds that,
there is no scope for interference with the concurrent findings of fact
-CRA-388-2025.DOC
recorded by the Courts below in exercise of the limited revisional
jurisdiction. The prime fact of payment of rent has not been established.
The fact that the original Plaintiff had been in the occupation of the Suit
Room was not of determinative significance. The Defendant No.1 claims
that the Suit Room was occupied by the original Plaintiff as a gratuitous
licensee, being a caretaker of the Defendant No.1-Society.
10. The omission to include the Suit Room in the earlier RAD Suit
seeking declaration of tenancy in respect of the other premises in the
very same building, cannot be brushed aside as inconsequential. In the
circumstances of the case the principle of constructive res judicata, does
come into play. In the absence of the clear and cogent material to show
that the occupation of the Suit Room by the original Plaintiff was in the
capacity of the tenant thereof, the mere occupation does not sustain the
decree of declaration.
11. Mr. Prabhavalkar, the learned Counsel for the Petitioner would
submit that this Court may clarify that the observations in the impugned
judgment and decree, shall not influence the decision in L.E. Suit No. 67
of 2008. The question as to whether the impugned judgment is relevant
for the determination of L.E. Suit No. 67 of 2008, is required to be
determined by the Court seized with L.E. Suit No. 67 of 2008, in
accordance with law. If the said judgment is otherwise relevant, this
-CRA-388-2025.DOC
Court would not be justified in directing that the impugned judgment
need not be taken into account at all.
12. Suffice to clarify that L.E. Suit No. 67 of 2008 shall be decided on
its own merits, on the basis of the evidence adduced in the said Suit and
in accordance with law. The question of relevancy of the impugned
judgment while deciding the L.E. Suit No 67 of 2008 is left open for
determination by the Court seized with L.E. Suit No. 67 o 2008.
13. With the aforesaid clarification, the Civil Revision Application
stands dismissed.
[N. J. JAMADAR, J.]
