Bombay High Court
Shri. Raichand Umarshi (Since Decd) ... vs Shri Raichand Ramji Maheshwari on 7 October, 2025
2025:BHC-AS:43392
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2433 OF 1995
Shri. Raichand Umarshi (Deceased) by his heirs
1.1. Shri. Khushalchand Raichand Shah & Anr. ....Petitioners
V/s
Raichand R. Maheshwari (Deceased) through
legal heirs 1a. Smt. Jyoti Mukund Nagda & Ors. ....Respondents
WITH
CIVIL APPLICATION NO. 2476 OF 2016
WITH
CIVIL APPLICATION NO. 1411 OF 2018
WITH
CIVIL APPLICATION NO. 2477 OF 2016
WITH
INTERIM APPLICATION NO. 19687 OF 2022
IN
WRIT PETITION NO. 2433 OF 1995
****
Mr. Prasad S. Dani, Senior Advocate a/w. Mr. Sachin Gite & Mr.
Sarfaraj J. Shaikh for Petitioners.
Mr. S.C. Wakankar for Respondent as Amicus Curiae.
****
CORAM : M.M. SATHAYE, J.
DATE : 7th OCTOBER, 2025
P.C. :
1. Rule has been granted on 06.06.1995. Legal heirs of both sides
are already on record. Since nobody appeared for legal heirs of
Respondent despite service, Amicus Curiae has been appointed by
this Court by order dated 16.06.2025 to espouse the cause of
Respondent Nos. 1(a) to 1(c). Heard learned counsel for the parties.
Perused the record.
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2. By this petition, under Articles 226 & 227 of the Constitution of
India, the Petitioner licensor is challenging the Judgment and Decree
dated 21.03.1995 passed in Appeal No.421 of 1989 by the Appellate
Bench of Small Causes Court, by which Judgment and Decree dated
09.08.1989 passed in favour of the Petitioners in Ejection Application
(E.A.) Suit No.88/536 of 1968 by Small Causes Court at Bombay, was
set aside thereby dismissing/rejecting the claim for eviction. Thus,
the Trial Court had granted eviction decree against the Respondents
which was reversed in Appellate Court.
3. For the sake of convenience, singular reference as 'the
Petitioner and the Respondent' means original parties and plural
reference as 'the Petitioners and the Respondents' means their
respective legal heirs.
4. Few facts necessary for disposal of this writ petition, are as
under. The Petitioner filed eviction proceedings under Section 41 of
the Presidency Small Cause Courts Act, 1882 against the Respondent
(hereinafter referred to as 'the PSCC Act' for short) on the ground
that the Petitioner is licensor and licence granted in favour of the
Respondent-licensee has been revoked/terminated. Termination
notice is dated 05.12.1966. The Respondent filed written statement
in the said licensee eviction proceedings and admitted that as per the
agreement between the Respondent and Petitioner's father, the
Respondent was given exclusive use and occupation of the 'half
portion' of the concerned godown No. 2 on the ground floor of
Jhaveri Mansion, situated at 114, New Chinch Bunder Road, Bombay-
09. This is the suit property.
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5. Parties led their evidence and the Small Causes Court allowed
the ejectment application thereby directing the Respondent to quit
and hand over vacant and peaceful possession of the suit premises
being half portion of said godown. This eviction order was challenged
by the Respondent by filing Appeal No.421 of 1989, in which by the
impugned Judgment and Decree, the Appeal is allowed and the order
of eviction was set aside, thereby holding that the Respondent is
entitled to protection under the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 ('Bombay Rent Act', for short).
6. In the meantime, after the termination of licence in December
1966, the Respondent had filed R.A. Declaratory Suit No.195/1338 of
1969 for declaration that the Respondent is 'a lawful sub-tenant' of
the Petitioner in respect of suit property. By the judgment and order
dated 9/29.04.1976 this suit came to be dismissed, thereby turning
down the claim of the Respondent of being a lawful sub-tenant in
respect of the suit property. The Respondent filed Appeal No.393 of
1976 challenging the dismissal of the R.A. declaratory suit. This
appeal came to be dismissed for default on 26.01.1982. The
Respondent filed Misc. Notice No.722 of 1983 belatedly seeking to
set aside the said dismissal of appeal, which is in the nature of re-
admission of the appeal under Order XLI Rule 19 of the Civil
Procedure Code, 1908. This notice/application was heard on merits
and it was found that no sufficient cause is made out, both for delay
condonation and restoration of appeal. Therefore, it was dismissed by
order dated 19.07.1988. The Respondent then filed Writ Petition
No.6101 of 1988 challenging order dated 19.07.1988. This Court, by
order dated 30.01.1989 dismissed the said petition, after hearing the
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Respondent.
7. The aforesaid facts of dismissal of R.A. Declaratory suit
claiming lawful sub-tenancy, dismissal of the appeal over such order,
refusal to re-admit the appeal, as well as confirmation by the High
Court are undisputed.
8. After such finality was reached, so far as the claim of lawful
sub-tenancy is concerned, licensee eviction proceedings were taken
up by the Small Causes Court and the decree of eviction has been
passed on 09.08.1989, as already indicated above.
9. Learned senior Advocate Mr. Dani appearing for the Petitioners
submitted that after the claim of alleged lawful sub-tenancy has been
turned down by the Court of competent jurisdiction and that decision
having reached finality up to the stage of this Court, the suit for
eviction was rightly decreed, however the Appellate Court, under
impugned order, has interfered with the said decision without
assigning lawful reasons. He invited attention of the Court to Point
No.2 framed by the Appellate Court and decision thereon. He
submitted that once the claim of alleged lawful sub-tenancy is
rejected, it could not have been held, in licensee eviction suit, that
the Respondent was protected under the Bombay Rent Act.
10. On the other hand, Mr. Wakankar, learned Amicus Curiae
appointed by this Court, submitted that during the pendency of the
licensee eviction proceedings, a preliminary issue was decided in
favour of the Respondent on 13.09.1974 and this preliminary issue
was recalled on a miscellaneous notice being moved by the Petitioner,
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which was not permitted. He submitted that finding on the
preliminary issue ought to have been challenged by the Petitioner by
adopting appropriate proceedings. He submitted that since the
preliminary issue is taken up for hearing on merits on a mere motion,
the preliminary finding that the Respondent is a lawful sub-tenant
must have been given its due weightage. He submitted that this
finding therefore would act as a constructive res judicata so far as the
status of the Respondent is concerned. He then relied upon the
definition of 'licensee' as introduced in the Bombay Rent Act. Relying
on Sections 5(3) and 5(4A) of the Bombay Rent Act, he submitted
that the 'licensee' has been defined as well as included in sub-Section
(3) only under amendment under Mah. 17 of 1973 and therefore, the
suit filed in the year 1968 could not have been entertained as
licensee eviction suit.
11. I have carefully considered the rival submissions and perused
the record.
12. It is not disputed that the claim of the Respondent as a lawful
sub-tenant has been negated by the Court of competent jurisdiction
and that finding has attained finality up to this Court. Once the claim
of lawful sub-tenancy is held against the Respondent, the Appellate
Court while passing the present impugned Judgment and Decree,
could not have considered the said aspect again. The suit as filed by
the Petitioner is not under the provisions of Bombay Rent Act but it is
filed under Section 41 of PSCC Act, as a suit between licensor and
licensee. It has come on record that notice was issued to the
Respondent demanding arrears of compensation and
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terminating/revoking the licence, to which no reply was given by the
Respondent. The contention of the Respondent in the written
statement filed in the present suit was based on same assertion that
the Respondent is a lawful sub-tenant protected under the provisions
of Bombay Rent Act. The Trial Court considered the decision in the
declaratory suit and its confirmation up to High Court. It is seen that
the preliminary finding about the Respondent being lawful sub-
tenant was an ex-parte order. It was recalled by allowing the Misc.
Notice/Application No. 2355/74 on 11.12.1974, whereunder the said
preliminary issue was ordered to be taken up for hearing 'on merits'.
There is nothing on record to indicate that the Respondent
challenged this recalling of the preliminary finding. In such
circumstances, an order which is recalled cannot act as constructive
res judicata. From the judgment of the Trial Court, it is seen that the
aspect of status of the Respondent has been considered on merits and
on finding that the licence was duly terminated, the licensee eviction
application has been allowed, ordering eviction.
13. It is also argued by the learned Amicus Curiae that assuming
that the Respondent is a licensee as claimed by the Petitioner, it
would still be protected under Section 15A of the Bombay Rent Act
being in possession prior to 01.02.1973. In this respect, it is rightly
pointed out by the learned senior counsel for the Petitioners, that
Section 15A of the Bombay Rent Act would not apply to the facts of
the present case because protection thereunder does not apply to the
premises which are 'less than a room'. It is material to note that
Respondent has admitted in his written statement that he is in
possession of half of the godown. It is further rightly pointed that
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such protection cannot be claimed by the Respondent, because on the
date of filing of eviction application, the licence was duly terminated
and there was no 'subsisting licence' in favour of the Respondent as
required under definition of licensee under section 5(4A) of the
Bombay Rent Act.
14. After going through the impugned order and reasons
mentioned therein, it is seen that the Appeal Court has re-considered
the aspect of the Respondent being a lawful sub-tenant or not, which
could not have been gone into, in view of the decision in declaratory
suit against Respondent and that decision having attained finality.
The Appellate Court was of the view that the decision in the
declaratory suit cannot be solely relied upon. The Appellate Court has
held that provisions of the Bombay Rent Act were not brought to the
notice of the Trial Court. The Appellate Court in paragraph No.12
considers the amendment to Section 15 of the Bombay Rent Act and
observes that its application is retrospective. The Appellate Court has
further held that dismissal of the declaratory suit would not in itself
result in ejectment of the Respondent.
15. In my considered opinion, the Appellate Court has obviously
considered and applied provisions of Section 15 of the Bombay Rent
Act without understanding the scope of the suit as filed under Section
41 of the PSCC Act. The claim for eviction is not based on any of the
provisions in the Bombay Rent Act, but is based on ground that the
licence is duly terminated. The Appellate Court has gone to the
extent of considering whether an illegal sub-tenant can be considered
as licensee. In my view, the Appellate Court has perversely considered
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the effect of decision in declaratory suit. The jurisdiction of licensee
eviction proceedings under Section 41 of the PSCC Act has been
perversely exercised, beyond its scope. Once the claim of lawful sub-
tenancy by Respondent is rejected by the court of competent
jurisdiction and once that finding has reached finality upto this Court,
it could not have been re-opened by the Appellate Court to re-
consider it under provisions of Bombay Rent Act.
16. In the aforesaid facts and circumstances and for the aforesaid
reasons, this is a fit case to interfere in the impugned Judgment and
Decree.
17. Accordingly, the writ petition succeeds. The impugned
Judgment and Decree/Order dated 21.03.1995 passed in Appeal
No.421 of 1989 by Appellate Bench of Small Causes Court, Mumbai is
quashed and set aside. The Judgment and Decree/Order dated
09.08.1989 passed by the Small Causes Court, Mumbai in Ejectment
Application No. 88/536 of 1968, directing the Respondents to vacate
the suit property and hand over its possession to Petitioners, is
confirmed.
18. Rule is made absolute and the petition is allowed in aforesaid
terms. No order as to cost.
19. In view of disposal of the writ petition, pending interim/civil
applications are also disposed of.
20. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
