IRANI GUSTAD KHODADADversusLAXMIDAS MORARJI (SINCE DECEASED) THR LRS. AND ORS.

                                                               38-CRA-480-2019.docx


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                CIVIL REVISION APPLICATION NO. 480 OF 2019
Swapnil
          Irani Gustad Khodadad.                               …Applicant
               Vs.
          Laxmidas Morarji (since Deceased)
          Thr Lrs. and Ors.                          …Respondents


          Mr. Angel Carneiro a/w. Mr. Smith Barboz i/b. Mulla and
          Mulla and Craigie Blunt and Caroe for the applicant.
          Mr. Shravan M. Vyas a/w. Mr. Vivek S. Vyas for respondent
          nos. 1(b) and 1(b)(ii), 2b(i) and 2(b)(ii) and 1c.

                                   CORAM : GAURI GODSE, J.

                                   DATE :       2nd SEPTEMBER 2026

          ORDER :


          1.    This civil revision application is preferred by original

          defendant no.2 to challenge the judgment and decree

          passed by the appeal bench of the Small Causes Court. The

          decree was passed on the ground that defendant no.2 is

          illegally occupying the premises and on the ground of illegal

          subletting. The appeal court has recorded the finding that the

          suit premises was illegally sublet in the year 1995 to

          defendant no.2.


          2.    Learned counsel for the applicant submits that

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defendant no.2 was occupying the suit premises under leave

and licensee agreement dated 27 th December 1968 executed

by the original tenant, i.e. defendant no.1. He submits that

the document is produced on record and admitted in

evidence which is a sufficient proof that defendant no.2 is

occupying the suit premises prior to 1 st February 1973 and

therefore is entitled to the protection in view of Section 15A of

the Bombay Rents, Hotel and Lodging House Rates Control

Act, 1947 (“said Act”).


3.    Learned counsel for the applicant relies upon the trial

court’s findings on the consent decree produced on record at

Exhibit ‘23’. He submits that the document at Exhibit ‘23’

supports defendant no.2’s contention that he is the tenant of

the suit premises. He submits that Exhibit ‘23’ is a consent

decree dated 27th November 1996 in a declaratory suit filed

by defendant no.2 against defendant no.1. He submits that

by consent, defendant no.2 is declared as a tenant of the suit

premises. He submits that an important piece of evidence

which supports defendant no.2’s case is not even considered

by the appellate court. Apart from the consent decree at

Exhibit ‘23’, defendant no.2 has relied upon the rent receipts



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and electricity bills and various correspondence since 1968

to support the contention that defendant no.2 is occupying

the suit premises prior to 1 st February 1973 and thus cannot

be termed as an illegal sub-tenant. He submits that the

appeal bench of the Small Causes Court has ignored the

important evidence which supports defendant no.2’s case

that he is occupying the suit premises much prior to 1 st

February 1973, which protects his occupation as a protected

licensee. Learned counsel for the applicant submits that the

civil revision application would therefore warrant interference.


4.    I have perused the papers of the civil revision

application. The applicant, i.e. defendant no.2 who is alleged

to be a sub-tenant has pleaded in his written statement filed

on 9th December 1999 that his source of possession of the

suit premises is a leave and license agreement dated 26 th

December 1968 executed by defendant no.1. Though

learned counsel for the applicant has relied upon the consent

decree dated 27th November 1996, he is unable to point out

any pleadings in his written statement that defendant no.2

was declared as a tenant which support his case that he is

occupying the suit premises prior to 1 st February 1973.



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5.    I have perused the document produced at Exhibit ‘23’.

It is an order passed by consent in a suit inter se between

the defendants. Except for the statement in the first

paragraph of the consent terms declaring him as the tenant,

there is no adjudication of his tenancy. The landlord, who is

the owner, i.e. the present plaintiff, is not a party to the said

suit. Admittedly, defendant no.1 is the original tenant. Hence,

there is no question of any declaration by consent that

defendant no.2 is the tenant of the suit premises. Hence, the

document at Exhibit ‘23’ is irrelevant to decide whether

defendant no.2 is entitled to any protection under Section

15A of the said Act.


6.    The document pleaded by defendant no.2 is the leave

and license agreement dated 27 th December 1968. The

appeal court has exhaustively discussed the terms and

conditions of the said document and the oral evidence. In

paragraphs 39 and 40 of the impugned judgment, the appeal

court referred to the admissions by defendant no.2 that, in

1966, he had passed the 10 th standard examination and,

therefore, was not a major in 1968 when the alleged leave

and license document was executed. Defendant no.2 has



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further admitted in his cross-examination that in 1966, when

he was 16 years old, he had left the premises of his parents.

However, he has not assigned any further reasons to support

the said contention. Defendant no.2 has not produced any

document to show that he was major when the document of

1968 was allegedly executed.


7.   The consent decree relied upon by defendant no.2 is in

a suit filed during the pendency of the present suit, which

was filed sometime in 1970. The written statement was filed

in 1999. There is no valid explanation on behalf of defendant

no.2 for not specifically pleading the particulars of the

consent decree relied upon by defendant no.2. Even

otherwise, the said consent decree, passed during the

pendency of the present suit, by suppressing the pendency

of the suit and without making the present plaintiff a party to

the suit, would not assist defendant no.2 to claim protection

under Section 15A of the said Act.


8.   The attempt by defendant no.2 to produce the

document at Exhibit ‘23’ by filing a collusive suit cannot be

considered an important aspect for interference with the

findings of fact recorded by the appellate court, as it


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exhaustively discussed the 1968 document and the oral

evidence. Any documentary evidence produced without any

support in the pleadings would not be of any relevance. The

written statement of defendant no.2 specifically pleads the

document of 1968, which is discussed by the appellate court.


9.     The appellate court also referred to the documents with

which defendant no.2 was confronted during his cross-

examination, including the voters list and the divorce petition

between defendant no.2 and his wife. With reference to the

said   documents    and   the     confrontation   during    cross-

examination, the appellate court held that defendant no.2’s

address was different from the suit premises. Hence, in view

of the admissions given by defendant no.2, the appeal court

has rightly arrived at the conclusion that defendant no.2

failed to prove that he was occupying the suit premises prior

to 1st February 1973. Hence, defendant no.2 is rightly held

not entitled to any protection under Section 15A of the said

Act.


10.    By amending the civil revision application, defendant

no.2 has also challenged the order passed by the appeal

bench on 3rd September 2019 recording findings that plaintiff


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no. 1A to 1C are the heirs and legal representatives of

original plaintiff no.1. Learned counsel for the applicant

submits that though there is a probate in favour of plaintiff

nos. 1A to 1C, they are not the legal heirs of deceased

plaintiff no.1.


11.   I have perused the order dated 3 rd September 2019.

Learned counsel for the plaintiff submits that the prayer

regarding bringing on record the names of plaintiff nos.1A to

1C was never objected to by defendant no. 2, and the order

on the Marji application was passed only because of the

objection raised by defendant no.1. He relies upon paragraph

22 of the order dated 3rd September 2019.


12.   I have perused the order. Learned counsel for the

plaintiff is right in submitting that defendant no.2 has never

challenged the status of plaintiff nos.1A to 1C. Even

otherwise, in view of the probate granted in favour of plaintiff

nos. 1A to 1C. I see no ground to raise objection to their

status.


13.   Learned counsel for the respondent (plaintiff), on

instructions, submits that the suit premises are kept vacant

under the lock and key of defendant no.2. He, therefore,

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submits that the attempt on the part of defendant no.2 in

filing this civil revision application is only to defeat the decree

passed in favour of the landlord in a suit of 1970. Defendant

no. 2, who is present in court, does not dispute the landlord's

statement that the suit premises are kept vacant. Learned

counsel for defendant no.2, on instructions, submits that

defendant no.2 intends to reside in the suit premises and

could not reside as it requires repairs.


14.     It is unfortunate that despite filing a suit for eviction in

1970 and the appellate court's decree dated 3 rd May 2019,

the landlord is unable to get the fruits of the decree, and the

suit premises remain vacant under the lock and key of

defendant no.2.


15.     I do not find any jurisdictional or any other manifest

error in the reasons recorded in the impugned judgment.

Hence, no interference is called for in the impugned

judgment in exercise of the jurisdiction under Section 115 of

the Civil Procedure Code, 1908. The civil revision application

is devoid of any merit. In view of the facts and circumstances

of the case as discussed above, the applicant is liable to pay

costs     to   the   respondent,    i.e.   the   heirs   and    legal


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representatives of the original plaintiff.


16.   In view of the facts and circumstances discussed

above, the cost is quantified at Rs. 2,00,000/-. The cost shall

be paid within two weeks from the date of uploading this

order on the official website. If the cost is not paid, the

respondents (original plaintiffs) would be entitled to recover

the same while executing the eviction decree.


17.   The civil revision application is dismissed.


18.   At this stage, learned counsel for the applicant seeks

extension of the interim protection granted by this court on 8 th

July 2019. The protection granted vide order dated 8 th July

2019 shall continue to operate till expiry of six weeks from

the date of uploading this order on the official website,

subject to applicant filing undertaking before this court stating

that if favourable order is not passed by the Apex Court, the

applicant shall handover the vacant and peaceful possession

of the suit premises to the respondents on expiry of the

protection granted by this order.


19.   The affidavit-cum-undertaking shall state that the suit

premises is in possession of only the applicant and no other


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third party is occupying the same and that arrears, if any,

shall be deposited within four weeks from today. The

undertaking shall further state that no third-party rights would

be created and possession shall not be parted in favour of

any third party. Such an affidavit-cum-undertaking shall be

filed within two weeks.


20.   It is clarified that if such an undertaking is not filed or

there is any breach of the undertaking, the protection granted

by this order shall stand vacated without further reference to

the court.


21.   The amount deposited by the applicant in this court

shall be paid to respondent nos. 1A to 1C with accrued

interest, if any.

                                           [GAURI GODSE, J.]




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