KAVITA L. THADANI DECD THRU LR JAIKUMAR L. THADANIversusJEHANGIR DINSHAW IRANI AND ORS

2026:BHC-AS:38295

                                                               10-WP-12855-2018.docx


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION
                           WRIT PETITION NO. 12855 OF 2018
   Swapnil
               Khodu Sorab Irani                               …Petitioner
                    Vs.
               Jahangir Dinshaw Irani and Ors.           …Respondents
                                              WITH
                              WRIT PETITION NO. 373 OF 2019

               Mr. S. S. Patwardhan for the petitioner in WP/12855/2018.
               None for the petitioner in WP/373/2019.

                                       CORAM : GAURI GODSE, J.

                                       DATE :       18th SEPTEMBER 2026

               ORDER :

                     WRIT PETITION NO. 12855 OF 2018

               1.    The petitioner claims to be the co-owner of the suit

               premises. The writ petition challenges the concurrent

               judgments and decrees allowing the suit filed by respondent

               no. 1 against respondent no. 3, i.e. the original defendant

               (tenant). The suit was filed seeking eviction on the ground of

               bona fide requirement, acquisition of alternate suitable

               accommodation and permanent construction carried out by

               the tenant without the landlord’s consent. The suit was

               decreed against respondent no.3. Hence, she filed an appeal

               before the District Court. In this appeal, the present petitioner

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had applied for leave to intervene on the ground that the suit

premises are in his possession, as the defendant had

surrendered the suit premises. From the title of the impugned

judgment of the District Court, it appears that the petitioner

was added as the co-appellant. The appeal is dismissed by

confirming the findings recorded by the trial court. The courts

held that the assignment of tenancy by the original defendant

in favour of the third party was not valid.


2.    Learned counsel for the petitioner submits that the

petitioner has filed a suit for partition and separate

possession. Since the petitioner is in possession of the suit

premises and the decree was sought to be executed against

the petitioner, he had intervened in the appeal preferred by

the defendant. He further submits that in the trial court the

original defendant had contended that she had surrendered

her tenancy to the third party and handed over possession to

one Mr. Mohammed Ali Ganji and thereafter the same was

transferred to Mr. P. A. Inamdar. The petitioner received

possession from Mr. P. A. Inamdar.


3.    Learned counsel for the petitioner therefore submits

that no tenancy existed when the suit was decided. Since the


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tenancy was surrendered, the trial court could not have

decreed the suit. He therefore submits that, being the co-

owner, the petitioner is in possession of the suit premises

and, therefore, the impugned eviction decree cannot be

executed       against   the   petitioner.    Since     there   is   an

apprehension of execution of a decree against the petitioner,

the impugned judgments and decrees would warrant

interference by this court.


4.      I have perused the papers of the writ petition. The trial

court    and    the   appellate   court      have     considered     the

defendant's contentions regarding the assignment of the

tenancy. Both courts have held that assigning the tenancy in

favour of a third party without the landlord's consent is

invalid. After considering the suit on merits, the trial court

granted an eviction decree against the defendant, i.e.

respondent no.3 on all three grounds. The appeal court has

also considered the issue of assignment of tenancy claimed

by the original defendant. In the absence of any documentary

evidence of a valid assignment of tenancy, the appellate

court refused to entertain the tenant's contentions regarding

the assignment. Since the separate suit between the co-



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owners was already pending, the appellate court did not

entertain the present petitioner's contentions.


5.    The trial court also considered the subsequent suit filed

by the plaintiff against the defendant for eviction on a

different ground. The said suit was dismissed by holding that

the assignment of tenancy by the defendant in favour of one

Mr. Mohammad Ganji and thereafter in favour of Mr. P. A.

Inamdar was not valid. The trial court in the second suit, i.e.

Civil Suit No. 66 of 2005, held that since the suit premises

had collapsed, the tenancy ceased to exist. Hence, the suit

was dismissed. The appeal filed by the original plaintiff

against the said dismissal was withdrawn. The appellate

court, therefore, refused to deal with the issue of assignment

of the tenancy, as the findings in Civil Suit No. 66 of 2005

had attained finality.


6.    The dispute between the co-owners, i.e., the present

petitioner and the original plaintiff, is pending in the partition

suit. Hence, the appeal court rightly refused to deal with the

dispute between the co-owners. Accordingly, the appellate

court dismissed the defendant's appeal and confirmed the

trial court’s decree. The court issued no directions against


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the present petitioner. The issue regarding illegal assignment

by the original tenant stands confirmed in view of the findings

recorded in Civil Suit No. 66 of 2005.


7.     Hence, so far as the present petition is concerned, I do

not see any prejudice to the petitioner in view of the

impugned judgments and decrees. The appeal court is right

in observing that the dispute between the co-owners would

be decided in the partition suit separately filed by the parties.

Hence, though the petitioner was added as a party to the

appeal, neither are there any findings recorded against the

petitioner, nor is there any order against the petitioner. The

scope of interference in the exercise of discretionary

jurisdiction under Article 227 of the Constitution of India is no

more res integra. The Apex Court in Shalini Sham Shetty

and Anr. Vs. Rajendra Shankar Patil1, held that the writ

jurisdiction under Articles 226 and 227 of the Constitution of

India must be exercised sparingly in cases of patent

perversity, where there has been a gross and manifest failure

of justice or the basic principles of natural justice have been

flouted. In view of the well-settled legal principles laid down

by the Apex Court, I find no reason to exercise writ

1 (2010) 8 SCC 239

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jurisdiction to entertain the writ petition.


8.    The writ petition is, therefore, dismissed.


WRIT PETITION NO. 373 OF 2019


1.    None appears for the petitioner.


2.    The writ petition is dismissed for non-prosecution.




                                               [GAURI GODSE, J.]




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