JUDGEMENT

Dipak Misra, J — Leave granted.

2. The plaintiffs, trustees of the Parsee Girls School Association, being aggrieved by the judgment and order dated 5th March, 2010 in Writ Petition No. 1171 of 2009 and the order dated 17.9.2010 in Review Petition No. 160 of 2010 passed by the High Court of Judicature at Bombay whereby the Writ Court has overturned the judgment and order dated 29.8.2008 of the Appellate Court of Small Causes at Bombay in Appeal No. 123 of 2005 wherein the Appellate Court had reversed the judgment and decree passed by the Court of Small Causes at Bombay in T.E. & R. Suit No. 241 of 2002 wherein the said court had decreed the suit against defendant No. 1 and dismissed the suit against defendant No. 2 for recovery of possession, and decreed the suit in toto and directed recovery of possession with a further direction of an enquiry as regards the future mesne profits under Order 20 Rule 12(1)(c) of the Code of Civil Procedure (for short the Code); have preferred the present appeals by special leave under Article 136 of the Constitution.

3. Shorn of unnecessary details, the facts which are essential to be exposited are that the appellants/plaintiffs (hereinafter referred to as the plaintiffs) filed a suit against defendant Nos. 1 and 2 for recovery of the suit properties situate at 4th and 5th Floor of Bengallee Girls High School, 42, Sir Vithaldas Thackersey Marg, New Marine Lines, Mumbai and for other reliefs. The case of the plaintiffs before the court of first instance was that the Parsee Girls School Association is a public trust and owns the suit building where the B.S. Bengallee Girls High School is run. In the year 1954, the plaintiffs had permitted defendant No. 1, the New India Assurance Company Ltd., to occupy the 4th and 5th floors of the suit building on payment of rent of Rs.6114/- per month. The said company, in the year 1959, without the knowledge and consent of the plaintiffs, inducted defendant No. 2, the Ministry of Food and Civil Supplies, Government of Maharashtra, as a subtenant. It was pleaded that the plaintiffs had the privity of contract only with defendant No. 1 and had no relationship whatsoever with defendant No. 2 and, therefore, defendant No. 2 was in unlawful possession of the premises in question. It was the stance of the plaintiffs that they, being in need of the suit property for the School, requested the defendants to deliver the possession but as sphinx like silence was maintained to the request, being compelled, they issued notice on 19.11.2001 terminating the tenancy of defendant No. 1 and instituted the suit for recovery of possession. It was contended by the plaintiffs that the defendants were not protected under the provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999 (for brevity the 1999 Act) and were liable for eviction. A claim for mesne profit was put forth and the same was assessed by the plaintiffs at Rs.11,45,583/- per month as per the market value.

4. Defendant No. 1, the New India Assurance Company, filed its written statement setting forth the stance that the suit was misconceived and not maintainable as the proper remedy on the part of the plaintiffs was to take recourse to Section 16 of the 1999 Act. It was also asserted that there was no cause of action for eviction. The further stand of defendant No. 1 was that the plaintiffs had not obtained permission from the Charity Commissioner under the Bombay Public Trust Act, 1950. It was asseverated that defendant No. 1 being a Government Company was not exempted under the provisions of the 1999 Act. It was the further stand that with the knowledge and consent of the trustees, the predecessors of the plaintiffs, had given the suit premises to defendant No. 2 in the year 1959 and the present trustees were aware about these facts. The allegation that defendant No. 2 was in unlawful occupation was strongly refuted. The bona fide requirement of the plaintiffs was vehemently controverted. Th