The main legal point established in the judgment is the relevance of Section 44 of the Indian Evidence Act, 1872 in cases of fraud or collusion in obtaining a judgment, order, or decree, and the court's authority to ensure that all subordinate courts act in accordance with well-established principles of law.

1. Heard Mr. Jagtiani, Sr. Counsel for the Petitioner and Mr. Madan, Sr. Counsel for Respondent. Rule. By consent Rule made returnable forthwith and heard finally.

2. Present Writ Petition filed under Article 226 and 227 of the Constitution of India challenges the Judgment and Order dated 26/9/2011 passed by the learned Judge of the Court of Small Causes at Mumbai presiding in C.R. No. 19 thereby dismissing the Application Exh. 26 filed by the Plaintiff in TE & R Suit No. 198/211 of 2003. Brief background of the facts leading to this litigation is essential.

3. It is not in dispute that the Petitioner Plaintiff is the landlord and Respondent Defendant is tenant in respect of the suit premises. The Maharashtra Rent Control Act, 1999 has been brought into force w.e.f. 30/3/2000. Section 3(1)(b) of the said Act provides that provisions of that Act will not apply to a limited company having a paid up share capital of Rs. One Crore or more. In so far as Mumbai is concerned, the jurisdiction to try and entertain the suit between the landlord and tenant in case where relationship is controlled by Maharashtra Rent Control Act, 1999 or not is conferred on the Court of Small Causes established under the Presidency Small Cause Courts Act, 1882. Section 41 of the said Act reads thus:

“41. (l) Notwithstanding anything contained elsewhere in this Act 4[****]but subject to the .provisions of sub-section (2), the. Court of Small Causes shall have jurisdiction to entertain and try all Suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

(2) Nothing contained in sub-section (l) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act [the Maharashtra Housing and Area Development Act, 1976 or II of any other law for the time being in force, apply.]”

4. In this case it is not in dispute that as on 30/3/2000, share capital of Respondent Company was more than Rs. One Crore. It is also not in dispute that the Respondent Defendant thereafter filed Company Petition No. 381 of 2000 for accepting scheme of compromise and arrangement in which an order was passed by the learned Single Judge of the Company Court of this Court exercising powers under Companies Act, 1956 on 18/4/2001 and by that order, it was inter alia provided that the share capital of the Respondent Company will stand reduced to Rs. 75 Lakhs with retrospective effect w.e.f. 1/4/1999.

5. On this background, the Petitioner filed TE & R Suit No. 198/211 of 2003 on 18/7/2003 for eviction of the Respondent on the ground that the Respondent was not protected by the provisions of 1999 Act and hence, the Suit was filed expressly under Section 41 of the 1882 Act.

6. The Respondent filed its Written Statement on 20/10/2003 and in paragraph-10 of the Written Statement it is inter alia contended thus:

“10. With reference to paragraphs 7 of the plaint, Defendants deny that their paid up share capital on 31st March 2000 was more than Rupees One Crore. Defendants submit on 31st March 2000 their paid up share capital was Rs. 75,60,000/-. Defendants crave leave to refer to and rely on order dated 18th April 2001 passed by the Hon’ble High Court of Judicature and certificate issued by the ROC, Bombay in Company Petition No. 381 of 2000. Defendants deny that provisions of Maharashtra Rent Control Act are not applicable to Defendants. Defendants deny that they are not entitled to claim protection under the Maharashtra Rent Control Act, 1999. Defendants deny that