JUDGMENT :

Dama Seshadri Naidu, J.

Introduction:

1. A landlord files a suit for eviction, compromises with the defendants, and secures a consent decree. Later he complains that the defendants have violated the consent terms. So he files an execution petition, gets them evicted, and takes possession - all in one day. The next day, a third party comes to court, claiming to be the original tenant. But before her application gets disposed of, the landlord inducts another person as a tenant. The court, then, finds the decree collusive and allows the original tenant to recover possession.

2. Now the original tenant and the newly inducted tenant fight it out. Of course, the landlord remains distant and detached - callously.

3. To decide who should possess the property, I must address these issues:

The Questions:

(a) Does the order the original tenant has secured against the landlord bind the subsequent tenant who is entirely unaware of the previous court proceedings?

(b) Does the doctrine of lis pendens apply to the post-decree proceedings?

(c) Can an application under Order XXI, Rule 97 or 99 be treated as a suit for applying the lis pendens doctrine?

(d) To determine the beginning of a lis, what should amount to institution of a suit?

(e) Is the subsequent tenant a lis pendens inductee?

(f) Can the subsequent tenant, in this case, resist the original tenant's efforts to regain possession?

Facts:

4. To the machinations of the landlord, it seems two victims fell: one, a dispossessed tenant and the other, a deceived tenant. They have donned the mantle of tenancy one after another - and the latter without the knowledge of the former. Now, both are before this Court to mitigate their pain and salvage whatever they could. Who should have the succour?

5. Mohammed Usman Shaikh Umar, the landlord, filed RAE Suit No. 89/149 of 2008, before the Small Cause Court, Mumbai, to have his alleged tenants evicted. On consented terms, the Court decreed the Suit in December 2009. But the landlord asserted that the tenants had not honoured those terms: they had not vacated the leased property. Then, in January 2010 the landlord, post haste, laid execution, served notice on the judgment debtors, and the same day he completed the eviction of the alleged tenants, as well.

6. In fact, the very next day, Fehmida Usman Gani Shaikh (Fehmida), claiming to be the original tenant, filed Miscellaneous Application No. 32 of 2010, under order XXI, Rules 99, 100 and 101 of CPC. Of course, there remains a dispute about precisely when she filed the Misc. Application. I will address it later. At any rate, eventually through an order, dated16.03.2012, the Trial Court allowed the Misc. Application. It allowed Fehmida to recover possession of the leased property from the landlord.

7. Later, on 22.03.2012, when Fehmida secured a warrant of possession, on the same day Makhbul Munaf Gangan (Gangan) filed a Merji Application No. 250 of 2012, under Order XXI, Rule 97 of CPC. Gangan claimed that once the previous tenants had been evicted, the landlord inducted him as the tenant. But in January 2012 the Trial Court disallowed the application. In fact, it has held that the Merji Application is not maintainable. Aggrieved, Gagan filed Misc. Appeal No. 124 of 2012 before the Appellate Bench of the Small Cause Court. It allowed the appeal on 5.12.2012; that is, it has held that Gangan's application under Order XXI, Rules 97 is maintainable, and remanded the matter. Then it was Fehmida's turn to file this Writ Petition.

Petitioner's:

8. In this factual background, Shri A.N. Nasikwalla, the learned counsel for Fehmida, has submitted that the landlord set up fictitious tenants and secured a fraudulent decree - behind Fehimda'a back. According to him, the moment the landlord abused the Court's process and dispossessed Fehmida, she filed Misc. Application No. 32 of 2010 and secured an order to have her possession restored. But before she could have that order executed, Gangan came up with an application. I