Proforma defendants cannot lead evidence detrimental to plaintiffs in eviction proceedings when their role is not adverse to the interests of the plaintiffs.

JUDGMENT

1. Rule. Rule is made returnable forthwith. With the consent of learned counsel appearing for rival parties, petition is taken up for final hearing and disposal.

The Challenge

2. By this petition, Petitioners challenge Order dated 19 April 2022 passed by the Court of Small Causes at Mumbai rejecting their Application at Exhibit-664 filed by them for preventing Defendant Nos. 7 to 14 from leading evidence in their suit seeking eviction of Defendant Nos.1 to 6. The broad issue involved in the present petition is whether Defendant Nos. 7 to 14, whose interests are not adverse to that of Plaintiffs, can be permitted to lead evidence only because Written Statements are filed by such Defendants.

A. Factual Matrix

3. A brief factual narration as a prologue to the judgment would be necessary.

4. Land bearing Final Plot No. 268, T.P.S. iii, Mahim Division, Ward No. G/North 5546 (1-1A) situated at 16, Mogul Lane, Matunga (West), Mumbai is the subject matter of TE & R Suit No. 48/62 of 2009 (suit premises). The suit premises were originally owned by Mr. Navalchand Jhaveri, which was sold by his heirs to Baria Family by Indenture dated 23 December 1938. On the same day, Barias entered into an Indenture of Lease with Tarachand Navalchand Jhaveri and Ratanchand Navalchand Jhaveri granting lease of the suit property in their favour for a period of 999 years commencing from 23 December 1938. After death of the original Lessees-Tarachand Navalchand Jhaveri and Ratanchand Navalchand Jhaveri, the lease of the subject property devolved on their heirs, who are collectively referred for the sake of convenience as 'Jhaveris'. Jhaveris inducted New Era Textiles Pvt. Ltd. as their lessee in the subject property which claims to have sold its machinery to its successor in interest, M/s. New Era Fabrics Ltd. (New Era). Jhaveris filed Suit No. 236 of 1968 against New Era for illegal occupancy, in which Consent Terms were entered on 6 July 1977 in which Jhaveris recognised New Era as their monthly tenant. According to Petitioners, New Era illegally sublet certain portions of suit premises to Johnson Dye Works Pvt. Ltd. (Johnson Dye) and four other companies viz. Home Care Retail Marts (P) Ltd., Television 18 India Limited, Hanil Era Textiles Ltd. and Royal Energy Ltd., all of whom are impleaded as Defendant Nos.2 to 6 in TE & R Suit No. 48/62 of 2009.

5. Jhaveris terminated monthly tenancy of New Era in respect of the subject property and filed TE & R Suit No. 48/62 of 2009 against New Era and Defendant Nos. 2 to 6 described above, seeking their eviction from the time when the termination notice dated 11 February 2009 was issued. There were 12 Plaintiffs to the suit, all members of Jhaveri Family. The suit is filed under Section 41 of the Presidency Small Causes Courts Act, 1882 on the ground that paid up capital of New Era was more than Rs.1 crores. This aspect now stands confirmed on account of Order passed by Small Causes Court on 26 March 2014, its Appellate Bench dated 27 February 2017, this Court by Order dated 7 June 2017 and by the Apex Court's Order dated 9 April 2018. New Era filed Contempt Petition No. 73 of 2009 alleging breach of consent terms dated 6 July 1977 which was withdrawn by New Era on 1 April 2011 making a statement that it would not raise a contention in the eviction suit about breach of consent decree dated 6 July 1977 by Jhaveris.

6. In the mean