A person claiming tenancy rights under Section 5(11)(c) of the Bombay Rent Act must prove substantial residence with the tenant as a family member, which the applicant failed to establish.

JUDGMENT :

Sandeep V. Marne, J.

1. Revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 is invoked to set up a challenge to the judgment and decree dated 20/21 February 2006 passed by the Appellate Bench of the Small Causes Court. The Appellate Bench allowed Appeal No. 532 of 2001 filed by Respondent No. 3/Defendant No. 3 and set aside judgment and decree dated 12 March 2001 passed by the learned Judge of the Small Causes Court, by which R.A.D. Suit No. 4857 of 1988 filed by the Applicant /Plaintiff was allowed and he was declared as tenant in respect of the suit premises.

2. The Applicant is aggrieved by the decision of the Appellate Bench of the Small Causes Court, which has set aside the declaration made by the learned Judge relating to his tenancy in respect of the suit premises. The short issue that arises for consideration in the present Revision Application is whether the Applicant /Plaintiff can be held to be a tenant in his capacity as family member of the deceased original tenant residing with her within the meaning of Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Bombay Rent Act). A brief factual narration for better understanding of the issue at hand would be necessary.

3. Residential premises being first floor consisting of seven rooms, two rooms on the landing between first floor and the ground floor, two W.Cs., two bathrooms, four passages and one gallery situated at Sohni Mansion, 107 Cumballa Hill, Mumbai-400 036 are the 'suit premises'. Ms. Dinamai Rustomji Master (Dinamai) was the monthly tenant in respect of the suit premises. Defendant Nos. 1 and 2 are the original landlords. It appears that Dinamai has sub-let portion of the suit premises, being four rooms, two rooms on landing, one W.C. and one bathroom and two passages to Dr. Kaikhshroo Madan and Mrs. Banubai K. Madan in or about 1958 (sublet premises). Dinamai remained in the possession of the balance three rooms, one bathroom, one W.C. and two passages and a gallery. Dinamai passed away on 13 November 1977 in the suit premises. Plaintiff claims to be nephew of original tenant-Dinamai and further claimed that he started residing with Dinamai since the year 1974. After Dinamai's death, Applicant continued his residence in the suit premises and addressed correspondence with the original landlord-Defendant Nos. 1 and 2 for asserting his rights as tenant in respect of the suit premises. It appears that the building was auctioned by the Municipal Corporation for non-payment of taxes and Defendant Nos. 3 & 4 purchased the same on 17 May 1984. However, Defendant Nos. 1 and 2 challenged the auction sale and Court Receiver was appointed in respect of the property, which was subjected for auction sale. This prevented Respondent Nos. 3 & 4 from taking possession of the auctioned property.

4. In the above factual background, Plaintiff /Applicant first filed R.A.E. Suit No. 1196/36 of 1988 against the heirs of Dr. Kaikhshroo Madan (sublettees) in Small Causes Court seeking their ejectment. Additionally, Applicant /Plaintiff also filed R.A.D. Suit No. 5813 of 1988 in the Court of Small Causes for declaration that he is the tenant in respect of the suit premises within the meaning of Section 5(11)(c) of the Bombay Rent Act. In the Suit, he impleaded original landlords (Defendant Nos. 1 & 2), auction purchasers (Defendant Nos. 3 & 4) and sublettees (Defendant Nos. 5 to 8). The Suit was contested by Defendant No. 3 (auction purchaser) by filing written statement in the year 1991. It appears that Defendant Nos. 6 to 8 also filed their written statement. On account of sale of the premises to Defendant No. 3, it appears that Defendant Nos. 1 and 2 did not file their written statement. Parties led evidence in support of their respective claims. Plaintiff examined himself as PW1. Neither Defendant Nos. 1 and 2 nor Defendant No. 3 led any evidence. However, they cross-examined PW1. Defendant Nos