2024:BHC-AS:25205 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 327 OF 2023 Abhay Dushyant Desai Karta & Manager of D. N. Desai & others (HUF) age about 65 years Occupation Professional, Adult, Indian Inhabitant having address at Flat No.18, 5^th Floor, Mayfair Building, Veer Nariman Road, Mumbai – 400 020. ….Petitioner [Orig. Defendant No. 1(a)]

:Versus:

M/s. K. C. Chheda & Co., A firm registered under the Indian Partnership Act and having its Adm. Office at 39/40, Western Indian House, Sir P. M. Road, Fort, Mumbai – 400 001. ….Respondent [Orig. Plaintiff]

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Mr. Vineet Naik, Senior Advocate with Mr. Abhijit Devkhile, Mr. Murari Madekar and Mr. Sachin Kudalkar i/b M/s. Madekar & Co., for the Applicant.

Mr. Girish Godbole, Senior Advocate with Ms. Jai Kanade and Mr. Dhawal M. Visawadia i/b Harakhchand & Co., for the Respondent.

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CORAM : SANDEEP V. MARNE, J.

Reserved On : 20 June 2024.

Pronounced On : 27 June 2024.

JUDGMENT :-

1) Revisionary jurisdiction of this Court under Section 115 of the Civil Procedure Code, 1908 (Code) is invoked challenging the judgment and order dated 24 April 2023 passed by the Appellate Bench of the Small Causes Court, Mumbai, dismissing Appeal No. 03 of 2013 filed by the Applicant and confirming the Judgment and Order dated 22 November 2012 passed by the learned Judge of the Small Causes Court at Mumbai in R.A.E. & R. Suit No.436 /816 of 2004. The learned Judge of the Small Causes Court has decreed the Suit filed by Plaintiff /Respondent and has directed the Applicant/Defendant to handover possession of the suit premises to the Plaintiff on the ground that Defendant was in arrears of rent and permitted increases.

2) Facts of the case, as pleaded by the Plaintiff in the Plaint, are that Flat No.18 situated on 5^th floor of the building Mayfair, at 75-C, Veer Nariman Road, Mumbai 400 020 is the suit premises. Plaintiff claims to be the owner and landlord of the property known as ‘Mayfair Building.’ Original Defendant-Dushyant Nanubhai Desai was the Karta and Manager of D.N. Desai and others (HUF). The said HUF was inducted as tenant in respect of the suit premises on monthly rent of Rs.297.70/- inclusive of permitted increases. It is Plaintiff’s case that original Defendant paid rent in respect of the suit premises till March-1974 exclusive of permitted increases. That the original Defendant did not pay permitted increases from April 1974 despite repeated demands. That the original Defendant also did not pay rent despite of the repeated demands made by the Plaintiff. A demand notice dated 12 August 2002 was sent by Plaintiff calling upon Defendant to pay arrears of rent and permitted increases as per the statement annexed to the notice. That the notice was replied by the original Defendant on 28 August 2002 denying liability to pay the amounts demanded in Plaintiff’s letter. That the original Defendant sent cheque dated 10 November 2003 for Rs.4200/- towards rent for the period from July 2003 to 30 June 2004 @ Rs.350/- per month. The said cheque was returned by the Plaintiff. Plaintiff accordingly instituted R.A.E. & R. Suit No.436/816 of 2004 in the Court of Small Causes, Mumbai against original Defendant for ejectment on the ground that original Defendant was in arrears of rent and permitted increases for more than 6 months and that he was not ready and willing to pay the rent and the permitted increases. Plaintiff accordingly sought directions against the original Defendant for handing over vacant and peaceful possession of the suit premises and also sought to recover amount of Rs.31,513.52/- towards arrears of rent for the period from 1 April 2001 to 30 March 2004. Plaintiff also prayed for decree of mesne profit by conduct of enquiry under Order XX Rule 12 of the Code.

3) Summons in the Suit was issued on 6 May 2004, which was serv