Back
Supreme Court of India
THE HONOURABLE MR. JUSTICE B.N. AGRAWAL, THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE H.L. DATTU
Laxmidas Morarji (Dead) by LRs.
Versus
Miss Behrose Darab Madan
CIVIL APPEAL NO.5786 OF 2002 WITH CIVIL APPEAL NO.5787 OF 2002
Decided on : 18-09-2009
(b) Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 – Section 28 – Mere denial of relationship of landlord and tenant cannot oust the jurisdiction – Appellant not considering the respondent as tenant – Adducing evidence disqualifying respondent as tenant – Courts not finding relationship of tenant and landlord – Small Causes Court at Bombay lacking jurisdiction. (Para 21)
(1969) 1 SCC 884; (1964) 1 SCR 259 – Relied upon
(c) Constitution of India – Article 142 – Power under – Constitutional residuary power based on equitable principles – Cannot be controlled by any statutory provisions – However, power under Article 142 cannot be used to supplant the law – No order can be passed or relief granted which is inconsistent with or goes against the substantive law – Should be exercised only when existing provisions incapable of tackling the situation effectively or bringing about complete justice between the parties. (Para 23)
(2004) 2 SCC 130 – Relied upon
(1995) 3 SCC 757 – Referred
Facts of the case:
Mr. Salehbhai Alibhai Rangwala was the owner of a building then known as Mohamedali Mansion, situated at 241, Princess Street, Bombay. Flat No. 2-B on the second floor of the building had been let out to one Dosabai, the brother of Ms. Dhanbai Batliwala, (`deceased-tenant). Dhanbai was staying with her brother in the suit premises. After the death of her brother in the year 1953, Dhanbhai became the tenant of the suit premises. She expired on 17.12.1963. She, in her last will dated 24th April, 1959, had appointed the trustees and executors of her will.
Since the trustees and executors of the will failed to vacate the suit premises despite notice, the original owner filed Suit seeking recovery of possession of the suit premises and for payment of Rs.3018.90 paisa, being the arrears of rent for the period from 01.11.1964 to 31.03.1967. In the suit filed, it was specifically stated, that, the defendant No. 5 (respondent) is not the tenant and has no legal and valid claim over the suit premises and therefore no notice was required to be given to her, however, she is arrayed as a party in the suit by way of caution and to avoid any technical objection in future. It was also mentioned in the suit, that, the defendants 1 to 4 (trustees and executors of the will) have parted with the possession of the suit premises to defendant No.5, respondent in this appeal.
The Small Causes Court dismissed the suit.
The original owner preferred an appeal which was dismissed.
The appellant filed writ petition which was also dismissed.
Since the aforesaid order had been passed without hearing the learned counsel for the petitioner, an application for review came to be filed by the petitioners to review the order passed in the Writ Petition. It was dismissed.
Finding of the Court:
Small Causes Court did not have jurisdiction.
Result:
Appeals dismissed.
Judgment :-
H.L. Dattu, J.
1) These appeals are directed against the decision of Bombay High Court in Writ Petition No.519 of 1987 dated 12.02.1998 and the order passed in Civil Application No.5701 of 2000 in Writ Petition No.519 of 1987 dated 30.8.2001. By the impugned order, the High Court, has dismissed both the writ petitions and also the civil application.
2) The facts leading to these appeals are as under:- Mr. Salehbhai Alibhai Rangwala was the owner of a building then known as Mohamedali Mansion, situated at 241, Princess Street, Bombay. The Flat No. 2-B on the second floor of the building, (hereinafter referred to as `the suit premises) had been let out to one Dosabai, the brother of Ms. Dhanbai Batliwala, (hereinafter referred to as the `deceased-tenant), on a monthly rent of Rs. 104.10 paisa. Dhanbai was staying with her brother in the suit premises. After the death of her brother in the year 1953, Dhanbhai became the tenant of the suit premises by virtue of Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (`the Act for short). She expired on 17.12.1963. It appears that the deceased tenant in her last will dated 24th April, 1959 had appointed the trustees and executors of her will. Sometime in the early part of the year 1965, the original owner had sent notice to the trustees and executors of the will of the deceased tenant to hand over the vacant possession of the suit premises and also to pay the arrears of rent alleged to be due from 01.11.1964. Since the trustees and executors of the will failed to vacate the suit premises, the original owner filed Suit No.310 of 1967 before the Court of Small Causes at Bombay, against the trustees and the respondent in this appeal, inter-alia seeking recovery of possession of the suit premises and for payment of Rs.3018.90 paisa, being the arrears of rent for the period from 01.11.1964 to 31.03.1967. In the suit filed, it was specifically stated, that, the defendant No. 5 (respondent) is not the tenant and has no legal and valid claim over the suit premises and therefore no notice was required to be given to her, however, she is arrayed as a party in the suit by way of caution and to avoid any technical objection in future. It was also mentioned in the suit, that, the defendants 1 to 4 (trustees and executors of the will) have parted with the possession of the suit premises to defendant No.5, respondent in this appeal.
3) In the written statement filed, respondent apart from others, had stated that the court of small causes at Bombay has no jurisdiction to entertain the petition, since the landlord of the premises has not accepted her as a tenant of the suit premises; she has been adopted as a daughter by the deceased tenant; deceased tenant has by her last will, bequeathed the tenancy rights of the suit premises; she is the daughter of sister of the deceased tenant and was residing with the deceased tenant and, therefore, would fit in to the definition of a tenant as envisaged under Section 5(11)(c)(i) of the Act and, therefore, entitled to an eviction notice.
4) The Small Causes Court, while dismissing the suit by its order dated 02.07.1977, held that, the law of adoption is unknown to the Parsis and the defendant No.5 (respondent) has proved the fact that she was residing with the deceased tenant as a member of her family and as such she is entitled to claim tenancy rights under the provisions of Section 5(11)(c)(i) of the Act.
5) The original owner along with the predecessor of the present petitioners, being aggrieved by the judgment of the court of Small Causes at Bombay preferred an appeal before the court of Small Causes at Bombay in Appeal No.74 of 1978. The appellate court, on consideration of oral and documentary evidence held that, there was no landlord and tenant relationship between executors of will and the petitioners and therefore the suit itself was not maintainable. The respondent retains the tenancy rights as she was th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
