LAXMIDAS MORARJI Vs. BEHROSE DARAB MADAN

JUDGEMENT

(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 House 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.