BHAILALHUKAMCHAND SHAH Vs. NARANDAS SHAMJI

JUDGEMENT

(1.) Special leave granted.

(2.) This appeal is directed against the judgment of the High Court of Bombay in Writ Petition No. 1949/83 whereby the High Court dismissed the writ petition filed by the present appellants. The brief facts giving rise to this appeal are as under: The respondent Narandas Shamji (deceased) was the owner of Room No. 7 situated on the ground floor of Narayan Niwas, Podar Estate, Malad (East) Bombay-64 (hereinafter called the 'suit premises'). The said owner filed a suit for ejectment against his tenant Navinchand Mohanlal Barfiwala in the Court of Small Causes at Bombay. Eviction was sought on the ground that the tenant was in arrears of rent from 1 st March, 1967 and had failed and neglected to pay the same despite service of notice; that the tenant had acquired suitable residence at Vile Parle and had shifted to the said residence since the last about one year and that the suit premises had remained locked since then. Before filing the suit on 6th July, 1967, a notice terminating the tenancy was issued on 7th September, 1966 and served on the tenant at the newly acquired residence. Along with the suit a notice of motion was taken out on 8th July, 1967 to restrain the defendant from inducting a third party in the suit premises under a leave and licence agreement and an ad interim injunction was obtained to that effect on the same day which was later confirmed on 21st August, 1968. In the meantime contempt proceedings were initiated on 6 th August, 1967 alleging that the tenant had inducted the appellants herein in disobedience of the interim injunction of the Court. The notice in the said contempt proceedings was discharged by the Court in view of the facts disclosed in the affidavit filed by the appellant B.H. Shah and the contents of the leave and licence agreement Exh. 5 dated lst April. 1967. The learned Judge while taking note of the said agreement observed as under:

(3.) Against the said order a Civil Revision Application was filed in the High Court but the same came to be dismissed. The tenant did not contest the eviction suit and an ex parte decree for eviction was passed therein on 8th October, 1973 solely on the ground that the tenant had acquired a suitable residence elsewhere and had kept the suit premises locked for over 6 months prior to the institution of the suit. It may here be mentioned that notwithstanding the observations made by the Court in the contempt proceedings the owner did not choose to make the appellant B. H. Shah party to the eviction suit.