MARY DSOUZA Vs. DOMNIC JOHN DSOUZA

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India challenging the decree of eviction passed against the petitioner by the Court of Small Causes at Bombay in R.A.E. Suit No. 777/5781 of 1967 and confirmed by the Appellate Bench of the same Court in Appeal No. 463 of 1975. A somewhat curious development took place during the course of this litigation and that needs to be mentioned.

(2.) The suit was originally filed by two plaintiffs in the year 1967 against the petitioner on various grounds, one of which was that the petitioner has committed a breach of the condition of the tenancy by providing accommodation in the suit premises to persons who are called the paying guests. The suit premises consist of four rooms and a kitchen in a building situated on Plot No. 127-A at Bandra in Bombay. It may be mentioned at this stage that the suit premises were originally tenanted by one Noel DSouza, the son of the present petitioner. After his death and with the concurrence of his brothers, the tenancy of the suit premises was transferred to the present petitioner. The petitioner was recognised as the tenant of the suit premises on the same terms and conditions subject to which the said Noel DSouza had held the said tenancy. By a document, which has been called an indenture, made on 2nd of February, 1959 between the two plaintiffs and the said Noel DSouza, it was provided that the tenant would not keep paying guests, licensees or caretakers in the flat without the previous consent of the owners. This was clause 4 in the said document. Similarly, Clause 10 of the said document had provided that the tenant would not sublet, assign, underlet or part with the possession of the flat or any part thereof without he previous consent in writing of the owners.

(3.) In the suit the allegation of the plaintiffs was that the petitioner has, contrary to the condition of the tenancy laid down in the abovementioned documents, kept paying guests in the suit premises. It was also alleged that she had from time to time sublet the suit premises to others. By his judgment and order dated 28th of February, 1975 the learned trial Judge decreed the suit on the ground that there was a breach of the condition relating to the prohibition of taking paying guests in the suit premises. At this stage it may be mentioned that the second plaintiff died in the year 1970 during the pendency of the suit. Against the decree so passed, the petitioner preferred an appeal, being Civil Appeal No. 463 or 1975, during the pendency of which the first plaintiff, namely Domnic John DSouza, also expired. The present respondent being the daughter of the original plaintiffs has prosecuted these proceedings as their heir and legal representative.