ABAS SALEBHAI BADRI Vs. PERVIZ DHAMJI SHAH MAGRALIA

JUDGEMENT

(1.) THIS first appeal is filed against the judgment and decree, dated August 12, 1992, passed by the City Civil Court in Short Cause suit No 3810 of 1988. The appellants who are the original plaintiffs, had filed this suit lor a declaration that they are not bound by the judgment and decree passed by the City Civil Court in Short Cause No. 7633 of 1984 obtained by the respondents against Ibrahim and Mohd. Botawala in respect of the suit premises. The appellants, the original plaintiffs, mainly contended that Mohd. Botawala had sublet the suit premises to the appellants on september 1, 1984, and after the said sub-lease the appellants have been residing in the suit premises.

(2.) THE respondents had filed a suit being Short Cause Suit No 7633 of 1984 against Ibrahim and Mohd. Botawala on December 4, 1984 under section 6 of the Specific Relief Act, and contended that Ibrahim and Mohd. Botawala had obtained the suit premises unauthorisediy on June, 25, 1984. In the said suit the City Civil Court had passed a decree against the said ibrahim and Mohd. Botwala against which they had filed a revision in the high Court but the same was also dismissed. In the said suit the City Civil court came to the conclusion that the possession obtained by Ibrahim and mohd Botawala was unauthorised and, therefore, the Courts ordered both of them to handover the possession to the respondents. In the trial Court it was mainly contended on behalf of the plaintiffs that Mohd Botawala on september 1, 1984 i. e. much prior to the filing of suit No. 7633 of 1984 had created sub-tenancy in favour of the present appellants and, therefore, the decree obtaine by the respondents in Short Cause Suit No. 7633 of 1984 is not binding upon them. The trial Court after hearing both the sides dismissed the suit filed by the appellants. Against this decision the present appellants have preferred this first appeal.

(3.) MR Muchhala, the learned Counsel appearing on behalf of the appellants contended that admittedly on September I, 1984 when sub-tenancy was created in favour of the present appellants by Mohd. Botawala the said short Cause Suit No. 7633 of 1984 was not Sled. Therefore, the decree passed in that suit which was obtained by the said respondents as against Mohd. Botawala and his father is not binding upon them. It was further contended by mr. Muchhala that the said Mohd. Botawala was also a functionary and had power to sub-let the premises as a tenant of the same at the time when the sub-lease was created in favour of the present appellants on September 1, 1984. Therefore it was contended on behalf of the appellants that even if both, mohd Ibrahim and Botawala were ordered to hand over possession of the said premises still, their right under the will to let out the premises is not as yet decided and the same is pending before the competent Court.