B S MAHAJAN Vs. CHAPSEY R MISTRY

JUDGEMENT

(1.) This is a writ petition under Article 227 of the Constitution of India seeking to quash and set aside the judgment and decree passed on the 21st of October, 1985 by the Appellate Bench of the Court of Small Cause at Bombay in Appeal No. 30 of 1079. The brief facts leading up to the present petition may be stated as under :---

(2.) One Shamrao Mahajan was the owner of the property known as Sita Niwas at Vallabhbhai Patel Road, Vile Parle (West), Bombay 400 056. He was on friendly terms with one Raisi Mistry and Sometime in the year 1941, the said Shamrao created a tenancy in respect of a two-room premises on the northern side, on the ground floor in the aforesaid building Sita Niwas, the exact date not being known to any of the parties. The exact purpose for which the suit premises was let out has not clearly been established but it appears that the same was let out for the purpose of office-cum-godown as will appear herein below. The said Shamrao Mahajan passed away on the 23rd August, 1961 and the said Raisi Mistry to whom the suit premises had been let out also passed away in the year 1963. It seems that in the month of August 1963, the respondent being one of the sons of the late Raisi Mistry, had made a payment of Rs. 400/- by cheque towards the rent in respect of the suit premises which had been accepted.

(3.) By a notice dated 29th September, 1970, addressed by the learned Advocate for the petitioners being the heirs and legal representatives of the late Shri Shamrao Mahajan to the respondent and other heirs and legal representatives of the late Shri Raisi Mistry , it was, inter alia, contended that the rent in respect of the suit premises had fallen in arrears and that the premises in question had not been used for the past over 17 years. By the said notice, the tenancy in respect of the suit premises was terminated. This was followed by the filing of R.A.E. and R Suit No. 6449 of 1970 in the Court of Small Cause at Bombay by Shri B.S. Mahajan , Smt. Malini alias Malti V. Vazumdar, heirs and legal representatives of Shri Shamrao Balaji Mahajan against the respondent herein seeking a decree in eviction against him in respect of the suit premises on the grounds of arrears of rent and non-user of the suit premises for the purpose for which it had been let out. This suit appears to have been filed on 19th December, 1970. The Respondent being the sole defendant in the suit, filed his written statement wherein he raised a variety of pleas denying that the original plaintiffs were entitled to any reliefs and pointing out inter alia that the alleged notice dated 29th September, 1970 had never been received by the Respondent and/or by the other heirs and legal representatives of the Late Shri Raisi Mistry and pointing out further that the Respondent was residing in a building adjoining the suit premises and was using the suit premises to the knowledge of the original plaintiffs who had however deliberately chosen not to serve the alleged notice upon the defendant personally. It may be mentioned that on an application made by the respondent, an order was passed on 8th April, 1972 by the trial Court by which the respondent was permitted to deposit in Court the arrears of rent and it appears that thereafter the respondent has been depositing in Court the amount of monthly rent from time to time. The trial Court by a judgement and decree dated 20th October, 1978, decreed the suit directing the respondent to deliver vacant possession of the suit premises on or before 1st of January, 1979 and to pay to the plaintiffs Rs. 612/- and granting other reliefs. It may be mentioned that the trial Court had framed issues covering the questions whether the notice dated 29th September, 1970 was legal, valid and had been property served (which issue is answered in the negative), whether the suit was bad for non-joinder of necessary parties of all the heirs and legal representatives of the deceased Shamrao Balaji Mahajan as also the deceased Raisi Ministry (which was answered in the negative), whether the suit premises had not been used at all or had been kept vacant and whether the respondent was a wilful defaulter and whether the petitioners were entitled to get possession (all of which the trial Court answered in the affirmative).