SAIFUDDIN SALEBHAI BOHARI Vs. SADASHIV RAMCHANDRA KULKARNI

JUDGEMENT

(1.) THIS is a petition arising out of proceedings instituted by the first respondent under Order 21, Rule 103 of the Code of Civil Procedure before its amendment in 1976. The circumstances which led the first respondent to file the suit must necessarily be narrated in order to understand the controversy between the parties. On 1st of September, 1962, Rent Note was executed by the second respondent in favour of the petitioner. Under this rent note, which was shown as between Mrs. Kamal Kulkarni, namely the second respondent, on behalf of Messrs. Kamal Trading Company and the petitioner certain premises at Lonvala in Maval Taluka of Pune District were taken on lease on a monthly rent of Rs. 25. The rent note was originally valid for eleven months, but subsequently since the lessees remained in possession they become the tenants for all practical purposes under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1974, hereinafter referred to as "the Bombay Rent Act."

(2.) ON or about 6th of February 1971, the petitioner served a notice on the second respondent informing her that he required the premises herein-after referred to as "the suit premises", for his own use and occupation, a ground which is available to a landlord under Section 13(1)(g) of the Bombay Rent Act. Immediately after this notice, the second respondent filed an application for the fixation of standard rent and in this application, it is said, she described herself as the proprietress of Kamal Trading Company. On 28th February, 1972 the suit being Regular Civil Suit No. 81 of 1972, filed by the petitioner against the second respondent was decreed. Her appeal being Civil Appeal No. 705 of 1972, was dismissed on 16th of June, 1973.

(3.) UNDER the then existing provisions of Order 21 of the Code, the first respondent had a right to file a suit for a declaration that the decree under execution was not binding upon him. The first respondent therefore, filed a suit, being Civil Suit No. 148 of 1975, which was dismissed by the Court of first instance by its judgment and order dated 30th of January, 1982. The first respondent thereafter preferred an appeal being Civil Appeal No. 718 of 1982, which was heard and allowed by the learned appellate Judge by his judgment and order dated 10th of October, 1984. The effect of this decision was that the decree which had been passed against the second respondent in Regular Civil Suit No. 81 of 1972 was held to be not binding upon the first respondent and, therefore, it could not be executed against the first respondent who claimed to be in possession of the suit premises. It is this order of the appellate Judge passed in Civil Appeal No. 718 of 1982 that is the subject matter of challenge in this petition under Article 227 of the Constitution of India.