HANSABEN PURSHOTAM PARMAR Vs. KAMLABEN BABULAL BHATT

JUDGEMENT

(1.) This civil revision application challenges an order passed by the appellate bench of the Court of Small Causes in an execution appeal. The appeal was against an order passed on an obstructionist notice. The Applicants herein were the obstructionists. The trial court, by its order dated 14 October 2016, allowed the obstructionist notice declaring the obstruction made by them to the execution of the warrant of possession issued in favour of the Applicants/ Appellants as illegal. That order has been confrmed by the appellate bench of the Court of Small Causes.

(2.) Respondent Nos.1(a) to 1(b) are legal heirs of original Respondent No.1 (since deceased and deleted from the cause title, who was the original Plaintif in the eviction suit). The deceased Plaintif claimed to be the landlord of the suit premises, being Room No.8 at Krishna Bhuvan, 14/16 Sindhi Galli, Mumbai - 400 004 and sought eviction of Respondent No.2 herein (original Defendant). The predecessor of the Defendant was a tenant of the suit premises. The suit was fled against the Defendant, as a tenant on transmission, on two grounds, namely, default in payment of rent and bona fde need of the Plaintif landlord. The suit was decreed on 4 November 2004, directing the Defendant to handover possession of the suit premises to the Plaintif. The order of eviction passed by the trial court was carried in appeal before the appellate bench of Court of Small Causes by the Defendant. The appeal was dismissed on 22 December 2006. Against the judgment and decree of the appellate bench, the Defendant fled a CRA (Civil Revision Application No.42/2007) in this court. This court, by its order dated 5 May 2008, dismissed the CRA. On an undertaking submitted by the Defendant to vacate the suit premises by 31 October 2008, this court, whilst dismissing the CRA, granted time to the Defendant to vacate the suit premises. The undertaking was, accordingly, fled by the Defendant on 13 May 2008. She, however, did not vacate the suit premises as per that undertaking. The Plaintif, accordingly, applied for a warrant of possession in execution proceedings. The warrant was ordered to be issued. On 9 February 2009, when the bailif of the court went to execute it, the warrant of possession was obstructed by the Applicants / Obstructionists. The obstructionists are, respectively, mother and brother of the Defendant. Based on their obstruction, the Plaintif fled an obstructionist notice. It was the case of the Plaintif that the obstructionists have no independent right to stay in the suit premises and could not obstruct the warrant of possession issued by the court. During the pendency of the obstructionist notice, the original Plaintif died and her legal heirs (Plaintif Nos.1(a) and 1(b), who are Respondent Nos.1(a) and 1(b) in the present application) were brought on record.

(3.) The case of the obstructionists before the trial court was that the Plaintif had played a fraud on court by knowingly not joining them as party defendants to the suit, though they were both legal heirs and family members of the original tenant (since deceased). It was submitted that both obstructionists had been residing in the suit premises along with deceased tenant and had continued to do so as of the date of the obstructionist notice. It was submitted that they were protected joint tenants in respect of the suit premises and could resist eviction in their own right as such protected tenants. The obstructionists claimed ignorance about the fling of the eviction suit. They claimed to have obtained knowledge of the same only in the course of execution of the eviction decree. It was claimed by the obstructionists that after the death of the original tenant, Applicant No.1 herein (obstructionist No.1) was paying rent of the suit premises to the Plaintif. It was submitted that the Plaintif knew this fact very well and despite such knowledge, did not join her or Applicant No.2 herein (obstructionist No.2) as party defendants. It was submitted that the Applicants could resist eviction in their own independent right as protected tenants upon transmission of tenancy from the original deceased tenant.