1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.2223 of 2008 In Suit No.3254 of 2007 Burjor Shiavax Shroff. .. .. Plaintiff v/s. Katy Kersash Bamji & ors .. Defendants Behram Jamshed Mistry .. .. Defendant No.5 Mr.K.R. Parekh for Plaintiff. Mr.B.J. Mistry, Deft.No.5-in-person. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 6th October, 2008 P.C. : 1.This Notice of Motion is taken out by Defendant No.5 for various reliefs. The relief of action under Section 340 of the Criminal Procedure Code for offence alleged to have been committed under Section 195(1) of the Indian Penal Code can only be tried on evidence and hence can be heard along with the Suit. Certain other reliefs have already been prayed for and either granted or not granted in an earlier Notice of Motion being Notice of Motion No.166 of 2008 also taken out by Defendant No.5. Those reliefs cannot be reconsidered. 2.The main case of Defendant No.5 is that the Plaintiff has 2 been residing only in one room of the suit premises since about 1985. It is the Plaintiff's case that he has been residing along with the deceased one Coomi Wellington, who was the tenant of the suit premises since 1968. The Plaintiff also claims tenancy. 3.It is the Plaintiff' s case that he came into the suit premises since 1968 and lived along with the deceased, whose estate he has sought to administer, and her mother. The deceased expired in 1995. Defendant No.5 has claimed market rent from 1st November 2007 in respect of the suit premises. He has argued that such rent be deposited in the Court and invested pending the Suit. 4.The Plaintiff has prima facie shown that he was in use and occupation of the entire premises for a number of years prior to the death of the deceased. Defendant No.5 has produced extract of the Electoral Register to show the residence and the consequent possession of the Plaintiff at-least since 1985, 10 years prior to the death of the deceased. The Plaintiff claims to be tenant under the Maharashtra Rent Control Act. The Plaintiff has produced, inter alia, his son' s birth certificate of 1973, his daughter's medical papers of vaccination of 1971-72, the Bank passbook of his son from 3 1981, Election Identity Cards of the Plaintiff and his family members, the Ration Card of the Plaintiff and his family members from 1981 and certain photographs of the Plaintiff's family members along with the deceased in the suit premises as well as the photographs of the demolished suit premises. The documents, prima facie, show the Plaintiff's possession in the suit premises well prior to the death of the deceased. 5.Under these circumstances, the Plaintiff cannot be directed to pay market rent as claimed by Defendant No.5. However, the fact remains that the deceased died since 1995. Defendant No.5 and certain other heirs applied for heirship certificate in 1997. The Plaintiff challenged the grant of such certificate. The Plaintiff filed a Probate Petition only in 2004. That Petition has come to be dismissed on certain technical grounds. Defendant 5 has sued the Plaintiff herein in the Rent Court for declaration of tenancy. 6.In this Suit, Written Statement has already been filed. It would be in the interest of all the parties to proceed with the hearing of the Suit itself. Defendant No.5, who appears in person, as well as the Plaintiff' s Advocate state that the Suit be listed for hearing and issues be framed. There shall be no 4 order in this Notice of Motion. No order as to costs. The Suit shall be kept for framing issues on 14th October 2008. 7.The original documents produced by both the parties are returned. [SMT.ROSHAN DALVI, J.]