1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.420 OF 2008 Smt. Shakuntala Ganpat Bhalekar, Aged 52 years, Occ: Nil, residing at H.No.308-B, Shanivar Peth, .... Applicant Pune-411 030. (Ori. Defendant) - Versus - Maruti Nana Shinde, Aged 70 years, Occ: Retired, residing at Plot No.40-41, 16A Girikunj Society, 1st Floor, above Maharashtra State Co-operative Bank, Shastri Nagar, Santacruz (W), Mumbai-400 054 and having old house at M/40, Room No.1793, Maharashtra Housing Board, Yerawada, .... Respondent Pune-411 006. (Ori. Plaintiff) Shri Mandar Limaye for the Applicant. Shri Maruti Nana Shinde, the Respondent in-person. CORAM: R.C. CHAVAN, J. DATED: JUNE 07, 2010 ORAL JUDGMENT: 1. This revision application is directed 2 against the judgment and order passed by the learned District Judge, Pune, partly allowing the applicant's appeal against the judgment of the learned Judge, Court of Small Causes, Pune and thereby maintaining the decree of the trial Judge declaring the respondent as the tenant of the suit premises. 2. Facts which are material for deciding this revision application are as under: The applicant is the landlord in respect of a premises comprising of two rooms of 10 ft. x 10 ft. dimension. One Laxmibai Shinde was the tenant in respect of these premises on a monthly rent of Rs.25/-. The applicant filed a suit for ejectment of Laxmibai on the ground of bona fide need. This suit came to be numbered as Civil Suit No.87 of 2000. Laxmibai died during the pendency of the suit. The applicant substituted the name of Laxmibai by that of the present respondent as Laxmibai's heir and legal representative. The suit came to be decreed ex parte. 3. The respondent questioned this decree by preferring Civil Appeal No.34 of 2002 which was allowed by the learned District Judge by his judgment dated 20-9-2004. The learned 3 District Judge remanded the matter back to the trial Court. In the meantime, the landlord had taken possession of the premises in execution proceedings. Since the landlord had taken possession of the premises in execution proceedings, the landlord withdrew the civil suit which was remanded. Thus, there is no decree against the tenant for the tenant's eviction on the ground of bona fide need. There is also no such claim by the landlord pending before any Court. 4. The heir and legal representative of the tenant then filed Regular Civil Suit No.450 of 2001 before the learned Judge, Court of Small Causes for a declaration that he was the tenant in respect of the premises and for restoration of possession. The legal representative of the tenant i.e., the present respondent had claimed that he was residing with Laxmibai at the time of her death. This factual position was contested by the applicant before the trial Court. However, the learned Judge, Court of Small Causes, upon considering the evidence tendered before him, held that the respondent was tenant in respect of the premises and, therefore, granted declaration to that effect and also ordered restoration of 4 possession. 5. As already pointed out, aggrieved thereby the landlord preferred an appeal in which the decree came to be partly reversed. 6. The learned counsel for the applicant submitted that the Courts below had held the respondent to be the tenant on the ground that the respondent was residing with Laxmibai at the time of her death when, in fact, the respondent has been residing at Santacruz, Mumbai. This, in my view, is utterly irrelevant for deciding the status of the respondent as the tenant. The question as to who becomes tenant upon the death of the person who is occupying the premises as tenant, is governed by the provisions of Section 5(11)(c) of the Bombay Rent Act corresponding to the provisions of Section 7(15)(d) of the Maharashtra Rent Control Act. The clause reads as under: "5. Definitions. (11) "tenant" means any person by whom or on whose account rent is payable for any premises and includes, (a) .... (b) .... 5 (c) in relation to any premises let for residence when the tenant dies, whether the death occurred before or after the commencement of Bombay Rents, Hotel & Lodging House Rates Control (Amendment) Act, 1978, any member of the tenant's family, residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided, in default of agreement, by the court;" Plain reading of the clause would show that even if the respondent was not residing with Laxmibai at the time of her death, it does not result in the tenancy coming to an end. The clause provides that in the absence of a member of the tenant's family residing with the tenant at the time of the tenant's death, any heir of the deceased tenant, as may be decided (by all the heirs) or in default of the agreement, as may be decided by the Court, would become the tenant. It is not the case of the applicant that there is any dispute amongst the heirs of Laxmibai about the respondent's claim to be Laxmibai's heir entitled to inherit the tenancy. In fact, the learned counsel for the applicant fairly concedes that the applicant had impleaded the present respondent as heir of Laxmibai upon Laxmibai's demise during the 6 pendency of Civil Suit No.87 of 2000. In face of this, the applicant cannot assail the declaration granted by the learned Judge, Court of Small Causes in favour of the respondent and maintained, upon appeal, by the learned District Judge. 7. In view of this, the revision application has to be rejected as there is absolutely no error in the judgment and order passed by the learned District Judge. Since the tenant has not questioned the part of the judgment of the District Judge whereby the decree of the learned Judge, Court of Small Causes ordering restoration of possession was set aside, the tenant cannot be heard to claim restoration of possession in these proceedings. 8. In this view of the matter, the revision application is rejected. (R.C. CHAVAN, J.)