1 WP No.820/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.820 of 2011 Mangilal Chunilal Parmar ... Petitioner versus (i) Smt.Sangeeta Babulal Shah (ii)Unknown heir of Smt.Shantaben D. Shah(since deceased) ... Respondent ... Mr. J.G. Damani for the petitioner Mr.V.R.Sutrale for respondent no.1. CORAM : D.G. KARNIK, J DATED : 11th February 2011 P.C. 1. This petition is directed against the order dated 24 February 2010 passed by the Small Causes Court, Bandra setting aside an ex-parte decree passed in Suit No.159/04 and restoring the suit to file. 2. The facts of this case are rather peculiar and need to be mentioned. 3. The petitioner is the owner and landlord of the property known as “Jagdamba Niwas” situated at Plot no.54, Kasturba Cross Road No.3, Borivali (East) Mumbai. One Shantaben D.Shah was a tenant in the 2 WP No.820/11 property occupying one room therein. Shantaben died in January 2001 and the fact of her death became known to the petitioner in March 2001 when he went to collect the rent. Sometime in the year 2003-2004, the petitioner filed a suit bearing RAE Suit no.159/04 for eviction. The array of the parties to the suit was rather peculiar. The defendant no.1 in the said suit was named as “Unknown heir of Smt.Shantaben D. Shah”. The Additional Registrar, Small Causes Court was arrayed as the defendant no. 2. It appears that the summons of defendant no.1 (unknown heir of Smt.Shantaben D. Shah) was served under Order 5 Rule 20 of the Code of Civil Procedure by publication in a newspaper known as “Navakal”. When the decree was put to execution, a notice was issued before issuance of a warrant and the notice was pasted on the suit premises. Smt.S.S.Shah who claims to be an heir of Shantaben D. Shah and who claims to have inherited the tenancy came to know of the execution proceedings when she read the notice of execution pasted on the premises after her return from the market. She therefore applied to the court for setting aside of the ex-parte decree. The trial court allowed the application and restored the suit to file by the order dated 24 February 2010. That order is impugned in the present petition. 4. In my view, no exception can be taken to the order passed for restoration of the suit to file. The suit itself was defective. A suit cannot be filed against a defendant by describing an “Unknown heir of a deceased”. The respondent herein claims to be an heir of the deceased Shantaben and claims to have inherited the tenancy under section 7(15) (d) of the Maharashtra Rent Control Act. Petitioner ought to have joined the respondent no.1 as a party to the suit. If according to him, respondent no.1 was not the heir but the deceased was survived by some other heirs, he ought to have joined those heirs as a party to the suit. The suit as filed itself was defective and the trial court committed no error 3 WP No.820/11 in setting aside the ex-parte decree in the facts and circumstances of the case. 5. In any event, if respondent no.1 is an heir and claims to have inherited the tenancy under section 7(15)(d) then summons of the suit ought to have been issued to her. As the suit was heard ex-parte without any heirs being made as party to the suit and without being served, the trial court committed no error in setting aside the ex-part decree. Accordingly, writ petition is rejected summarily. (D.G.KARNIK, J)