WP/316/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.316 OF 2010 Hilda Lewis w/o. James Lewis ... Petitioner V/s. Alex Vernon Fonseca ... Respondent Mr.D.S. Chandnani for Petitioner Mr.P.S. Dani for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 18, 2010 P.C.: 1. The application has been filed challenging the order passed by the appellate Court allowing the appeal filed by the landlord, the respondent herein. The petitioner and her husband were inducted into the suit premises by one G.A. Monteiro in 1958 who was the tenant of the landlord. The landlord had filed an earlier suit against the Petitioner being RAE Suit No.268/579 of 2004 for eviction on the ground of bonafide requirement. That suit it appears was dismissed for default. 2. The present suit has been filed by the landlord in 2004. The trial Court dismissed the suit on the ground that it was not maintainable because the original tenant was not made a party to the suit and because the leave and licence agreement between the original tenant and the petitioner was neither placed on record nor proved. WP/316/2010 : 2 : 3. Being aggrieved by the order of the trial Court, the landlord filed an appeal. The appellate Court has found that the suit was maintainable and has, therefore, allowed the appeal. While allowing the appeal, the appellate Court recorded the statement made on behalf of the Petitioner that she did not desire to challenge the findings of the trial Court on merits. Even in this Court when I enquired with the learned advocate for the Petitioner whether he seeks to challenge the findings of the trial Court on merits inasmuch as the finding of the trial Court that the premises are required bonafide by the landlord, the learned advocate answered in the negative. 4. Therefore, the only question which arises herein is whether the original tenant was a necessary party to the suit as tried to be made out by the Petitioner and whether the suit was maintainable before the Small Causes Court. In my view, both these issues have been answered correctly by the appellate Court. The landlord has proceeded on the footing that Moneiro was the original tenant and he had sublet the suit premises prior to 1959 to James Lewis who died in January 2002. The Petitioner being his widow was residing in the suit premises at the time of his death. The landlord therefore accepted her as his tenant. He has also stated that she was paying Rs.210/- per month as the rent. It is submitted on behalf of the Petitioner that no leave and licence agreement has been placed on record nor has the landlord established that the Petitioner was a tenant. 5. In my opinion, this submission of the learned advocate for the Petitioner is untenable. The landlord has contended that the premises were sublet illegally by the tenant to the sub-tenant. The landlord then accepted the Petitioner as his tenant in WP/316/2010 : 3 : view of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act and the Maharashtra Rent Control Act. The landlord then filed a suit under 16(1) (g) of the Maharashtra Rent Control Act on the ground that he bonafide required the suit premises. Thus, the question of joining Monteiro does not arise. Furthermore, the landlord has always accepted the Petitioner as a tenant and, therefore, the suit for eviction under section 16(1)(g) of the Maharashtra Rent Contro Act will have to be filed before the Small Causes Court and not before any other Court as sought to be urged by the learned advocate for the Petitioner. 6. It is submitted on behalf of the Respondent that in view of the earlier suit which was dismissed, a second suit on the ground of bonafide requirement could not have been filed. Reliance is placed on the judgment of the Supreme Court in the case of Suraj Rattan Thirani & Ors. vs. Azamabad Tea Co. Ltd., AIR 1965 SC 295. In my opinion, this judgement has no application. The suit filed earlier by the landlord against the tenant on the ground of bonafide requirement was dismissed for default. Even assuming the suit had been tried and dismissed on the ground that at that point of time when the earlier suit was filed there was no bonafide requirement, the landlord is not precluded from filing a suit thereafter if the bonafide requirement exists at a later point of time. 7. In these circumstances, in my view, the impugned order must be upheld. Before I passed this order, I had enquired from the learned advocate for the Petitioner whether the Petitioner wanted to continue to reside in the suit premises for a period of two years considering her advanced age of 80 years. However, on instructions, he has stated that the Petitioner has wanted to proceed on merits. WP/316/2010 : 4 : 8. Writ Petition is accordingly rejected. 9. On the application made by the learned advocate for the applicant, the decree shall not be executed for four weeks on condition of submitting an undertaking in this Court in the usual terms within two weeks from today.