CRA. 289-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 289 OF 2011 Marshall Rajesh Fernandes & Ors. ...Applicants Vs. Domnic Peter Fernandes & Ors. ...Respondents *** Mr. V. R. Tripathi i/b Tripathi & Associates, for the Applicants. Mr. P. S. Madkikar, for Respondent Nos. 1. Mrs. Bina R. Pai, for Respondent No. 2. *** CORAM: V. M. KANADE J. DATE : JULY 11, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the applicants & learned counsel appearing for respondent Nos. 1 and respondent No. 2. Respondent No.1 filed a suit against respondent No.2 seeking the eviction from the suit premises. In the said suit it was alleged that respondent No. 1 is a licensor and respondent No.2 is a licensee. In the said suit, an application was filed by the present petitioner and it is alleged that he has 50% share in the suit premises by virtue of a Will, which was executed by original owner and as a result CRA. 289-11 - 2 - relief was claimed that he should be added as a party defendant in the said suit. Said application was rejected by the trial Court and also by the lower appellate court. Being aggrieved by the aforesaid order, present Civil Application is filed. 2. It is submitted that the applicant is the proper and necessary party since any decision in the said suit is affecting his right in respect of the the suit premises. He submitted that, secondly, the trial court had directed the respondent No.2 to deposit certain amounts during pendeny of the said suit. It is submitted that applicant has 50% share in the said amount which was deposited and if the applicant is not allowed to be added as party defendant, he would not be able to recover the said amount. 3. On the other hand, it is submitted by the learned counsel for respondent No.1 that applicant herein is claiming his right in respect of the premises on the basis of a Will, which is not probated. Secondly, it is submitted that both the courts below have taken into consideration the submissions of the applicant and has rejected his application and therefore, no case is made out for interfering with the impugned order. In my view, there is some substance in the submission made by respondent No.1. It is admitted that the Will on the basis of which respondent No.1 CRA. 289-11 - 3 - is claiming 50% share is not yet probated by this Court and the said Probate Petition is pending. Secondly, Applicant can independently file a suit and claim 50% share in the income which is earned by respondent No.1 from the suit premises. Hence, no case is made out for interference with the impugned orders passed by both the courts lower courts. Civil Revision Application is, therefore, dismissed. 4. At this stage, learned counsel appearing for the applicants submits that stay may be granted for a period of two weeks since respondent No.1 may withdraw the balance amount. In my view, this is not a fit case for granting the stay since the applicants can recover the said amount by taking out an appropriate proceedings. Hence, this request is rejected. [ V. M. KANADE J.]