1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4702 OF 2009 Ravindra Rajaram Shetye 64, Ganganath Krupa Matarpakhadi Road Mazgaon, Mumbai 400 010 .. Petitioner -versus 1.The Board of Trustees of the Port of Bombay and others Vijay Deep, S.V.Marg, Fort, Bombay 400 038. 2. V. B.Gandhi, 3. Dattaram Balkrishna Gandhi. 4. Mahadev Vasudev Shetye, 5. Sakharam Vithoba Shetye 6. Mangesh Gangaram Shetye 7. J. K. Parikh 8. H.K Parikh, Address of respondent Nos 2,3 7 & 8 Godown No.l9, Clive Road, Mumbai 400 009. Address of respondent Nos 5 & 6 2 At Ganganath Krupa Matarpakadi Road, Mumbai 400 010. .. Respondents. Mr. Sunil D Mogre, for the petitioner. None for the respondents. CORAM:. R. G. KETKAR, J. Order Reserved on : 4.8.2009 Order pronounced on:21/08/2009 Judgment 1. Heard Shri.Mogre, learned counsel for the petitioner. The present petition is filed by original defendant No.4 challenging the judgment and decree dated February l7, 2009, passed by the Appellate Bench of Small Causes Court, in Appeal No.534 of 2004. The said appeal was preferred by the Respondent No.l Board of Trustees of Port of Bombay challenging the judgment and decree dated December l0, 2003, passed by the learned Judge of Small Causes Court at Mumbai, in L. E & C Suit No. 409 of l996. The first respondent instituted the suit 3 against the petitioner and respondent Nos 2 to 8 herein herein under section 41 of the Presidency Small Cause Courts Act, l882. The Trial Court dismissed the suit. 2. Before instituting suit, first respondent issued notice to the joint tenants, one of them being the petitioner on August l8, l982. The said notice was issued by M.G. Katara, Assistant Manager-South Division and duly constituted attorney for the first respondent. This notice was followed by notice dated August l9, l985 through an advocate of the 1st respondent. The present suit was instituted by first respondent on June 25, l986 against the petitioner and the respondent Nos 2 to 8 herein. The plaint was affirmed by Shri A.D. Vasaigara, Estate Manager of the first Respondent. It appears that the first respondent appointed M.G. Katara and A.D. Vasaigara as its constituted attorneys among the other officers. 3. The Trial Court dismissed the suit on the ground that the petitioner and respondent Nos 2 to 8 are entitled to protection under the provisions of Bombay Rents, Hotel 4 and Lodging House Rates Control Act, l947 (for short “Act”) and in the view of the learned Trial Judge though the first respondent being local authority was exempted under section 4 of the Act. Under Maharashtra Rent Control Act Act, l999, first respondent is not included in the definition of local authority. The Trial Court accordingly held that the suit instituted by the first respondent under section 4l of the Presidency Small Cause Courts Act, l882, is not maintainable. 4. Being aggrieved by this decision, first respondent preferred appeal before the Appellate Bench of Small Cause Court. The Appellate Bench allowed the appeal and decreed the suit of the first respondent. The Appellate Court considered section 58 and 59 of the Maharashtra Rent Control Act, l999 and held that the first respondent had instituted in the year l986 and having regard to sections 58 and 59 of the Maharashtra Rent Control Act, l999, it was exempted under the Act. The suit instituted by the first respondent under section 4l of the Presidency Small Cause Courts Act, l882 was 5 maintainable. The Appellate Court accordingly decreed the suit. 5. In support of this petition Mr. Mogre, learned counsel strenuously contended that the suit was instituted by the first respondent through one of the constituted attorneys. The power of attorney is not properly executed. If the suit is instituted on the basis of defective power of attorney, the suit must fail. In support of this contention the learned counsel relied upon judgment of this Court, in J. G. Hegde vs-R.D. Shukla 2003 (4) ALL M.R. 822. He further submitted that on behalf of the first respondent evidence was led by Ms Swati Laxman Shinde, Legal Assistant, who was not authorised by the first respondent to depose on its behalf. 6. In so far as submission that the suit was instituted on the basis of defective power of attorney is concerned, the same is factually incorrect. After executing power of attorney, Shri B.H. Antia, Notary Bombay issued certificate on May 6, l976, certifying that he was present on April 29, l976 at the office of the first 6 respondent when the Power of Attorney was duly sealed in his presence. In case of J.G. Hegde (supra); this Court had issued notice to Shri D.J.Khatri, Notary and was called upon to produce notarial registers. In the present case at no point of time, the petitioner raised any contention as regards to defective power of attorney. Even otherwise, on the basis of certificate issued by Shri.Antia, Notary, Bombay, I am satisfied that the suit was instituted on the basis of valid power of attorney. The facts in the present case are materially different from the facts in the case of J.G. Hegde (supra). 7. In so far as other contention namely Ms Swati Shinde was not authorized by the first respondent is concerned, the same is raised without any foundation and also devoid of any substance. The petitioner did not even put suggestion to the said witness during the course of cross examination. 8. In my opinion, the Appellate Court rightly set aside the trial Court’s order. I do not find that the Appellate Court has committed any error of law apparent 7 on the face of the record and that the findings recorded by the Appellate Court are perverse requiring this Court to interfere under Article 227 of the Constitution of India. The petition being devoid of substance deserve to be dismissed. Hence following order. ORDER. I) The petition stands dismissed. ii) There is no order as to costs. (R.G. KETKAR, J)