:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.203 OF 1995 1. Giridharilal Dodia .. 2. Vaikunthbhai G.Dodia .. Both landlords of House No.28, 3rd Floor, 1st Sutar Galli, Bombay 400 004 .. Petitioners. Vs. 1. Mrs.Jashoda Pravinchandra Shah 49/A Pushpa Park, Block No.12, Ground Floor, S.V.Road, Borivali West, Bombay 400 092. .. 2. Ramji Ramnarayan Chaurasia resident of Room No.2, House No.28, 1st Floor, 1st Sutar Galli, Bombay 400 004 .. Respondents. WITH WRIT PETITION NO.560 OF 1995 Mrs.Jashoda Pravinchandra Shah, residing at 49/A Pushpa Park, Block No.12, Ground Floor, S.V.Road, Borivali West, Bombay 400 092. .. Petitioner Vs. 1. Giridharilal Dodia .. 2. Vaikunthbhai G.Dodia Both Adults, Inhabitants of Bombay, Landlords of House No.28, 3rd Floor, 1st Sutar Galli, Bombay 400 004 .. 3. Ramji Ramnarayan Chaurasia resident of Room No.2, House No.28, 1st Floor, :2: :2: :2: 1st Sutar Galli, Bombay 400 004 .. Respondents. Mr.G.H.Keluskar for the petitioners in WP No.203/95 and for respondent no.1 in WP No.560/95. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 27TH MARCH, 2008. DATED : 27TH MARCH, 2008. DATED : 27TH MARCH, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . Heard Mr.Keluskar, learned counsel for the petitioners in WP No.203/95 and for respondent no.1 in WP No.560/95 (for short "the first" and "the second petition"). None appears for the respondents in the first petition and for the petitioners in the second petition. Since both these writ petitions arise from the orders passed in the Misc. Notices in the very same suit and that the parties are common, they are being disposed of by common judgment. 2. These two writ petitions arise from the order passed by the court below in two Misc.Notice Nos.16 of 1992 and 55 of 1992 taken out by respondent - defendant nos.1 and 2 in the first writ petition respectively for setting aside an exparte decree dated 29.10.1991 passed by the Small Causes Court at Bombay in R.A.E.& R Suit No.1093 of 1989 filed by the petitioners in the first petition. Hereinafter the parties will be addressed by their original status in the suit. The Trial Court had disposed of both misc. :3: :3: :3: notices vide common order dated 3.8.1992 against which defendant nos.1 and 2 had filed two independent appeals bearing Nos.305 of 1992 and 307 of 1992. The appeal filed by defendant no.1 came to be dismissed and the order passed by the trial Court on 19.10.1994 was confirmed. Insofar as appeal no.307 of 1992, filed by defendant no.2 is concerned, the appellate court allowed the same and made misc. notice No.55 of 1992 absolute setting aside the exparte decree dated 29.10.1991. Feeling aggrieved by the order passed by the appellate court in appeal No.305/92, defendant no.1 filed writ petition No.560 of 1995 while the plaintiff challenged the order of the appellate court dated 19.10.1994 passed in appeal No.307 of 1992 by way of writ petition No.203 of 1995. 3. Before I proceed further it is necessary to state that defendant no.2 had taken out one more Misc. notice No.5295/91 for restoration of possession of the suit premises, which is a small room admeasuring 10’ X 10’. That miscellaneous notice was also dismissed by the very same order dated 3.8.1992 by which Misc. Notice Nos.16/92 and 55/92 were dismissed. Defendant No.2, had filed appeal No.306/1992 challenging the said order. The appellate court vide judgment and order dated :4: :4: :4: 19.10.1994 dismissed the appeal filed by defendant no.2. Against that order defendant no.2 had filed writ petition No.648 of 1995 which came to be disposed of vide order dated 20.7.1996. Insofar as writ petition No.560/95 is concerned, the petitioner-defendant no.1 has remained absent consistently on earlier occasions. In the circumstances I am constrained to dispose of these two writ petitions in the absence of defendant nos.1 and 2 i.e. respondents in writ petition No.203/95 and the petitioners in writ petition No.560/95. 4. The plaintiffs are the landlords of the suit premises, namely room No.9. They filed the suit for eviction on the ground of sub-letting. Defendant no.1 was the tenant of the plaintiffs. Defendant no.2 was/is in possession of room No.7 as a tenant of the plaintiffs. It appears that defendant no.1 had shifted to new accomodation at Borivali on 13.4.1989 and at that time had handed over possession of the suit premises to defendant No.2 and since then defendant No.2 was in possession till the plaintiffs obtained the possession of the suit premises in the execution of the exparte decree dated 29.10.1991. 5. The defendants had taken out independent Misc. notice Nos.15/92 and 55/92 for setting aside :5: :5: :5: the exparte decree. The Trial Court vide its common judgment dismissed the Misc. notices holding that defendant nos.1 and 2 have failed to prove that they were prevented by just and reasonable cause from appearing before the court when the court proceeded to hear the matter exparte. The court also held that the defendants are not entitled for restoration of possession of the suit premises. Against this order two appeals were filed by defendant no.1 and defendant no.2 bearing Nos.305 and 307/92 respectively. In the appeal filed by defendant no.2, the appellate court allowed his appeal bearing No.307/92 and dismissed the appeal filed by defendant no.1 bearing No.305/92 vide judgment and order dated 19.10.1994. The operative portion of the judgment read thus: "Order in Appeal No.307 of 1992 . Appeal No.307 of 1992 is allowed. . The order passed by the Trial Court in Misc. Notice No.55 of 1992 is set aside and in its place we substitute the following order: . On Mr.Chowasia, the defendant No.2 depositing Rs.1,000/- as costs within 7 days from today, notice No.55 of 1993 made absolute and ex-parte decree passed by the trial Court attends set aside, as against Mr.Chowasia - Defendant No.2 only. . Suit to be shown on the board of the Trial Court (C.R.No.25) on 21.11.1994 at 2.30 p.m. . If the appellant fails to deposit the amount as ordered, appeal stands dismissed. . On compliance of the order of deposit, hearing of R.A.N & M.Suit No.1093 of 1982 is expedited. :6: :6: :6: Order in Appeal No.306 of 1992 . Appeal No.306 of 1992 stands dismissed. . No order as to costs." 6. Mr.Keluskar, learned counsel for the petitioners submitted that looking to the conduct of the defendants right from beginning it is clear that they were not interested in prosecuting this proceedings seriously and further they lost interest in these proceedings after having lost possession in 1991. He submitted that defendant no.2 was already in possession of the adjacent room and admittedly he had no legal right to take possession of the suit premises after defendant no.1 had left it. Insofar as defendant No.1 is concerned, he submitted, she never bothered to appear in these proceedings and she seems to have lost interest in prosecuting her writ petition and that appears to be the reason why nobody is appearing on her behalf in writ petition No.560/95. Apart from that he invited my attention to the record to show that the defendants consistently remained absent before the Trial Court from 3.8.1989 till 4.7.1991 which forced the learned Judge to proceed with the hearing of the suit exparte. After disposal of the suit and till the exparte decree was executed they did not take any :7: :7: :7: step seeking restoration of the suit by setting aside the exparte decree. The defendants have not bothered to add the person who has been inducted in the suit room by the plaintiff during pendency of these proceedings as defendant till this date, when admittedly third person is in possession of the suit premises since 1991. The cause shown for the delay by defendant No.1 has rightly been held not sufficient, by the Trial Court while dismissing the miscellaneous notice filed by her so also by defendant no.2, who had no right whatsoever in the suit premises. 7. Perusal of the impugned judgments and other material placed before the court in both the writ petitions show that defendant no.2 claims right in the suit premises through defendant no.1. Defendant no.1 while shifting had handed over possession of the suit premises to defendant no.2. Defendant no.1 had no right and any valid reason to handover possession of the suit premises to defendant no.2. Similarly, defendant no.2 had no right to take possession and to remain in possession either as sub-tenant or otherwise, as rightly held by the Trial Court in the judgment. It appears that not only defendant no.1 but also defendant no.2 consistently remained absent on the date/s fixed by the Trial Court for hearing of :8: :8: :8: the suit. Keeping this conduct of the defendants in view the Trial Court seems to have passed the exparte decree. After passing of the decree there is no dispute that the plaintiff in 1991 had obtained possession of the suit premises in exeuction. In view thereof defendant no.2 had filed independent writ petition challenging the orders passed by the courts below in the proceedings for seeking restoration of the possession of the suit premises. That writ petition, admittedly, came to be dismissed in 1996. Defendant no.2 did not carry the matter further. It is in this backdrop of the facts, I find absolutely no merits in writ petition No.560 of 1995 filed by defendant no.1 and it deserves to be dismissed and so far as the first writ petition No.203 of 1995 is concerned, it deserves to be allowed. In the result the order dated 19.10.1994 passed by the Trial Court in appeal No.307 of 1992 which is the subject matter in the first writ petition, is set aside. Rule in the first writ petition is, accordingly, made absolute and the second writ petition is dismissed. No costs. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)