1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 498 OF 2007 Mrs. Mehru Navroj Italia and Anr. ....Petitioners Versus Ms. Beatrice Maureen Clifford & Ors. ....Respondents Mr. V. A. Thorat, Sr. Counsel with Mr. R. A. Thorat i/b. M/s. Utangale & Co. for the Petitioners. Mr. Hiralal Thacker, Sr. Counsel with Mr. D. A. Joseph i/b. M/s. David and Associates for Respondents. CORAM : R. V. MORE, J. DATE : 22nd JUNE, 2009. P.C. : Heard, Mr. Thorat and Mr. Thacker, learned Senior Counsel for the Petitioners and the Respondents, respectively. 2. Rule. By consent, Rule is made returnable forthwith. 3. It is the case of the Applicants that one Homi Italia was tenant in respect of suit premises being entire Ground Floor, one Garage, alongwith garden appurtenant to it, situated at Peace Haven, 38, Perry Road, Bandra (West), Mumbai- 400 050. The landlady-Isabel Clifford filed suit for eviction against the said Homi Italia under section 13(g) of the Bombay Rent Act for reasonable and bonafide requirement. The suit filed by the landlady came to be dismissed by the Trial Court. The tenant-Homi Italia also filed suit, being Suit No.4266 of 1987 for declaration that he is a tenant in respect of the premises mentioned 2 above. In the year 1993, the original tenant-Homi Italia died and therefore the suit was dismissed, as abetted. The Applicants claimed tenancy under section 5 (11) (c) of the Bombay Rent Act and therefore, filed an application for setting aside abetment, which came to be dismissed. 4. The Applicants thereafter, filed a fresh suit being R.A.D. Suit No. 254 of 2005 for declaration that they are the tenants in respect of the suit premises. In this suit they took out an application at Exhibit “6” for temporary injunction restraining the Respondents from dispossessing them from the suit premises. This application was allowed and subsequently the R.A.D. Suit No.254 of 2005 was also decreed. 5. The Respondent had already filed Appeal No.242 of 2005 challenging the order below Exhibit “6” granting temporary injunction in favour of the Applicants. They further filed Appeal No.172 of 2006 challenging the final decree in R.A.D.254 of 2005 before the Appellate Bench of the Small Causes Court. Both the above said Appeals came to be allowed by the impugned judgment and decree and therefore, the present Revision. 6. The Lower Appellate Court relying upon the provisions of Order 22 Rule 9 and section 11 of the Code of Civil Procedure held that the Applicants’ suit was not maintainable. The R.A.D. Suit No.4266 of 1987 filed by the predecessor in title of the Applicants was dismissed as abetted on 7th January, 1998. The Application for setting aside this abetment was also dismissed. In that view of the matter, a fresh suit i.e. R.A.D.Suit No.254 of 2005 by the Applicants for the same relief, is correctly held not maintainable. I do not find any error in the finding of the Lower Court and therefore, it cannot be interfered in exercise of my jurisdiction under section 115 of the Code of Civil Procedure, 1908. The Civil Revision Application, is accordingly dismissed. 3 7. At this stage, Mr. Thorat, learned Senior Counsel appearing for the Petitioner, seeks eight weeks’ time to approach the Apex Court. In the interest of justice, time as prayed for is granted. The impugned decree of eviction shall not be executed for the period of eight weeks from today, subject to undertaking that the Petitioners will not part with the possession or create third party interest in the suit property. Sd/- (R. V. MORE, J.)