1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 32 OF 2009 M/s.Deve Prints Limited ..Petitioner. vs. Mrs.Ramona Jaideep Garware ..Respondent. ===== Mr.M.V.Rawool i/by P.B.Shah, Advocate for the Petitioner. Mr.Rajesh Patil, Advocate for the Respondent. ===== CORAM: A.R.JOSHI,J. DATED : 29TH SEPTEMBER, 2009 P.C.:- 1. Rule, made returnable forthwith. 2. Heard rival submissions for long. 3. The present Civil Revision Application is filed by original defendants challenging the Order dated 18th December 2008, passed by the Division Bench of Small Causes Court at Mumbai in revision application No.8 of 2007. It would be profitable to 2 mention certain preliminaries so far as the dispute between parties. 4. Initially, RAD Suit No.1771 of 1996 was filed by the original plaintiff – Jaideep Garware against the present petitioner i.e.defendant - M/s.Deve Paints Limited for declaring him as a tenant with respect to certain flat admittedly belonging to the defendant-Company. During the pendency of said suit, the original plaintiff-Jaideep Garware died. In the meantime, there was a dispute regarding other properties belonging to the said plaintiff. Litigation took place between the family members and also between his wife and mother. Mother of original plaintiff preferred an application before the Small Causes Court in then pending RAD Suit No. 1771 of 1996 for impleading her as plaintiff as the application was also preferred by the wife of original plaintiff. The order was passed by the Small Causes Court directing the mother to be impleaded as plaintiff in place of deceased original plaintiff Jaideep Garware and his wife was impleaded as defendant no.2. This order was challenged by the wife before the Hon’ble High Court in writ petition no.7529 of 2000. Prior to such writ petition, there was a suit filed before this 3 Court on its Original Side bearing Suit No.2535 of 1999 in which the consent terms were filed on 22nd March 2001 and said suit was compromised. Admittedly, in the said suit, present original plaintiff-defendant no.1 was not a party. After this settlement of the original side suit, within a week’s time consent terms were filed in the writ petition no.7529 of 2000. In the said writ petition, admittedly, the present petitioner-defendant no.1 was also the party. In the said writ petition, a sort of understanding was arrived at between the mother and wife of original plaintiff – Jaideep Garware. As per the said minutes of order recorded in the writ petition no. 7529 of 2000, as per clause no.2 possession of a tenanted premises was handed over to the wife by the mother of Jaideep Garware. However, while recording the order on such compromise, this court specifically passed the following order on 3rd April 2001 in the said writ petition : “ Minutes of the order signed on behalf of the petitioner and respondent No.2 signed by their counsel taken on record and marked “X” for identification. The interest of respondent No.1 in so far as the present subject matter is concerned would not be affected. In the light of that Rule made absolute in terms of the minutes of the order.....” 5. As such, it is crystal clear that though by internal arrangement 4 between the wife and the mother, the subject matter of the suit before the same Small Causes Court was given in possession of the wife, it was subject to the right of the present petitioner- defendant no.1. In the Small Causes Court suit, thereafter, on 20th November 2002, during the pendency of said RAD Suit No. 1771 of 1996, the order came to be passed by then presiding Judge of the Small Causes Court on the submission on behalf of the plaintiff, who is the wife of original plaintiff -Jaideep Garware, so as to put an end to the entire suit. For the sake of ready reference the said order is reproduced hereunder : “The plaintiff present Advocate Mughate & contended that the litigation settled in the High Court Order produced. He first contended that there in no steps is existence. Hence this suit stand disposed off with no order as to costs.” 6. The said order was passed on 20th November 2002, the date is, of much significance as it was challenged belatedly after about two years and nine months. The review application bearing No. 534 of 2005 was preferred before the Small Causes Court. Surprisingly, the said review application was not taken before the same Judge who had earlier passed an impugned order dated 20th November 2002, but it was taken before the another Judge, who 5 passed detailed order and rejected the request of the wife on 31st October 2006 mentioning that there was no any reason to review the earlier order passed by the learned Judge of Small Causes Court dated 20th November 2002 by putting an end to the entire proceeding. Admittedly, there was no any delay condonation application preferred on behalf of the plaintiff-wife. On this aspect, it is tried to argue by the learned advocate on her behalf, before this court, that in the said misc.application No. 534 of 2005, there is mention regarding a prayer for condonation of delay, if any. 7. Apart from the prayers in the said application, there was a no separate application for condonation of delay, though the delay was apparently for more than 2 years and 8 months. It may also be mentioned at this stage that in the meantime, during pendency of the RAD Suit no. 1771 of 1996, certain proceeding has been taken by the original defendant-present petitioner-Company against the plaintiff under the provisions of Section 630 of the Companies Act. Apparently, such proceedings were taken during the lifetime of the original plaintiff-Jaideep Garware. However, after his death, process was issued against the wife, who was 6 substituted in place of deceased. Said order of issuance of process was challenged before this Court in its appellate jurisdiction and allegedly said matter is pending separately. 8. Apparently, in the year 2005, when the direction for issuance of process was given by Metropolitan Magistrate’s Court and noticing that original defendant Company is bent upon to evict the plaintiff, she had preferred the application for review, much belated after two years and eight months or so. 9. After dismissal of the said application No.534 of 2005 for review, a revision bearing no. 8 of 2007, was preferred before the Division Bench of the Small Causes Court and impugned order came to be passed in the said Civil Revision Application on 18th December 2008 and which is challenged in the present Civil Revision Application before this court. 10.It is submitted on behalf of the plaintiff-wife i.e. present respondent that she had not instructed the advocate Mr.Mughate to make such statement by which the RAD Suit No. 1771 of 1996 was put to an end by the Small Causes Court. She further pleaded ignorance of law, which in the opinion of this Court is not the defence which can be available to her. Otherwise also there was 7 nothing to interfere with the order of putting to an end to the suit vide order dated 20th November 2002 when the plaintiff-wife was herself present before Court along with advocate Mr.Munghte. This fact has not been controverted by the plaintiff-wife. Moreover, on asking by this Court as to whether revision application could lie before the Division Bench of the Small Causes Court on the order of review petition, shelter of Section 34 (4) of Maharashtra Rent Control Act 1999 was taken and it is submitted that when no appeal lies under Section 34(4) from a decree or order made in any suit or proceeding, a revision would be maintainable, before the Division Bench the Small Causes Court. 11. All the same in view of the dismissal of the suit, on account of statement made by the advocate in the presence of plaintiff, it would amount to withdrawal of the suit and then putting an end to it. As such, in these circumstances, there could not have any revision before the Division Bench of the same Court. 12.In view of the above, and considering the scope of this Court in revisional jurisdiction to interfere with the orders passed by the Division Bench of the Small Causes Court, it must be said that 8 said order is required to be set aside and the order passed on 31st October 2006 in review is required to be maintained, putting an end to the RAD Suit No.1771 /1996. In this view of the matter, present Civil Revision Application is allowed and rule made absolute accordingly, with no order as to costs. (A.R.JOSHI,J.)