KBP review175-07.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.175 OF 2007 IN WRIT PETITION NO.3680 OF 1993 Keshav Babanna Naik ..Petitioner Vs. Nainaram Pramaji Chaudhari and ors. ..Respondents ......... Mr.G.S.Godbole i/b.Mr.Nitin Mulye, for petitioner. Mr.R.S.Apte, Senior Counsel i/b.Ms.Anjali Helekar, for respondent nos.1 to 5. ......... CORAM : A.S.OKA, J.. DATE : 9 th SEPTEMBER, 2009. P.C. : 1] Heard Mr.Godbole, learned counsel for the petitioner and learned Senior Counsel Mr.Apte for respondent nos.1 to 5. 2] The review petitioner is the second defendant in the suit filed by the first to fifth respondents. The sixth respondent is the original first defendant. The suit was filed on various grounds under the Bombay Rent Act. The suit was decreed by the trial Court. The decree was passed by the trial Court on the ground of arrears of rent, unauthorised sub letting and non-user. An appeal was preferred by the present review-petitioner. The District Court interfered and the decree was set aside. Being aggrieved by the judgment of the appellate court, the first to fifth respondents herein filed a writ petition. The writ petition was allowed by this Court. The judgment and decree of the appellate Court was set aside by this Court and the decree of eviction on KBP review175-07.sxw 2 the ground of unauthorised sub-letting was restored. The review is sought of this judgment and order. The review has been sought on two grounds. The first ground is that the writ petition was dismissed as against the first respondent (first defendant-tenant) and without the tenant being a party, the decree for eviction could not have been passed under the Bombay Rent Act. The second ground is that though the petitioner was held to be unauthorised sub-tenant he was found to be in possession of the suit premises prior to the 1 st February, 1973, and therefore, in view of the amendment to Sub-section 2 of Section 15 of the Bombay Rent Act, the petitioner was protected and with effect from 1 st February, 1973 he shall be deemed to have become a tenant. The contention is that these two vital aspects have been ignored by this court, and therefore, there is an error apparent on the face of the record. 3] The learned Senior Counsel for respondents no.1 to 5 invited my attention to the order dated 19 th April, 2007 passed by this Court in Civil Application No.3680 of 1993. He pointed out that by the said order, this Court permitted the review petitioner who was the second respondent to the writ petition to be brought on record as the legal representatives of the first respondent to the writ petition who was a tenant. He pointed out that the said order was passed after hearing the learned counsel for the review petitioner. Thus, the petitioner who was the second respondent was brought on record as a legal representative of sixth respondent herein (first petitioner- tenant in the writ petition). 4] I have carefully considered the submissions. The judgment and order dated 6 th November, 2006 which is sought to be reviewed shows that the writ petition was taken up for final disposal along with Civil Application No.1545 of 2003 which was an application taken out for restoring the writ petition as against the first respondent tenant. The writ petition was allowed and even the said civil application was allowed. Thus, the writ petition was restored as KBP review175-07.sxw 3 against the first respondent-tenant. This court by order dated 19 th April, 1993 in Civil Application No.3680 of 1993 permitted the petitioner to brought on record as the legal representative of the first respondent in the writ petition. The petitioner was heard at the time of final hearing of the writ petition. The petitioner is not seeking the review of the order dated 19 th April, 2007. The learned counsel appearing for the review petitioner submitted that the petitioner was not aware of the said order dated 19 th April, 2007. However, it must be noted that in the order dated 19 th April, 2007 the appearance of the advocate who appeared for the petitioner at the time of final hearing of writ petition has been noted. The record shows that the present petitioner (respondent no.2 in the writ petition) was brought on record as the legal representative of deceased respondent no.6 herein(respondent no.1 in writ petition). Thus, the present petitioner was treated as the legal representative of first respondent in writ petition and the present petitioner was heard at the time of final hearing of the writ petition. He was represented by a counsel who appeared when order dated 19 th April, 2007 was passed. Therefore, as the order dated 19 th April, 2007 is not challenged, there is no merit in the submission that the original tenant was not heard in the writ petition. 5] As far as the second contention is concerned, it must be noted here that the said contention, as is reflected from the judgment and order dated 6 th November, 2006, was not raised before this court when the writ petition was heard. Thus, there is no error apparent on the face of record and even otherwise there is no ground for review. 6] Therefore, the Review Petition is rejected. The learned counsel appearing for the petitioner prays that the petitioner should not be dispossessed for a limited period. The said prayer is opposed by the learned Senior Counsel for the first to fifth respondents. Considering the facts of the KBP review175-07.sxw 4 case, the decree for possession shall not be executed for a period of twelve weeks from today, subject to the condition that the petitioner will not create any third party interests and will not part with the possession of the suit premises. ( A.S.OKA, J. )