: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.532 OF 2009 IN MISC. APPLN. NO.5 OF 2006 IN EXECUTION APPLN. NO.433 OF 2006 IN PAUPER PETITION NO.35 OF 1980 IN S.C. SUIT NO.955 OF 1982 Antonieta Verdes D Monte Harbour Building, 1st floor, 43-B, Chapel Road, Bandra (W) Mumbai  400 050. .. Appellant / (orig.Intervenor/ Obstructionist No.1 V/s. Yasmeen Fakir Mohammed Harbour Building, 1st floor, 43-B, Chapel Road, Bandra (W) Mumbai  400 050. .. Respondent ..... Mr. Hiralal Thakkar, Senior Counsel with Mr. D.A. Joseph i/by David & Associate for the appellant. Mr. M.C. Hegde for the respondent ..... CORAM : R.Y. GANOO, J. DATE : 11TH JUNE, 2009. ORAL JUDGMENT : 1. The respondent herein filed Miscellaneous Application No.5 of 2006 in Execution Application No. 433 of 2006 in S.C. Suit No.955 of 1982 in the City : 2 : Civil Court at Bombay. The said application came to be decided by the learned Judge of the City Civil Court on 13th January, 2009. By the said judgment, the learned Judge of the City Civil Court (hereinafter referred as the learned trial Judge ) accepted the obstruction on behalf of one party namely Mrs. Evergreen and rejected the obstruction on behalf of the appellant i.e. Mrs. Antonieta Verdes D Monte. As a result of this, the said order operated against the present appellant namely Mrs. Antonieta Verdes D Monte and hence she has filed this first appeal. Notice was issued to respondent and the first appeal was heard at the stage of admission extensively and following order is passed. 2. One lady by name Mrs. Phylis D penha instituted the suit in the City Civil Court being S.C. Suit No. 955 of 1982 against one person by name Anib D monte for eviction of the said Anib. The said suit pertains to the premises more particularly set out in the plaint of the said suit being premises on the first floor of the house situate at 43-B Chapel Road, Bandra, Mumbai. Said Phylis had also joined three other persons in the said suit who could be treated as : 3 : non-contesting defendants and who were latter on deleted. As the record shows, said Phylis transferred her rights in regard to the property namely house No. 43-B, Chapel Road, first floor, Bandra, Mumbai (hereinafter referred to as the said property ) in favour of Mrs. Yasmeen Fakir Mohammed during the pendency of the said suit and hence said Mr. Yasmeen came on record of the said suit as a plaintiff and Mrs. Phylis lost her interest in the said suit and record shows that her name had been deleted from the side of the plaintiff. With this development in the suit, Mrs. Yasmeen decided to prosecute the suit as against Anib D monte who according to Mrs. Yasmeen was a trespasser in regard to the suit premises which are set out in the plaint of suit No.955 of 1982. The learned Judge of the City Civil Court incharge of said Suit No.955 of 1982 gave opportunity to both the sides to place their respective contentions. By judgment and decree dated 30th April, 1997, decreed the Suit in favour of the plaintiff Yasmeen in terms of prayer clauses (b), (c) and (d). On account of this order, plaintiff Yasmeen became entitled to take possession of the premises viz. First floor of house situate at 43-B, Chapel Road, Bandra, Mumbai. The record shows : 4 : that the respondent herein filed Miscellaneous Application No.5 of 2006 to seek possession from said Anib of the suit premises and took the bailiff to the site. On 24th February, 2003, there was some resistant on the part of the present appellant and the bailiff returned. Same thing happened on 31st August, 2005. On 18th August, 2006, the bailiff again recorded the obstruction put in by the constituted attorney of Mrs. Evergreen as well as the present appellant. That is how signals were given that the decree passed by the Judge of the City Civil Court against Anib got objected to by two persons namely Mrs. Evergreen and the present appellant. 3. The respondent had not filed application under Order 21 Rule 97 of Civil Procedure Code. However, on the basis of developments which took place in the City Civil Court, Mrs. Evergreen and the present appellant were taken as intervenors in the proceedings of Miscellaneous Application No.5 of 2006 and ultimately they were styled as obstructionist No.1 i.e. Mrs. Evergreen and the present appellant as obstructionist No.2. It is seen that on the basis of what has transpired in the City Civil Court, a formal : 5 : application for joining Mrs. Evergreen and present applicant as obstructionists No.1 and 2 respectively and that amendment application was granted to complete the formalities because by that time the job of recording of evidence in the Miscellaneous Application No.5 of 2006 was over and the appellant herein, the respondent herein and Mrs. Evergreen through her power of attorney had conceded that provisions of that Miscellaneous Application No.5 of 2006 should be treated as a proceeding under Order 21 Rule 97 of Civil Procedure Code. 4. The hearing of this first appeal was taken up treating that the Miscellaneous Application No.5 of 2006 was ultimately decided by the learned trial Judge as an application under Order 21 Rule 97 of Civil Procedure Code. 5. The record clearly indicates that the present appellant as well Mrs. Evergreen the other obstructionist as well as the present respondent had all the chances to place their evidence and material before the Court in support of their respective contentions and to that extent, proer procedure was : 6 : followed. 6. At the outset, it will have to be mentioned that the decree passed in S.C.Suit No.955 of 1982 being the main suit become a subject mater of the appeal being Appeal No.697 of 1997 and this Court had dismissed the said appeal. Being aggrieved by the said order of dismissal, Special Leave Petition was filed by Anib and it was dismissed by the Supreme Court on 6th May, 2005. It will have to be noted that the decree passed in the main Suit No.955 of 1982 stands confirmed as of today and all findings recoded in the said suit have to be considered for the purposes of deciding the points raised in this appeal. 7. In so far as the premises which are said to be under the control of Mrs. Evergreen and the present appellant is concerned, it is required to be mentioned that the record shows that some rooms are under the exclusive control of Mrs. Evergreen and some rooms are under the control of present appellant and certain rooms such as living room, drawing room are said to be used jointly by Mrs. Evergreen and the present appellant. This is being stated on the basis of : 7 : record and there is no dispute about it. 8. Few other developments are required to be stated which came to be placed before this Court for the purposes of submitting respective contentions by the Counsel on both the sides. Anib, contesting defendant in the main suit had instituted a declaratory suit in the Court of Small Causes Court at Bombay being Suit No.408 of 1999 and in the said suit said Anib wanted that the Court of Small Causes should declare him as a tenant in respect of the entire first floor which according to him was in occupation. The Court is informed that the said suit is pending. In the said suit, consent terms dated 6th October, 2005 came to be filed between the present appellant and defendant No.9 Mulchand and Mulchand is said to have granted the tenancy rights to the present appellant in regard to the suit premises i.e. one which are concerned in this appeal though this appellant was not party to the said suit. These consent terms came to be filed in the Court of Small Causes Court and the learned Judge of the Court of Small Causes Court kept them on record and ordered that appropriate order shall be passed as and when the suit is to be disposed of. It is : 8 : admitted by the appellant that as of today no formal orders are passed in terms of the said consent terms thereby passing a decree in terms of the said consent terms. 9. It is seen that the appellant herein instituted Declaratory Suit No.552 of 2006 against the present respondent as well as 8 other persons including Mulchand to seek declaration that she is the tenant in respect of the same premises in regard to which Anib had instituted the suit. It is required to be mentioned that the present appellant instituted the declaratory suit in the Court of Small Causes though consent terms were filed in the Suit No.408 of 1999 between Mr. Mulchand and the appellant because according to the appellant said Mulchand was trying to disown the consent terms on account of instigation from other defendants. In substance, the said consent terms were not being honoured by the said Mulchand and that it become the ground for the appellant to have a decree from the Court of Small Causes. 10. On record, one find rent receipts purported to be issued by Mulchand dated 5th July, 2005 and 10th : 9 : January,2006 and according to the appellant these rent receipts came to be issued in view of the consent terms which came to be filed in the Declaratory Suit No.408 of 1999. It is required to be specifically mentioned that the present appellant was not a party to the Declaratory Suit No.408 of 1999 and despite that the consent terms came to be arrived at and tendered in the Court though no decree in terms of the consent terms came to be passed. 11. I have extensively heard learned Senior Counsel Mr. Thakkar on behalf of the appellant. Following points came to be raised by learned Senior Counsel Mr. Thakkar in support of the appeal. The learned Senior Counsel on behalf of the appellant took me through the provisions of Rule 104 of Order 21 of Civil Procedure Code and submitted that when the learned Judge of the City Civil Court granted Miscellaneous Application NO. 5 of 2006, he ought to have noted that at the time when he was deciding the said proceedings, declaratory suit filed by the appellant was pending. He, therefore, submitted that the learned trial Judge ought to have stayed the proceeding of Miscellaneous Application No.5 of 2006 till the decision of : 10 : declaratory suit filed by the appellant. He had submitted this by placing emphasis on the terminology appearing in the Rule 104 of the Order 21 that every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which said order is made. According to the learned Senior Counsel for the appellant the word subject to is of utmost importance and to that extent the learned trial Judge has not considered the proceeding and he has ignored the mandate of Rule 104. In so far as this aspect is concerned, it is required to be mentioned that an application was filed by the appellant in the Court of Small Causes in the suit filed by her for stay of the proceeding in the City Civil Court. That application was rejected and that is how the learned Judge of the City Civil Court proceeded to decide the matter. In my view the argument advanced by the learned Senior Counsel for the appellant that the learned Jude of the City Civil Court should have passed some order so as to see that his order is subject to the result of the declaratory suit filed by the appellant cannot be accepted. In my view, the interpretation of the terminology mentioned above : 11 : clearly goes to show that if an order is required to be made by a Judge under Rule 101, Order 103, he has to pass the order on merits of the said proceedings under Rule 101 or Rule 103 though some other proceedings are pending and while passing the order he need not say that the said order is subject to the other pending proceeding. That is to say if the appellant looses in the proceedings under Order 21 Rule 97 of Civil Procedure Code but succeeds in the declaratory suit filed by her, the appellant may be entitled for restoration of the premises on the ground that the competent Court had declared her as the tenant of the premises in question. In my view, there was nothing wrong on the part of the learned trial Judge in considering the record and passing the order on merits. 12. It was sought to be argued by the learned Counsel for the appellant that the appellant had paid to the D. Penha a sum of Rs.1350/- and for that receipt in the nature of a rent receipt came to be issued by said D.Penha which rent receipt is at Exh.35. I have perused the said rent receipt. Document at Exh.35 if read, it goes to indicate that the term  Rent has : 12 : been used. Learned Counsel Mr. Hegde appearing on behalf of the respondent pointed out that the Court should not read the document at Exh.35 in isolation and the Court should read the letters and the correspondence between said D.Penha and the appellant which is reflected in Exh.45, 46 and 47 and he pointed out that appellant made the payment on behalf of Anib, the husband of the appellant in accordance with the order passed by the Judge of the City Civil Court in the main suit at the rate of Rs.150/- per month and that is how the sum of Rs.1350/- was paid and a receipt for that is said to have been issued by Mrs. Phylis. I have perused the document at Exh.35 and the correspondence at Exh.45,46 and 47. The three letters at Exh.45,46 and 47 clearly go to show that the appellant has paid in terms of the order passed by the Court by way of mesne profit and as such the said payment received by Mrs. Phylis cannot be termed as a rent. In my view, the use of word rent appearing in Exh.35 has been done by said Mrs. Phylis without understanding the consequences of the use of the word  rent . In fact receipt at Exh.35 is a printed rent receipt. Mrs. Phylis must have used printed blank rent receipt from the printed receipts which must have : 13 : got printed for issuing to her tenants. In my view, even if the word  rent is used in the document at Exh.35, the Court will have to read the admitted correspondence between the parties and understand the circumstances under which the said payment was made and the receipt was issued. The said correspondence at Exh.45, 46 and 47 would go to show that the present appellant had herself addressed a letter to Mrs. Phylis stating that the amount is being paid as and by way of mesne profit pursuant to the orders of the Court. If this is the position, it is clear that the said payment was made not by way of a rent. It is also clear that said Mrs. Phylis never intended to confer tenancy rights on Anib or the appellant. It is also clear that receipt issued by Phylis was towards mesne profit and that too as per the order of the Court. It is clear that if the Court would not have passed any order directing the Anib to pay a sum of Rs.150/- per month, there was no question of Anib or the appellant making payment to Mrs. Phylis. It is in these circumstances, the argument advanced by learned Counsel for the appellant that by document at Exh.35 coupled with Exh.45,46 and 47 tenancy rights were granted cannot be accepted. The stand of the : 14 : appellant that tenancy rights were created in favour of the appellant cannot be accepted. 13. Learned Senior Counsel for the appellant thereafter advanced submission by making use of the consent terms dated 6th October, 2005 which have been filed in Declaratory Suit No.408 of 1999. Learned Senior Counsel for the appellant had taken pains to submit that since the consent terms have been signed by the appellant and defendant No.9, in the said declaratory suit it is clear that one of the landlords was interested in recognizing the appellant as a tenant in respect of the premises which are presently enjoyed by the appellant. According to learned Senior Counsel for the appellant, this aspect ought to have been considered by the learned trial Judge and the learned trial Judge has erred in rejecting the stand of the appellant to that extent. Learned Senior Counsel for the appellant had taken me through the conveyance dated 13th April, 1968 on the basis of which the property was sold in favour of the father of the said Mulchand and one more person and according to learned Senior Counsel for the appellant, the stand of the appellant that Mulchand had a right in respect of : 15 : the suit property is made out and that if consent terms are signed by one of the landlord, proper weightage ought to be given to those consent terms and that the stand of the appellant that the appellant was a tenant at least on the day when the consent terms came to be tendered in the Court i.e. prior to disposal of the obstruction proceeding is required to be accepted. Learned Senior Counsel for the appellant had submitted that the fact that Mulchand and the appellant entered into consent terms goes to show that there was an agreement between the Mulchand and the appellant so as to confer rights on the appellant and hence this aspect ought to have been considered in favour of the appellant. 14. Learned Counsel Mr. Hegde appearing on behalf of the respondent by taking me through the text of the judgment and in particular issue No.1 submitted that the learned Judge of the City Civil Court while deciding the main suit on the basis of pleadings before him, recorded finding that the property in question i.e. house situate at 43-B, Chapel Road, Bandra was jointly owned by the then plaintiff No.1 i.e. Mrs. Phylis and Dr. Victor Penha. According to : 16 : learned Counsel Mr. Hegde for the respondent that finding clearly goes to show that Mulchand had no right whatsoever in the property in question and he cannot be styled as owner. Learned Counsel Mr. Hegde submitted that the finding recorded by the learned Judge of the City Civil Court was confirmed right up to Supreme Court and, therefore, it is not now open for this Court to deviate from the said finding and hold that Mulchand had some right in regard to the said property including the premises covered under the present obstruction proceeding. 15. Learned Senior Counsel for the appellant in reply to the submissions advanced by learned Counsel Mr.Hegde had taken me through the affidavit at Exh.43 filed in Motion No.896 of 2005 in declaratory suit filed by Anib to point out that after the conveyance dated 13th April, 1968 between Phylis V. D monte i.e. husband of Phylis on one hand and Jaffarbhai Dhanji and Lalji father of Mulchand, the said persons acquired rights in respect of the property in question and therefore ultimately Mulchand had acquired rights and that is how he should be styled as a landlord in the declaratory suits filed by Anib and the present : 17 : appellant respectively. Learned Senior Counsel for the appellant had submitted that reading the conveyance dated 13th April, 1968 and the affidavit at Exh.43, it is clear that Mulchand had a right in respect of house No.43-B, Chapel Road, Bandra, Mumbai and Mulchand had authority to enter into consent terms with the present appellant. 16. I have considered the submissions advanced in so far as this aspect is concerned. I am inclined to accept the submission advanced by learned Counsel Mr. Hegde to observe that the appellant has not been able to make out the case that Mulchand had a right in respect of the property. It is required to be mentioned that the finding on issue No.1 was recorded by the learned Judge of the City Civil Court in the main suit after giving all the opportunities to the respective parties and the said finding clearly goes to show that Phylis and Dr. Victor Penha were treated as a joint owners of the property. It is pertinent to note that this finding has been recorded on 30th April, 1997 i.e. after the relevant affidavit at Ehx.43 and conveyance dated 13th April, 1968 was executed. Since the above finding has been confirmed up to Supreme : 18 : Court, now it will not be open for this Court to go into the question as to who would be the owner of the property in question. If one peruses the discussion with reference to the stand of Anib in the written statement, it is clear that the point as regards the conveyance dated 13th April,1968 was placed before the learned Judge who decided the main suit and thereafter the above finding has been recorded to hold that Phylis as well as Dr. Victor Penha were the joint owners in respect of the property. If the stand of Anib defendant in the main suit that Mulchand was the owner of the property was correct, certainly the Judge who decided the main suit would not have recorded the finding to hold that Phylis and Dr.Victor Penha were the only owners of the property. 17. It is required to be noted that after Phylis transferred her interest in the property to the present respondent, name of the Phylis came to be deleted and the present respondent prosecuted the said suit. Issue No.1 specifically makes a reference to plaintiff No.1 i.e. Phylis because at the time when the issue came to be framed Phylis was plaintiff No.1. In any case, if it was the stand of Anib that Mulchand : 19 : was the owner of the property, such stand has not been accepted by the Judge who decided the main suit and the said Judge restricted his finding with reference to ownership of Phylis as well as Dr. Victor Penha. Hence, argument advanced by learned Senior Counsel for the appellant that said Mulchand was the owner of the property at least partly cannot be accepted. 18. Even if it is accepted for a moment that Mulchand had ownership rights in respect of the house No.43-B, Chapel Road, Bandra covering the suit property, then the question is as regards the effect of consent terms between Mulchand and the present appellant is required to be decided. 19. As indicated earlier, the consent terms between Mulchand and the appellant came to be tendered in the Declaratory Suit filed by Anib in the Court of Small Causes being Suit No.408 of 1999. It is required to be noted that the present appellant was not a party to the said suit. The present appellant no doubt tendered the said consent terms in the said suit however no order was passed on the said consent terms to confer the tenancy rights in favour of the : 20 : appellant. Till today no decree has been passed on this consent terms to grant tenancy rights in favour of the appellant. The said consent terms are ordered to be kept on record and the learned Judge has ordered that appropriate order in terms of consent terms would be