/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3801 OF 1998 M/s.J.K. Shah & Company a Sole Prop. concern owned by Jaywant Keshavlal Shah, aged 50 yrs, residing at Paras Building 154, Jain Society, 3rd Floor, Sion(w), Mumbai:22. ...Petitioners V/s. 1.Fali Pirozsha Bomanji since deceased through legal representatives and legal heirs 1-A.Mrs. Piloo Fali Pirozshah C/4, Amarchand Mansion, 16, Madam Cama Road, Mumbai-1. 1-B Mrs. Kermeen Bose Ground Floor, Cliffet, 33, Pochkanwalla Road, Worli, Mumbai-30. 1-C Yazad Fali Bomanjee 1-D Farhad Fali Bomanjee C/4, Amarchand Mansion, 16, Madam Cama Road, Mumbai-1. 2. Miss Parveen Rustom Tata Palm Spring, Cuffe Parade, Colaba, Mumbai:400 005. ...Respondents Shri.M.H. Shah Senior Counsel with B.I. Dalvi for Petitioners. / 2 / Shri.Leroy Collaco with D.D. Juvekar i/b. Humranwala & Co. for Respondents. CORAM : V.M. KANADE, J. DATED : 11th JANUARY, 2008. JUDGMENT:- 1. Heard learned counsel for the Petitioners and learned counsel for the Respondents. 2. By this petition which is filed under Article 227 of the Constitution of India, Petitioners who are the original defendants No.3 and 4, are challenging the judgment and order passed by the Small Causes Court in Revision Application No.127 of 1997 in Misc. Notice No.1016 of 1994 in R.A.E. & R Suit No.1677/5866 of 1973 whereby revision application filed by the Petitioners challenging the order and judgment passed by Single Judge of Small Causes Court in Misc. Notice No.1016 of 1994, was dismissed and the order passed by the Single Judge of the Small Causes Court and said notice was confirmed. 3. Brief facts which are relevant for the purpose of deciding this writ petition are as under:- A suit was filed by one Mrs. Koomi Pirozsha on 12th October, / 3 / 1973 to recover possession of the suit premises. Suit was filed against four Defendants. After filing of the suit, original Plaintiff Mrs. Koomi Pirozsha expired on 12th February, 1974. An interlocutory notice was taken out for bringing heirs and legal representatives of the deceased on record. Process in the said interlocutory Notice No.3092 of 1974 was sought to be served upon the defendants through the Court Bailiff. The Court Bailiff made attempts to serve Defendants and he reported that the Defendant No.1 had expired. Thereafter, an application was made for serving Defendant No.1 by substituted service, which application was allowed. Petitioners filed their written statement in which it was categorically stated that Defendant No.1 had expired and that this fact was suppressed from the Court and therefore, on this ground this suit was liable to be dismissed. Defendants filed their written statements in the year 1977. Thereafter, Defendants and their counsel remained absent and therefore, the Trial Court passed an ex-parte decree on 5th August, 1994. 4. It is an admitted position that the Defendants did not file an application for setting aside ex-parte decree under Order 9 Rule 13 nor filed an appeal against said ex-parte decree which was passed by the Trial Court. Defendants, however, in the execution proceedings took out / 4 / an application vide Misc. Notice No.1016/1994 U/s.47 of C.P.C. In the said notice, it was prayed that ex-parte decree which was passed against the Defendants be declared as nullity since it was obtained by practicing fraud on the Court and that since the decree was passed against the person who was dead, decree itself was non-est, null and void. By order dated 10th March, 1997, Single Judge of the Small Causes Court was pleased to dismiss this notice. Against this order Petitioners initially preferred an appeal. However, this appeal was thereafter converted into a revision application. This revision application was also came to be dismissed by the Division Bench of the Small Causes Court by its judgment and order dated 9th October, 1997. 5. Being aggrieved by the aforesaid two orders, Petitioners have filed this writ petition under Article 227 of the Constitution of India. 6. Learned senior counsel for the Petitioners submitted that both the Courts below had committed an error of law which was apparent in the face of record by shifting burden of proof on the Petitioners herein to prove that Defendant No.1 was not alive when the suit was filed or thereafter during the pendency of the suit or prior to service of Notice No.3092/1974. / 5 / He submitted that this fact was suppressed by the Plaintiffs and thereafter another application was made for substituted service and the Court had allowed said application. He submitted that therefore, the fact that Defendant No.1 was no longer alive was suppressed from the Court and the order of substituted service was obtained. He submitted that, therefore, plaintiffs had committed fraud on the Court and therefore, decree which was passed was liable to be set aside since this fact clearly established that decree could not have been passed against the dead person. In support of his submission, he relied on two judgments of the Apex Court reported in AIR 1994 SC 853 in the case of S.P. Chengalvaraya Naidu(dead) by LRS. Vs. Jagannath(dead) by LRS., and 1996 Madras Law Journal page 38(SC) in Gawrishankar & Anr., V/s. Joshi A.S. Family Trust. He further submitted that Plaintiff No.3 having expired, an application was made for bringing heirs of Plaintiff No.3 on record and an order was passed in the said application and notice was made absolute. It is submitted that the Court ought not to have permitted prayer of the Applicant to substitute her in the place of Plaintiff No.3. He submitted that said application was filed by Miss Parveen Rustom Tata to bring herself as legal representative and heir of the deceased-original / 6 / Plaintiff No.3 who was her mother. He submitted that though the Court had made notice absolute, all the prayers of the Applicant had not been allowed. 7. Learned counsel for the Respondents, on the other hand, submitted that there is no reason to interfere with the order while exercising writ jurisdiction under Article 227 of the Constitution of India. 8. Petitioners have filed this writ petition under Article 227 of the Constitution of India. Power of the High Court while exercising writ jurisdiction under Article 227 of Constitution of India is very limited. Apex Court in the case of Surya Dev Rai V/s. Ram Chander Rai and others, reported in (2003)6 SCC page 675 has observed in para 12 as under:- “12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate court and step into reappreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.” / 7 / Keeping in view principles laid down by the Apex Court in the said judgment, it has to be seen whether any case is made out by the Petitioners for interfering with the orders passed by the Small Causes Court. 9. In the present case, it is an admitted position that the Petitioners herein had filed their written statement in the year 1977 and had specifically averred that the Defendant No.1 was dead at the time of filing of the suit. A specific plea was, therefore, raised by the Petitioners herein in the suit alleging that suit itself was not maintainable since the Defendant No.1 was not alive at the time of filing of the suit. Petitioners herein, however, did not contest the suit and as a result, ex-parte order was passed against them. It is an admitted position that application for setting aside ex-parte order was not filed by the Petitioners herein nor they challenged ex-parte order by filing an appeal before the Division Bench of the Small Causes Court. However, when the execution proceedings were initiated by the Plaintiffs, Misc. Notice No.1016/1994 was taken out by them. In this notice, it was alleged that Defendant No.1 had died before filing of the suit. Single Judge of the Small Causes Court while considering material which was on record has come to the conclusion that / 8 / burden of establishing fact that Defendant No.1 died was on the Petitioners herein since positive assertion was made by them that the Defendant No.1 was not alive when the suit was filed. Admittedly, no evidence was led by the Petitioners. No documents were produced on record to establish that the Defendant No.1 was not alive when the suit was filed. Reliance was placed by the Petitioners on the statement of the Bailiff who has stated that he tried to serve notice No.3092 of 1974. He was informed by wife of one Mr. S.K. Shah that Defendant No.1 was not alive. Both the Courts below have disbelieved this statement of the Bailiff on the ground that said statement was made on account of information given by the wife of Mr.S.K. Shah and, therefore, it was not reliable. Both the Courts below have further noted that subsequently another notice was issued against the Defendants. Bailiff was informed that Defendant No.1 had left the premises and had gone to England in 1978. Taking into consideration these two reports, Court came to the conclusion that it was not established by the Defendants that the Defendant No.1 was dead when the suit was filed. The Court also took into consideration the fact that the Defendant No.1 had paid rent through Defendant No.2 and 3 to the Petitioners herein. Both the Courts below after having perused / 9 / material on record have recorded its findings. Submissions made by the learned counsel for the Petitioners, therefore, cannot be accepted. 10. So far as second ground is concerned, submissions on this ground also have been negatived by both the Courts below. I do not see any reason to interfere with the findings recorded by the Courts below. Therefore, there is no substance in the submissions made by the learned counsel for the Petitioner. Petition is accordingly dismissed. Rule is discharged. There shall be no order as to costs. . Writ Petition is disposed of accordingly. V.M. KANADE, J.