1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION REVIEW PETITION NO. 52 OF 2009 IN WRIT PETITION NO.5070 OF 2008 1 Ahtesham A. Sayed, aged 81 years, Occ: Advocate, (ceased practice). 2 Smt.Husnara A. Sayed, aged 65 years, occ: Housewife, 1st floor, American View, Oomer Park, 95-G, Bhulabhai Desai Road, Mumbai-400 026 Petitioners vs. 1 Mrs.Kanta Sethi age 82 years, Occ: Business, Flat No.5, 2nd floor American View, Oomer Park, 95-G, Bhulabhai Desai Road, Mumbai-400026 and Office at 159, Colaba Road, Near Colaba Post Office, Mumbai 400 005. 2 Capt.Arun Sethi, J-82, Maker Towers, Cuffe Parande, Mumbai-5, Age 65 years, Occ: Unemployed. 3 Ms.Shabnam Kadri (nee Shabnam Sayed) aged 49 years, Occ: Landlady & Business 4 Amjad A. Sayed, aged 48 years, Occ: Service, 5 Ayjaz A. Sayed, aged 45 years, Occ: Business, Respondent No. 3 to 5 having their permanent address at 1st floor,l American View, Oomer Park, 95-G, Bhulabhai Desai Road, Mumbai 400 026. Respondents 2 Shri H. M. Advani for the applicant. Mr.Kirit Paleja, for respondents 3 to 5. Mr.Arun Sethi, respondent no.2 present in person. CORAM: ANOOP V. MOHTA, J. DATE : 8th July, 2009 JUDGMENT: 1 The original petitioners moved this review petition to review/recall the order dated 2.12.2008 and submitted to allow Writ Petition No.5070/2008. 2 Heard the parties including respondent no.2 in person, who has filed written notes of arguments also. 3 The petitioners and respondents 3 to 5 are the landlords (the landlords). Respondent no.1 is the recognised tenant of the premises. Respondent no.2 is son of respondent no.1, is residing in other premises at Cuffe Parade, had taken out a chamber summons No.724/2007 in S.C. Suit No.4492/2002. The said Suit has been filed by the petitioners and respondents 3 to 5 against respondent no.1- tenant under Section 6 of the Specific Relief Act in respect of forcible dispossession of the suit premises comprising of attic and the part of the terrace situate on 3rd floor of the building known as “American View”, Bhulabhai Desai Road, Mumbai. By an order dated 12.02.2008 the said chamber summons was dismissed and thereby respondent no.2 was not permitted to join as a party in the suit. The petitioners as well as respondent no.1/tenant had filed the writ 3 petitions and challenged the some observations which are reproduced in para 8 of this order. Writ Petition No.4164/2008 was preferred by respondent no. 1/original tenant and Writ Petition No.5070/2008 by the petitioners and respondents 3 to 5. 4 By the impugned order dated 02.12.2008 this Court has dismissed both the petitions by maintaining the observations and further by observing, “fact remains, therefore, that he has interest in the property”. Respondent no.1/tenant and respondents 3 to 5 are supporting the present petitioners. 5 After the death of the original tenant, the husband of respondent no.1 and the father of respondent no.2, the landlords have recognised respondent no.1, wife of the deceased as the tenant since long. Respondent no.2 was never recognised or treated as the tenant in view of above. 6 Therefore, respondent no.2 has filed RAD Suit No.2502/2006 in the Small Causes Court at Bombay and claiming declaration that he has also inherited right/interest in the tenanted premises. A notice of motion was taken out against the landlords, mother and two sisters. By order dated 10.10.2007/11.10.2007 the said motion was dismissed and status-quo already granted on 19.12.2006 stood vacated by observing as follows: “52. If it is so, then prima facie from the documents, it seems that neither the plaintiffs claim come within the purview of the definition of the tenant under Section 7 sub clause 15(d) of the Maharashtra Rent Control Act, 1999 to grant him declaration that 4 he became deemed tenant or statutory tenant as alleged. It be noted that neither late Shri Suraj Bqalram Sethi remained the tenant in the eye of law at the time of his death nor the rent receipt sands in his name. Moreover, Kanta Sethi is alive, therefore, the provisions of Section 7 sub clause 15(d) does not come into play.” 7 An appeal No.684/2007 is also dismissed by order dated 14.12.2007. The Writ Petition No.1186/2008 was also dismissed on 7.3.2008. However, the High Court protected the apprehension so expressed by observing that “Defendant no.6 has no intention to induct third party in the suit premises or transfer them”. It was granted as respondent no.2 prayed for leave to Appeal to the Supreme Court. It appears from record that there is no further challenge made. 8 These facts are well within the knowledge of the parties. The chamber summons as taken out by respondent no.2 to get impleaded as party defendant in the Suit filed by the landlords being Suit 4492/2002 was dismissed by specifically observing that “the Applicant is not necessary party in this Suit. He is even not a proper party in this Suit.”. It is also observed that respondent no.2 has instituted separate and independent Suit in Small Causes Court for enforcing his rights and, therefore, he can obtain appropriate order for protection of all rights from that Court and thereby rejected the chamber summons. However, observed as under: “Chamber summons stands rejected; however the parties are directed that in the event of their entering into compromise, they shall implead the Applicant in this suit first as party Defendant; thereafter only they will submit consent terms, compromise pursis etc. for recording compromise. Chamber Summons stands disposed of accordingly.” 9 Admittedly, the suit as filed by respondent no.2 for claiming/declaration of 5 his rights is pending. The Court, as recorded above, maintained that he has no right or interest in the premises. Therefore, not granted any protection/injunction as prayed. The observation and the findings so arrived at by the Courts in the landlords’s Suit, at this stage, has attained finality, whereby it is specifically observed that respondent no.2 has no right or interest in the property. That finding therefore goes to the root of the matter. Those orders and observation made therein, if taken note of, there is no question of observations as made while rejecting the chamber summons by order dated 12.02.2008, it is apparent error on the face of the record and is contrary to the basic findings given by the courts as recorded above. While deciding the chamber summons, the learned Judge has taken note of Suit No.2502/2006 and the fact that the same is pending. The injunction so sought on the foundation of alleged tenancy right was also dismissed. Therefore, while rejecting the chamber summons, the observation so mentioned is incorrect and contrary to the orders already passed in Suit No. 4492/2002. 10 There is error apparent on the face of the record. Those orders dated 10.10.2007 in Suit No.2502/2006, order dated 14.12.2007 in Appeal No.l684/2007 and order dated 14.12.2007 in writ petition No.1186/2008 as referred above were not part of the record, though reference was made in the petition as well as in the order dated 12.2.2008. Those were not pointed out while arguing the matter and even when the impugned order was passed. Both the writ petitions were dismissed in limine being against interlocutory order and as it was only against the observations referred above. But now after going 6 through the orders, I am of the view that those orders go to the root of the matter. Those orders were well within the knowledge of the parties. In my view, there is an error on the face of record which need to be rectified in the interest of justice, and to avoid further complication in the matter pending between the parties. Therefore, at this stage, as respondent no.2 is not permitted to add as a party and as those orders remained final, therefore, his presence is not necessary and not required in any proceedings between the landlords and respondent no.1/tenant. The Suit filed by respondent no.2, who is claiming tenancy rights unless decided it is difficult to accept that he has any interest or right in the property at present. 11 It is further clarified that the observation in the impugned order dated 2.12.2008 to the effect that “fact remains, therefore, that he has interest in the property” is in reference to his Suit, but as observed above and unless it is decided respondent no.2 cannot claim any right or interest on the basis of this sentence in all other or further proceedings. He has interest in the property does not mean that the right is decided in his favour. It is subject to final decision of his suit. Therefore, in view of the orders already passed against respondent no.2, by holding that he has no prima facie case or interest, to claim tenancy rights as her mother/respondent no.1 is alive and the landlords have treated and accepted her as a tenant as contemplated under the law after the death of her husband/original tenant. 12 The submission made by respondent no.2, based upon the averments made in various proceedings and order passed subsequently to the impugned order and 7 the averments with regard to the alleged merits of his case cannot be the reason to overlook the orders and the reasoning given against him by the Courts, firstly, by not granting him any injunction and; secondly, by rejecting his chamber summons as noted above. 13 It is also noted that Suit No.4492/2002 filed by the petitioners and respondents landlord in the Bombay City Civil Court against respondent no.1 is not concerning Flat No.5 on 2nd floor. Respondent no.2 unless gets decree or declaration of tenancy rights in respect of flat and attic in question, it is difficult to accept that he has any right or interest in the property. Therefore, he is dis- entitled to claim any relief on the basis of the averments so made in the Suit and other proceedings initiated by him. Therefore, it is also difficult to accept respondent no.2’s submissions that he has any right or interest in the property at this stage. It is also clarified that the right or interest of respondent no.2, if any, is subject to the decision in the suit filed by him and not otherwise. The observations made in the order were in reference and subject to the decision of the suit. 14 In view of above, I am of the view that case is made out by the petitioners as there is an error apparent on the face of the record. 15 Therefore, I am inclined to allow this review petition. 16 In the result, Writ Petition No.5070/2008 is allowed in terms of prayer (a) 8 which reads thus: “(a) This Hon’ble Court be pleased to issue appropriate writ, order or direction, thereby quashing and setting aside part of the order dated 12.02.2008, passed by the Ld. Trial Judge/Court in Chamber Summons No.724 of 2007 in S. C. Suit No.4492 of 2002 in Bombay City Civil Court at Bombay more particularly contained in para 9 beginning from the words - “Interest of the Applicant can be protected by imposing a condition on the parties that if at all they desire to enter into compromise, they shall not do it without impleading the present applicant as party in the present suit.” and again the part of the operative order beginning from the words:- “however, the parties are directed that in the event of their entering into compromise, they shall implead the applicant in the suit first as party defendant; thereafter only they will submit consent terms, compromise pursis etc. for recording compromise.”. 17 In view of above, the Review Petition is allowed in terms of prayer (b). 18 No costs. (ANOOP V. MOHTA, J.)