1 2.cra766.09 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 766 OF 2009 Indirabai Mahadev Joglekar. ....Applicant. Vs. Krishnaji Mahadev Upadhye & anr. ....Respondents Mr. Rajesh Dadar, Advoate for Applicant. Mr. V. V. Pai, Advocate for Respondents. CORAM:- GIRISH GODBOLE, J DATED:- SEPTEMBER 12, 2011 P.C. 1. Heard Mr. Datar, Advocate for the Applicant and Mr. Pai, Advocate for the Respondent(original Plaintiff). The R.A.D. Suit No. 4542 of 1974 was filed by the Original licencee Govind Laxman Arankalle which was dismissed and Appeal No. 393 of 1990 was filed. The said Govind Arankalle died on 1/10/1993 and thereafter the Appeal was dismissed as the same had abated. Thereafter, the original Defendant Indirabai Mahadeo Joglekar filed R.A.D. Suit No. 1000 of 1994 which was also dismissed for want of prosecution. The original Plaintiff thereafter filed the Suit under Section 41 of the Presidency Small Cause Court Act, 1882 2 2.cra766.09 being L.E. Suit No. 1/1 of 2001, which is decreed on 18/11/2005 and Appeal No. 4 of 2006 has been dismissed on 5/9/2009. 2. Mr. Datar submits that in the absence of probate of Will dated 11/11/1999, the bar under section 213 of the Indian Succession Act, 1925 will apply. Reliance was placed on the Judgment of the Learned Single Judge in the case of Babasaheb v/s. Smt. Manjulabai reported in 2001(2) Mh. L.J. 945. Mr. Pai submitted that the ratio of the above Judgment of the Learned Single is not appblication. 3. I have considered the submissions. The Plaintiff in this case has led evidence about the Will in proceedings under Section 41 between licensor and licensee. Any heir of the licensor can prosecute the proceedings and the question regarding due execution and proof of Will is not really Germane to the real controversy involved in such a suit. It is not disputed that present Respondent is one of the heirs of the Plaintiff. Hence, there was no impediment in the Trial Court proceeding with the hearing of the Suit without a probate. 4. In view of the fact that the original licencee had failed in getting declaration of tenancy and in view of the clear finding that the licence was 3 2.cra766.09 not subsisting as on 1/2/1973 when the Bombay Rent Act was amended and on account of dismissal of the R.A.D. Suit No. 1000 of 1994 as also R.A.D. Suit No. 4542 of 1974, no error of jurisdiction has been committed by the Trial Court and Appellate Court. No case for interference is made out. Civil Revision Application is dismissed. 5. At this stage, Mr. Datar prays for time to vacate the suit premises till 31st May, 2012, subject to the condition that apart from the sum of Rs. 2,500/- per month which has been deposited till end of August, 2011 as an Ad-hoc compensation, the Applicants would offer to increase the said amount to Rs. 3,500/- per month till 31st May, 2011. There is no decree for equiry into mesne profit nor is there any decree for compensation. In view of this, prayer is reasonable. It is therefore directed that dispite dismissal of the Civil Revision Application, the Decree for Eviction shall not be executed till 31st May, 2012, subject to the following conditions : (1) Within a period of 4 weeks from today, the Applicant and all adult members of the family of the Applicant shall file usual undertaking in this Court to vacate the suit premises on or before 31st May, 2012. The undertaking should also contain a statement that except the Applicant and his Family members, no one else will 4 2.cra766.09 be in possession of the suit premises and that the Applicant and/or his Family Members will not part with possession or create any third party rights or interests in favour of any person. (2) Compensation of Rs. 3,500/- will be directly paid to the Respondents for the period from 1/9/2011 till the time the Applicant continues to be in possession. The Respondents are permitted to withdraw the amount deposited by the Applicant in the Small Causes Court at the rate of Rs. 2,500/- till 31/8/2011 alongwith accrued interest thereon. (3) Compensation for the month of September, 2011 to be paid on or before 15th October, 2011. The parties and the Court of Small Causes to act on the authenticated copy of this Judgment. (GIRISH GODBOLE, J)