Laxmidas Morarji (D) By Lrs vs Miss Behrose Darab Madan

2) The facts leading to these appeals are as under:-

3) In the written statement filed, respondent apart from others, had stated that the court of small causes at Bombay has no jurisdiction to entertain the petition, since the landlord of the premises has not accepted her as a tenant of the suit premises; she has been adopted as a daughter by the deceased tenant; deceased tenant has by her last will, bequeathed the tenancy rights of the suit premises; she is the daughter of sister of the deceased tenant and was residing with the deceased tenant and, therefore, would fit in to the definition of a tenant as envisaged under Section 5(11)(c)(i) of the Act and, therefore, entitled to an eviction notice. 3

4) The Small Causes Court, while dismissing the suit by its order dated 02.07.1977, held that, the law of adoption is unknown to the Parsis and the defendant No.5 (respondent) has proved the fact that she was residing with the deceased tenant as a member of her family and as such she is entitled to claim tenancy rights under the provisions of Section 5(11)(c)(i) of the Act.

5) The original owner along with the predecessor of the present petitioners, being aggrieved by the judgment of the court of Small Causes at Bombay preferred an appeal before the court of Small Causes at Bombay in Appeal No.74 of 1978. The appellate court, on consideration of oral and documentary evidence held that, there was no landlord and tenant relationship between executors of will and the petitioners and therefore the suit itself was not maintainable. The respondent retains the tenancy rights as she was the adopted daughter of the deceased tenant under her will dated 2nd April, 1959 and was a member of her family residing with her at the time of her death. It was also observed that bequeath of the tenancy rights either of the residential premises or of shop premises cannot be given effect to, unless the concerned person satisfies the requirement of Section 5(11)(c)(i) of the Act and lastly the defendants 1 to 4 have not produced any evidence to show that the adoption is 4 unknown to Parsis. In view of the above findings the appellate court had dismissed the appeal.

6) Against the decision of the Appellate Court, the appellant filed writ petition before the High Court. The learned single Judge dismissed the writ petition, being of the opinion that there is no perversity in the findings and the conclusions reached by the Trial Court and the first appellate court and also has observed that no exception can be taken to the findings recorded by the trial court that the respondent would inherit the tenancy of the suit premises as she was residing with the tenant as a member of the family of the tenant.

9) These appeals were heard in part on 15th April, 2009 and 30th July, 2009 and when the matters were taken up for hearing on 6th August, 2009, the learned counsel for the respondent stated that as desired by the 5 respondent, he has given no objection to her and she wants to argue the matter in person. The respondent was present before the Court. Instead of arguing the matter, she sought an adjournment. The same was declined, since the appeals were pending on the Board for last seven years and the learned counsel for the appellant had closed his submissions.

13)The specific case of the plaintiff in the suit filed was that the respondent is not a tenant and has no legal and valid claim over the suit premises and therefore no notice was required to be given to her. However, she is arrayed as a party in the suit by way of caution and to avoid any technical objection in future. It was also mentioned in the suit that the defendants 1 to 4 (trustees and executors of the will) have parted with the possession of the suit premises to defendant No.5 (respondent in this appeal). It was also mentioned that the suit is for recovery of the suit premises to which the provisions of Bombay Rent Control Act would apply.

14)Apart from others, it was the defence of the defendant No.5 (respondent in this appeal), that the Small Causes Court, Bombay does not have jurisdiction to try the suit, if the plaintiff were to assert that she is not the tenant of the suit premises.

24)In view of the aforesaid settled legal principles, it is not possible to accept the request of learned senior counsel for the appellant. 15

25)Since we are of the opinion that the Small Causes Court at Bombay had no jurisdiction to entertain the suit, we have not pronounced any opinion on the merits of the appellant's case.

26)As the appellants were bonafide prosecuting the suit before the court which had no jurisdiction to entertain the same, we direct, that if along with the plaint, an application under Section 14 of the Limitation Act, 1963 is filed the time from the date of institution of the suit till this day shall be excluded in computing the period of limitation in filing the suit. It is further directed that if any such suit is filed, the same and consequent appeal/appeals/revision shall be disposed of within a period of one year from the date of its filing in view of the fact that unfortunately the present eviction matter remained pending for forty two long years.

27)Civil Appeal No. 5786 of 2002 is, accordingly, dismissed.

28)In view of the dismissal of Civil Appeal No.5786 of 2002 by us today, Civil Appeal No.5787 of 2002 does not survive and is, accordingly, dismissed. No order as to costs.