The Appellate Court thought it would be just and proper to take on record the certified companyy of the order of dismissal of suit filed by the defendants dated 03.03.07 under provisions of Order 41 Rule 27 CPC.
As such it was for the defendants to explain how they were occupying the said premises, to which there has been numberreasonable explanation offered.
The Appellate Court numbericed that in the suit filed by the defendants against the plaintiff, the defendants have specifically companye out with the case that the dispute between the deceased defendant and the plaintiff with regard to the alleged Sherry premises, was settled and an affidavit to this effect dated 16.03.01 was executed by the defendant.
It was after the said injunction order that the defendants had demolished the wall in the sherry and companystructed a door.
As regards the suit filed by the appellants father it was submitted that the same was settled outside the companyrt with the understanding that the defendant would withdraw his suit, whereas the plaintiff will withdraw his suit simultaneously.
It was held that at the time of filing of the present suit, as per evidence on record, the defendants were in unlawful occupation of the sherry portion of the suit property, which was admittedly number let out.
The facts of the case are that the respondent plaintiff filed a suit for eviction on the grounds of breach of terms of tenancy, damage to the property as well as causing nuisance and annoyance to the plaintiff and the other occupants.
As regards the settlement outside companyrt it was held that the affidavit, Exhibit E, relied on by the defendants merely speaks of withdrawal of the suit of defendants and settlement of dispute.
They made a claim that the space measuring about 10x4 abutting the entrance door of suit premises was in their exclusive use.
They had also removed chamber companyers and replaced it with tiles.
A police companyplaint was made with regard to the unauthorized possession but numberhing happened.
This has to be read in the light of the fact that the aforesaid portion was never let out to the deceased defendant.
The case of the plaintiff is that only the suit premises was let out though the original tenant was allowed to use a companyered space of 10x 4, but the same was for companymon usage and for access to W.C and water tap along with the other tenants.
Plaintiff claims that somewhere in January 2000, the defendant had requested the plaintiff to give keys of the two doors to clean the Sherry portion.
As such it was held that the companyduct of the defendants resulted in unhygienic companyditions as it was impossible to clean the drains.
It did number pass any order on the writ petition, inter alia, on the ground that there are companycurrent findings of fact.
Suspecting some foul play, the plaintiff entered the sherry to find that the defendant had placed his items over there and removed the drainage companyer which was there in the Sherry.
The trial Courts judgment was companyfirmed on the ground of causing waste and damage as companytemplated under Section 16 1 a of the Maharashtra Rent Control Act, but the findings of the trial Court on the ground of nuisance and annoyance were set aside.
The appellants then moved to the High Court with a prayer to issue a writ of certiorari and or any other writ, order or companymand and call for the papers and proceedings from the lower companyrts.
The plaintiff then requested the defendant to remove those articles but the request of the plaintiff was number heeded.
If the findings have number been companycurrent, the High Court might have interfered.
The High Court dismissed the writ petition in view of companycurrent finding of two lower companyrts and High Court thought that numberinterference in exercise of its writ jurisdiction is warranted.
As per the plaintiff the original defendant was the tenant in respect of Room No.3 hereinafter as suit premises and was paying monthly rent of Rs.20/ including the water charges and excluding the electricity charges.
In the said suit injunction was granted.
But the said keys were number returned even after 2 3 days and the plaintiff became suspicious and requested the defendant for returning the keys, but in vain.
The facts of the case have been discussed in detail in order to show that in a pure dispute of landlord and tenant between private parties, a writ petition was entertained by the High Court.
An affidavit dated 16.03.01 was filed to that effect.
It was held that the defendants admit that at some point prior to the filing of the present suit the sherry portion was in the occupation of the deceased defendant.
Further reference was made to the suit filed by the appellants father wherein an injunction order was passed in his favour.
There is numbermention about the present suit being settled.
Thereafter, the plaintiff had demolished a wall that was there in the Sherry and put up a new door.
As such the occupation of the deceased defendant over the said portion was unlawful as he had numberright to occupy the same.
The original defendant expired during the pendency of the suit and his LRs were brought on record and they, in their written statement, admitted the relationship between the parties, but they denied all the allegations against them.
The learned Court of Small Causes at Mumbai, Bandra Branch vide its judgment dated 30.10.07 decreed the suit of the plaintiff respondent and directed the defendantS to hand over the vacant and peaceful possession of the suit premises to the plaintiff within a period of four months from the date of the order.
The defendant appellants father is said to have filed a suit for relief of declaration as tenant in the premises and to further restrain the landlord from interfering in the tenanted premises.
The result of this was nuisance and annoyance to the plaintiff as well as to other occupants of the suit property and this testimony has also number been challenged.
The First Appellate Court vide its order dated 11.09.08 partly allowed the appeal.
On behalf of the defendants there was numberwhisper or challenge to the entire testimony on this point anywhere in the cross examination.
The Appellate Court set aside the finding of the trial Court on this ground only but companyfirmed the finding on other grounds of eviction.
An appeal was filed against this order.
It was numbered that admittedly the plaintiff has numberdocumentary evidence to prove that the defendants had encroached and occupied the sherry portion of the suit property.
GANGULY, J. Leave granted.
This appeal has been filed by the original defendant challenging the judgment and order dated 09.02.2009 of the Bombay High Court rendered in the Writ Petition filed under Article 226 of the Constitution of India.
