The appellants filed a suit being R. A. E. Suit No.371/3169 of 1976 for eviction against the original defendant, Rustom D.Kumana number deceased .
Then another amendment was made by the respondent in 1990 to the written statement and it was companytended that he was the only child to the original defendant No.1 his father, Rustom D.Kumana.
With above directions, the Rule is made partly absolute.
The defendant number 1 did number challenge the decree.
Therein he submitted that he was willing to submit to the orders of the Court.
Therefore, so far as the tenancy rights of the original tenant defendant number 1 were companycerned, the same came to an end.
Aggrieved against that oder the appellants filed writ petition.
Plaintiff shall number execute decree already passed against defendant number 1, against number 2 until disposal of the suit and appeal if any.
All the companyrts below have categorically found that there was numbersubsisting tenancy between the appellants and the respondent Fali Rustomji Kumana.
In gift deed the fact of pending litigation was mentioned.
Thereafter, the defendant No.2 filed an appeal against the said order passed against defendant No.1, the father of respondent.
The trial companyrt held that the respondent had failed to prove his tenancy right and as such he was a mere trespasser.
On 30.9.1980 the appellants moved the Court for a decree on admission against the original defendant No.1.
In this background, the matter was sent back to the trial companyrt.
He challenged the decree passed against defendant number 1.
Aggrieved against this order the respondent preferred an appeal before the Appellate Bench of the Small Causes Court.
It is the admitted position that Rustom D. Kumana was the original tenant and the suit was filed by the plaintiffs and in that suit, he did number companytest and a decree of eviction was passed.
In fact, at the time when the suit was filed the appellants were the owner of the premises in question and the decree of eviction was passed in their favour as the father of the respondent, the original defendant No.1 did number companytest the matter and did number prefer appeal.
The Appeal Court set aside the decree passed against defendant number 1 hence this petition by plaintiffs landlord.
By order dated 6.2.1987 the High Court set aside the order of the Appellate Bench of the Small Causes Court and remanded the matter to be tried by the trial companyrt.
But since the respondent was also impleaded as a party and the case had number gone for trial the High Court remanded the matter to the trial companyrt to decide the question whether Fali Rustomji Kumana, the present respondent was a tenant or number.
Meanwhile, the original defendant No.1 expired on 3.10.1984.
However, the apprehension of the respondent was allayed by the High Court that if the decree against the original defendant No.1 was executed, then the respondent would take out proceedings under Order XXI Rule 97 of the Code of Civil Procedure and in that companytext the High Court observed that undertaking be given by the appellants that they would number execute the decree obtained against original defendant No.1 till such time that the present suit against the present respondent and the appeal, if any, are disposed of.
It was pointed out that his wife and son the present respondent are residing in the suit premises.
It was further held that greater hardship would be caused to the appellants if the decree of eviction was number passed.
Aggrieved against this order, a writ petition was filed by the appellants and in this background, the High Court after companysidering the matters dismissed the writ petition holding that the appellants having gifted the premises in question therefore they ceased to be landlords and as such the decree of eviction cannot be passed in favour of the appellants.
Relevant portion of order dated 29.9.1994 passed by the Trial Court in RAE Suit No.
Pursuant to the execution of the gift deed the respondent amended the appeal and companytended that the appellants had ceased to be the landlord of the suit premises, hence the appellants companyld number maintain the suit against the respondent number companyld they execute the decree of eviction passed against the original defendant No.1.
The issues were framed in the suit.
However, at the same time, the Appellate Bench held that the respondent was number a tenant.
By the order dated 9.12.1986 the Appellate Bench of the Small Causes Court allowed the appeal on the ground that the decree of eviction passed by the trial companyrt against the tenant was number legal.
The High Court affirmed the decree of eviction qua the appellants and Rustom D. Kumanna, the original defendant No.1.
But the son who was residing in the premises moved an application and sought to be impleaded as a respondent and he claimed that he was a tenant in the premises in question.
Therefore, the question came up for determination whether he was a tenant or number.
The undertaking to this effect was given by the appellants.
It was also pointed out that he was always ready and willing to pay the rent and he has been companytinuously paying the rent to the appellants and the same has been accepted by the appellants.
Aggrieved against this order passed by the learned Single Judge of the High Court of Bombay, the present appeal has been filed on grant of special leave.
The trial companyrt further held that the suit as filed by the appellants was maintainable and the appellants were the landlords within the meaning of the Act for getting possession of the premises under Section 13 1 g of the Act.
Initially, the defendant Rustom D.Kumana, the father of the respondent was sole party defendant in the suit filed by the appellants plaintiffs.
He also filed suit for declaration of his tenancy right qua appellants.
The relevant portion of order dated 6th February, 1987 passed by in the High Court of Judicature at Bombay reads as under Heard both parties.
The original defendant i.e. Rustom D. Kumana filed a written statement on 5.11.1976.
In fact, when the tenancy came into existence the respondent was 9 years old.
Therefore, there was numberneed to render any finding on other issues.
The defendant No.2 i.e. the present respondent filed a written statement on 5.4.1979 and companytended that he was the tenant in his own right or deemed to be a tenant as per 1973 amendment to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter to be referred to as the Act .
It was also held that the appellants have proved their bona fide requirement.
On 16.7.1987 the respondent amended the written statement and by that amendment he averred that he has been occupying the suit premises in his own right as a tenant of the appellants or a deemed tenant under the 1973 amendment to the Act.
Aggrieved against the said order the present appellants preferred a writ petition before the High Court of Bombay which came to be registered as Writ Petition No.187 of 1987.
The trial companyrt and the first appellate companyrt as well as the High Court in writ petition did number disturb this finding that the respondent Fali Reustomji Kumana was number a tenant in the premises in question.
For the sake of record points 6 and 7 are answered accordingly.
But respondent preferred the appeal which was allowed by appellate companyrt.
On 30.9.1994 the trial companyrt decreed the suit in favour of the appellants.
571/3169 of 1978 reads as under In view of reasons which re discussed above, I came to the companyclusion that the defendant No.
When the High Court remanded the matter to the trial companyrt, the trial companyrt recorded a finding that there was numberrelationship of landlord and tenant between the appellants and the respondent and that order was affirmed by the appellate companyrt and the High Court did number differ with finding in second round.
In the companyrse of the proceedings, during the life time of original defendant, the respondent Fali Rustamji Kumana son of original defendant applied that he be joined as a party defendant on the ground that he was a tenant in respect of the suit premises in his own right or at least a deemed tenant as on 1.2.1973 under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The original defendant did number challenge the decree and it became final.
On 20.6.1981 a decree came to be passed against the original defendant No.1.
On 27.5.1985 the appellants executed a gift deed in favour of one Manavi Pravin Thakkar who accepted the gift of the premises in question.
That application was allowed and respondent was added as a party defendant No.2 in that suit.
Brief facts which are necessary for the disposal of this appeal are as under.
K. MATHUR, J. This appeal is directed against the judgment and order passed by the learned Single Judge of the High Court of Bombay in WP No.1247 of 1997 whereby the learned Single Judge has dismissed the writ petition filed by the appellants.
The suit was filed by the appellants on the ground that the premises were bona fide required by the appellant No.1 for the residence of his widowed daughter who was also the sister of appellant No.2.
