Final Order 1

Order Details: Copy of Judgment
Pdf Text: CNR No. MHSCA3-00-0258-2025 Presented on : 17.02.2025.
Registered on : 17.03.2025.
Decided on : 22.01.2026.
Duration : Yrs. Mths. Days
0 11 5
IN THE COURT OF SMALL CAUSES, AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
A1 APPEAL NO. 18 of 2025
IN
R.A.E. SUIT NO. 90 OF 2017
1. Mrs Malti Mukund Madhekar of Pune
(Deleted)
2. Mr. Nandakishore Mukund Madhekar of
Pune aged 66 years, Occupation : Business
Indian Inhabitant.
3. Mr. Vinayak Mukund Madhekar of Pune
aged 60 years, Occupation : Business
Indian Inhabitant.
4. Mr. Sanjay Mukund Madhekar of Pune
(Deleted), aged 50 years, Occupation :
Housewife Indian Inhabitant.
All residing at 3, Saikunj, 11, Rambaug
Colony Paud Road, Pune – 411 038.
4.1) Mrs Aparna Sanjay Madhekar
aged 57 years Occ.- Housewife
Widow of Late Sanjay M. Madhekar
4.2) Miss. Manasai Sanjay Madhekar
aged 23 years Occ.- Student
Only child of Late Mr. Sanjay Madhekar
Both residing at 3, Saikunj, 11, Rambaug
Colony Paud Road, Pune – 411 038.
5. Mrs Anjali Anand Junnarkar of Pune aged
62 years, Occ.- Housewife, Indian
Inhabitant residing at 2, Lalat, Swarangari,
Sinhgad Road, Pune 411051
…. Appellants
(Orig. plaintiffs)
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Versus
1. Mrs. Vimala Padmakar Jape of Mumbai
aged about 76 years Occupation : Business,
Indian Inhabitant
2. Mr. Jayant Padmakar Jape of Mumbai aged
about 45 years Occupation : Service Indian
Inhabitant
3. Mr. Sandeep Padmakar Jape of Mumbai
aged about 43 years Occupation : Service
Indian Inhabitant
All residing at A-23-a Kalpataru Sparkle,
MIG Co-op. Hsg. Society, Group II, Nana
Dharmadhikar Road, Gandhi Nagar,
Bandra (East), Mumbai 400 051.
…. Respondents
(Original
defendants)
Adv. Ms. Pranjali Bhandari I/By Johnson John, for appellants.
Adv. Mrs. Devika Purav, for respondents.
Coram : Shri Ashish A. Ayachit,
Addl. Chief Judge
&
Shri D.R. Mali, Judge.
C.R. No. 41 (B.B.)
Date : 22nd Day of January, 2026
JUDGMENT :
(Per Ashish A. Ayachit, Addl. Chief Judge)
This Appeal is filed under Section 34 of the Maharashtra
Rent Control Act (hereinafter referred to as “the M.R.C. Act”).
2. The original plaintiffs, being aggrieved and dissatisfied with
the judgment and decree passed in R.A.E. Suit No. 90 of 2017 dated
13.01.2025, decided by the Court of Small Causes at Mumbai, Bandra
Branch, (Court Room No. 35), thereby dismissing the suit for eviction
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and possession and recovery arrears of rent filed under Section 15, 16
(1)(c) (g) of M.R.C. Act, have preferred the present appeal.
3. The parties have been referred to by their original
nomenclature as before the learned trial court. The appellants before us
are the original plaintiffs, and the respondents are the original
defendants.
4. The plaintiffs have filed the present suit for eviction and
possession of Flat No. A-23(a), ad-measuring 505 sq. ft. carpet area, in
possession of the defendants, more particularly described in paragraph
8 of the plaint (hereinafter referred to as “the suit premises”). The
plaintiffs have filed the suit for eviction on the following three grounds:
(a) Defendant failed to pay regular rent and committed
default and was in arrears of rent, and therefore,
notice under Section 15 of the M.R.C. Act dated
16.07.2016 was served upon the defendants calling
upon them to pay the rent for 124 months from August
2006 till date. The defendants failed to pay the rent
and committed willful default.
(b) The plaintiffs are in need of the suit premises for their
bona fide and reasonably requirement of family
members and, therefore, seek eviction under Section
16(1)(g) of the M.R.C. Act.
(c) The defendants are causing continuous nuisance and
annoyance to the plaintiffs and the society under
Section 16(1)(c) of M.R.C.Act.
5. The defendants appeared and raised several defences,
inter-alia, that the suit is barred by the principle of res judicata. Suit is
misconceived, mala fide, and filed to harass and dispossess them. The
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defendants further asserted that Late Mr. Padmakar Jape resided in and
financially contributed to the suit premises since 1969 but was denied
his rightful claims due to the society’s actions. It is stated that the
plaintiffs neither contributed to nor proved ownership or bona fide
requirement. They further stated that in view of redevelopment and
Hon’ble High Court orders recognized separate entitlements. They
cooperated and vacated the premises in 2011. There is no rent
agreement, and that rent was deposited in Court only under orders.
6. Upon the pleadings, the learned trial court framed several
issues at Exhibit 16. However, the learned trial court decided the suit
only on one issue, namely, that the suit is barred by the principle of res
judicata. The learned trial court recorded findings on that issue in the
affirmative and held that all other issues do not survive. Thus, there is
no appreciation of evidence on the issues framed during the trial.
7. We have heard the learned advocate Smt. Pranjali
Bhandari, instructed by Advocate Johnson John, for the plaintiffs, and
the learned advocate Mrs. Devika Purav for the defendants. The learned
advocate for the defendants also placed on record written notes of
arguments (Exh. 14).
8. Advocate Pranjali Bhandari for the plaintiffs briefly
submitted that the learned trial court erred in dismissing the suit solely
on the ground of the principle of res judicata. She submitted that the
learned trial court neither recorded findings on the issues framed nor
appreciated the evidence placed on record, which is mandatory under
Order XIV of the Code of Civil Procedure, 1908 (hereinafter referred to
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as “the C.P.C.”). She further submitted that the learned trial court
misinterpreted and misconceived the undisputed facts relating to earlier
litigation between the parties.
9. Mrs. Pranjali Bhandari, learned advocate for the plaintiffs
canvassed the brief history of litigation between the parties. She invited
our attention to the impugned judgment wherein the learned trial court
considered the earlier litigation but failed to appreciate and apply the
proper legal provisions and principles. According to her, there is a
recurring cause of action, and merely because the earlier suit has been
decided and a Civil Revision Application is sub judice before the Hon’ble
High Court, the subsequent suit for recovery of possession on the
grounds of bona fide requirement, nuisance, and default in payment of
rent is not barred, as these are recurring causes of action available to
the landlord. She relied upon the judgment of the Hon’ble Delhi High
Court in
Rajinder Parshad Jain vs. Bal Gopal Das, 1998 VII AD (Delhi)
589. She submitted that the recurring cause of action assumes
significance in landlord-tenant disputes and, therefore, the learned trial
court committed a serious error of law by deciding the suit without
adjudicating the other issues. She accordingly prayed for remand of the
matter for fresh consideration and trial in accordance with law.
10. The learned advocate Ms. Devika Purav for the defendants,
on the other hand, supported the impugned judgment and submitted
that the earlier suit bearing R.A.E. & R. Suit No. 852/2667 of 1981 was
decreed and that the decree was set aside in appeal. The Civil Revision
Application is still sub judice before the Hon’ble High Court. The
plaintiffs failed to pursue the earlier proceeding before the Hon’ble High
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Court and instead filed a separate suit, and therefore, the present suit
was rightly dismissed by applying the principle of res judicata. She,
therefore, prayed for dismissal of the appeal with costs.
POINTS FOR DETERMINATION
11. Upon considering the arguments of learned advocate for
the plaintiffs and written submissions of the learned advocate for the
defendant, the following points arise for our determination, and we
have recorded our findings for the reasons given below:
Sr. No. POINTS FINDINGS
1. Whether the learned trial court was
justified in deciding the suit only on the
issue of res-judicata ?
No.
2. Whether the learned trial court required
to decide all the issues settled and framed
during the trial ?
Yes.
3. Whether the impugned judgment and
decree legal, proper and correct ?
No.
4. Whether interference is called for in the
impugned judgment and decree in the
appeal ?
Yes.
5. What order and decree ? Appeal is allowed
as per final order.
REASONS
AS TO POINTS NOS. 1 AND 2 :-
12. At the outset, we would like to note that the Hon'ble Delhi
High Court in the case of Rajinder Parshad Jain vs. Bal Gopal Das,
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1998VIIAD (Delhi) 589 observed as under :
“16. The general principles of res-judicata are based
firstly on public policy and secondly on private justice.
The plea of res-judicata is not one of jurisdiction of the
court. It is a rule of convenience. Nobody shall be
vexed twice on the same issue. The rule of res-judicata
cannot be so applied as to make it an oppressive
instrument guided towards defeating the public policy
itself.
17. So also the question of recurring cause of
action assumes significance in the context of the
doctrine of res-judicata, more so when it is sought to
be applied to the suits for eviction from premises
based on landlord - tenant relationship. In Surajmal
vs. Radhey Shyam, a suit for eviction from premises
comprising of shop on ground of
bona fide need was
dismissed. The second suit on the same ground was
held to be competent. Their Lordships held that the
bona fide need must be considered with reference to
the time when a suit for eviction is filed and it cannot
be assumed that once the question of necessity is
decided against the landlord, it has to be assumed
that he will not have a
bona fide and genuine
necessity forever in future.”
13. Keeping the in mind aforesaid legal observations, Section
11 read with Order 14 Rule 2, and Order 41 rule 23 of CPC, we have
perused the record. It revealed that that in the case the learned trial
court has framed following issues (Exh. 16) on 17.09.2018.
ISSUES
1. Whether the plaintiffs prove that, the husband of
plaintiff No. 1 and the father of the plaintiff No. 2 to 5
was the owner of the suit premises ?
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2. Whether the plaintiffs prove that, the original owner
of the suit premises has given it to its maternal
relative Mr. Padmakar Jape for residential use on
sympathetic grounds on rent @ Rs. 170.32 p.m. ?
3. Whether the plaintiffs prove that, defendants have
failed and neglected to pay the rent of the suit
premises since June 2015 ?
4. Whether the plaintiffs prove that, they have issued
legal notice to the defendants calling upon them to
pay the arrears of rent amount ?
5. Whether the plaintiffs prove that, they require the suit
premises reasonably and
bona fide for their use and
occupation ?
6. To whom greater hardship will be caused by passing
the decree than refuse to pass it ?
7. Whether the plaintiffs prove that, the defendant is
doing the business of estate agent and giving tuitions
from the suit premises ?
8. Whether the plaintiffs prove that, defendants
continuously causing annoyance and nuisance to
them ?
9. Whether the plaintiffs are entitled for possession of
the suit premises as prayed ?
10. Whether the plaintiffs are entitled for
mesne profits ?
11. What order and decree ?
14. It revealed from para 4 of the impugned judgment that the
learned trial court has deleted issue Nos. 1,2 and 7 from the aforesaid
issues and framed additional issue of res-judicata on 26.09.2024. It
revealed that the parties have already argued the matter on merit.
Written Notes of arguments were filed on record. However, the learned
Trial Court deemed it proper to delete issues No. 1,2, and 7 and add
issue of res judicata. Thereafter, the parties have not adduced any
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evidence and matter has been heard again and decided by impugned
judgment. The issues and findings thereon, which are mentioned in
the judgment are reproduced as under :
Sr. No. ISSUES FINDINGS
1. Whether the suit is barred by the principle of
Res-Judicata?
Yes.
2. Whether the plaintiffs prove that,
defendants have failed and neglected to pay
the rent of the suit premises since June,
2015 ?
Does not
survive.
3. Whether the plaintiffs prove that, they have
issued legal notice to the defendants calling
upon them to pay the arrears of rent
amount?
Does not
survive.
4. Whether the plaintiffs prove that, they
require the suit premises reasonably and
bonafide for their use and occupation?
Does not
survive.
5. To whom greater hardship will be caused by
passing the decree than refuse to pass it ?
Does not
survive.
6. Whether the plaintiffs prove that,
defendants continuously causing annoyance
and nuisance to them ?
Does not
survive.
7. Whether the plaintiffs are entitled for
possession of the suit premises as prayed ?
Does not
survive.
8. Whether the plaintiffs are entitled for mesne
profits ?
No.
9. What order and decree ? The suit stands
dismissed with
costs.
15. Order XLI Rule 27 of the CPC empowers the Appellate
Court to remand the matter when the suit has been decided on a
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preliminary point. In view of Order XIV Rule 2 of the CPC, the Court is
required to decide all the issues and record its findings thereon.
16. In the present case, we have already discussed the issues
which were originally framed and subsequently recast in the judgment
by the learned trial court along with its findings. The learned trial court
has deleted Issue Nos. 1, 2 and 7, which, though not happily worded or
properly constructed, clearly indicated that the relationship of landlord
and tenant was in dispute and required adjudication and proof by the
parties. The defendants, in their written statement, have denied the
ownership rights of the plaintiffs as well as the existence of any tenancy
agreement between the parties. Therefore, these issue of relationship of
landlord and tenants assume significance and were necessary to be
adjudicated by the Court of Small Causes only.
17. It is necessary to clarify that in Mumbai, the Court of Small
Causes, established under the Presidency Small Causes Court Act, has
exclusive jurisdiction to adjudicate, deal with, and try disputes between
landlord and tenant or licensor and licensee, lessor and lessee, and
matters incidental and connected thereto. In the present suit, the
chequered history of litigation between the plaintiffs and defendants is
not in dispute. On the contrary, the plaintiffs themselves have pleaded
the earlier litigation in the plaint. It is not is dispute that Civil Revision
Application is pending before the Hon’ble High Court. Therefore, the
approach of the learned trial court in dismissing the suit by applying the
principle of res judicata is incorrect and improper. We may note that in
paragraph 31 of the impugned judgment, which is reproduced herein
for ready reference, the learned trial court observed as under:
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“In my view, considering all the evidence brought on
record and the orders passed from time to time by the
Hon’ble High Court which are produced on record,
the plaintiffs cannot bring a fresh suit in respect of
Flat No. A-23(a) which was handed over to the
defendants vide order dated 18/07/2011 in lieu of
the original Flat No. 180, despite the pendency of
Civil Revision Application filed by the plaintiffs, in
respect of which no right is created in favour of the
plaintiffs, as made clear in the order. All the issues in
respect of Flat No. 180 are already decided by the
competent court between the same parties and/or
their legal heirs litigating under the same title in
appeal proceedings. Both the parties have the same
legal interest in the subject matter. Considering the
law laid down in Section 11 of the Code, the principle
of res judicata is clearly applicable to the facts and
circumstances of the present case. Therefore, I do not
find any force in the submissions made on behalf of
the learned Advocate for the plaintiffs. On the
contrary, I find substance in the arguments advanced
by the learned Advocate for the defendants that the
suit is barred by the principle of res judicata. Hence, I
answer Issue No. 1 in the affirmative.”
18. The learned trial court held that the arguments advanced
by the defendants had substance and, therefore, applied the principle of
res judicata. However, without expressing any opinion on the merits of
those observations and by keeping the issue of res judicata open, it is
necessary to clarify that for the application of the doctrine of res
judicata, the following legal requirements must be satisfied:
(i) The former suit and the subsequent suit must be
between the same parties or parties litigating under
the same title.
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(ii) The issues in the former and subsequent suits must
be directly and substantially the same and must
arise from the same cause of action; the bar cannot
arise from mere incidental or collateral findings.
(iii) The former suit must have been heard and finally
decided by a court of competent jurisdiction.
19. In the present suit, it is an admitted position that the
predecessor of the plaintiffs had filed R.A.E. & R. Suit No. 852/2667 of
1981 against the predecessor of the defendants for eviction under the
provision of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947. The said suit was decreed, against which an appeal and
cross-objection were preferred before this Court vide Appeal No. 300 of
2006 and Cross-Objection No. 10 of 2006. The Appellate Court allowed
the appeal and dismissed the cross-objection, thereby setting aside the
judgment and decree of eviction. Against the said judgment, Writ
Petition No. 304 of 2008 (as submitted by the learned advocates for the
parties, now converted into a Civil Revision Application) is pending
adjudication before the Hon’ble High Court.
20. It is also a matter of record that during the pendency of the
said proceedings, the developer filed Suit No. 876 of 2011, wherein by
an order dated 18.07.2011 passed in Notice of Motion No. 1191 of
2011, the Hon’ble High Court directed the predecessor of the
defendants to hand over possession of the premises to the developer.
Thereafter, the developer constructed a new building and possession
was restored to the defendants. The present suit has been instituted by
the plaintiffs for recovery of arrears of rent for the subsequent period
and for eviction on the grounds of bona fide and reasonable
requirement as well as nuisance.
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21. It is necessary to bear in mind that the suit premises
involved in the earlier suit have since been demolished and a new flat
has been constructed in its place, which has been handed over to the
defendants pursuant to the directions issued by the Hon’ble High Court.
The defendants have thereafter disputed the ownership rights of the
plaintiffs and have categorically denied the existence of any relationship
of landlord and tenant between the parties. These are pure questions of
fact which go to the root of the matter and, therefore, require proper
adjudication, appreciation of evidence, and recording of specific
findings by the learned Trial Court.
22. It is equally necessary to keep these aspects in mind while
examining the applicability of the doctrine of res judicata. The change
in the nature and identity of the suit premises, coupled with the
subsequent conduct and pleadings of the parties, particularly the denial
of ownership and tenancy, gives rise to fresh and recurring causes of
action. Under the Maharashtra Rent Control Act, 1999, a subsequent
suit based on a recurring or continuing cause of action, such as non-
payment of rent, denial of title, bona fide requirement, or nuisance is
legally maintainable, notwithstanding earlier proceedings between the
same parties.
23. Therefore, the issue of res judicata cannot be applied
mechanically or in isolation without examining whether the cause of
action, the subject matter, and the issues directly and substantially in
controversy in the subsequent suit are identical to those finally decided
in the earlier proceedings. These questions necessarily require a full-
fledged trial and adjudication on merits by the learned Trial Court.
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24. Therefore, the learned trial court has committed a serious
error of law in deciding the suit solely on the issue of applicability of the
principle of res judicata. It was obligatory upon the learned trial court
to appreciate the entire evidence on record and to record findings on all
issues, including the issue of res judicata. Accordingly, we answer Point
No. 1 in the negative and point No. 2 in the affirmative.
AS TO POINTS NOS. 3 AND 4:
25. In view of the aforesaid findings, the judgment of the
learned trial court is not only illegal but also perverse. The learned trial
court ought not to have deleted the issues and framed the issue of res
judicata without affording due opportunity to the parties. It is equally
erroneous, in the facts and circumstances of the present case, to decide
the entire suit solely on the issue of res judicata and to leave the other
relevant issues undecided by recording that they do not survive, without
recording any findings thereon.
26. Be that as it may, since this Court is adjudicating the appeal
as the final fact-finding Court, it would not be appropriate to appreciate
the evidence and record findings for the first time, as doing so would
deprive the parties of one of their statutory remedies. Therefore, in view
of Order XLI Rule 23 of the CPC, the suit is required to be remanded to
the learned trial court for fresh adjudication in accordance with the
observations made herein. Hence, interference with the impugned
judgment and decree is necessary and warranted. Accordingly, we
answer Point Nos. 3 and 4.
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AS TO POINT NO. 5:
27. In view of the aforesaid findings, the appeal succeeds. As
regards costs, the parties are directed to bear their own costs in this
appeal, as the matter is being remanded for a fresh trial. Accordingly,
we answer Point No. 5 and pass the following order:
ORDER
1. The appeal is allowed.
2. The impugned judgment and decree passed by
the learned trial court in R.A.E. Suit No. 90 of
2017 dated 13.01.2025, Court Room No. 35
(Bandra Branch), are hereby quashed and set
aside.
3. The suit is restored and remanded to the Court
of Small Causes, Court Room No. 35, Bandra
Branch, for fresh hearing and decision in
accordance with law.
4. The suit shall be restored to its original
number and the parties shall be afforded an
opportunity to adduce evidence, if any, on the
issue of res judicata and all other issues, which
shall be decided afresh.
5. The learned trial court shall be at liberty to
recast the issues, if necessary, in view of the
pleadings and defences raised by the parties.
6. The parties are directed to remain present
before the learned trial court on 31.01.2026.
7. A decree in this appeal be drawn accordingly
8. The parties shall bear their own costs of this
appeal.
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9. The Record and Proceedings be returned and
the judgment be communicated to the learned
trial court forthwith.
I Agree,
(Dipak R. Mali) (Ashish A. Ayachit)
Judge Addl. Chief Judge,
C.R. No. 41 C.R. No. 41
Court of Small Causes,(B.B) Court of Small Causes,(B.B)
22.01.2026 22.01.2026
Judgment dictated on : 22.01.2026
Judgment transcribed on : 22.01.2026
Judgment checked & signed on: 22.01.2026
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