Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHSCA30010982024 Presented on : 06.12.2024
Registered on : 23.12.2024
Decided on : 17.06.2025
Duration : 06 months 10days
IN THE COURT OF SMALL CAUSES, AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
REVISION NO. 123 of 2024
IN
ORDER BELOW EXHIBIT -11
IN
RAD SUIT NO. 170 OF 2021
Mr. Santosh Sahebrao Sutar,
Age: 29 years, Occupation: Service
residing at Satghare House, Room No.5,
Ground floor, Bazar Road, Bandra (West),
Mumbai-400050
Applicant
(Org. Plaintiff)
VERSUS
1. The Court Receiver, High Court,
Bombay, having his office at Bank of
India Building, 2nd floor, M. G. Road,
Fort, Mumai- 400001.
(Org. Defendant)
2. Mr. Kamlakar Lahukumar Satghare,
Hindu, Indian Inhabitant, Age: 90 years
Occupation: Retired from Service,
residing at 49 Satghare House
Adjacent to Ram Mandir, Bazar Road,
Ground floor, Bandra (West),
Mumbai-400050.
Respondents
(proposed
defendant)
Advocate Mr. H. T Pawar & Mr. Yadnesh Aher for applicant.
Advocate Mr. Devdatt Chalke for respondent No. 2.
Coram : Shri A. A. Ayachit,
Addl. Chief Judge
&
Shri D. R. Mali, Judge.
C.R. No. 41 (B.B.)
I/c C. R. No.31
Date : 17th Day of June, 2025.
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JUDGMENT : (Per Shri A.A. Ayachit, Addl. Chief Judge)
This is revision application under Section 34 of the
Maharashtra Rent Control Act filed by the original plaintiff
challenging the order passed below Exhibit-11 in RAD Suit No.170
of 2021 dtd.25.04.2024.
2. Perused revision application, reply and documents filed
on record.
3. We have referred the parties by their original
nomenclatures. The applicant is original plaintiff before the learned
trial court and respondent No. 2 is intervenor.
4. The applicant/original plaintiff has filed the suit for
declaration of his tenancy right in respect of Room No.5
admeasuring 160 sq.ft. carpet area on ground floor, situated at CTS
No.308 Bazar Road, Bandra (W), Mumbai. The defendant in the
suit is Court Receiver appointed by the Hon’ble High Court in
Partition Suit No.2798 of 1989 by order dtd.09.12.2009. The said
suit had been filed by Surena Malharrao Satghare against
Purshottam Malharrao Satghare & Ors for partition of the property
amongst co-owners. The intervenor Kamlakar Lahukumar Satghare
is defendant No.11 in partition suit before the Hon’ble High Court.
5. Keeping in mind aforesaid admitted position, we have
consider the argument canvassed before me. We have heard
learned advocate for applicant and respondent No. 2.
6. Learned advocate Mr. Yadnesh Aher representing
applicant/plaintiff submitted that the impugned order has been
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Revision No.123 of 2024 3 of 7 Judgment...
passed in the absence of advocate of the plaintiff. He submitted
that learned trial court has directed the plaintiff to incorporate
intervener in the suit as a party-defendant and carry out the
necessary amendment. He submitted that impugned order is illegal
and incorrect for the reason that owner is not necessary in the suit
between tenant and landlord. He relied upon the judgment of
Hon’ble High Court in the case of Aspi Rustomji Acharya, Parsi &
Ors Vs. Andrewkaka alias Andrukhakha & Ors.a(1983(1)All India
Rent Control Journal 678) He submitted that the Court Receiver is
a landlord for collection of rent and therefore owners or co-owners
are not necessary party in the suit filed by the tenant. He would
submit that similar suit has been filed by the other tenant wherein
the intervener has been added as a necessary party. The plaintiff
has filed the Writ Petition No.4061 of 2025 against the said order,
wherein the Hon’ble High Court admitted the writ petition and stay
the suit proceeding of that suit. Therefore, he would submit that
impugned order passed in the present suit by the learned judge
under Order 1 Rule 10 of CPC directing the plaintiff to add
intervener as a necessary party is against settled principles and
therefore he requested to set aside the same.
7. Learned advocate Mr. Devdatta Chalke representing
respondent No. 2/intervener submitted that the Court Receiver is
custodian legis of the property during the dispute. However, it does
not mean that the owners of the property cannot protect the
property or participate in the legal proceeding in respect of their
property. He submitted that the presence of the co-owner in the
suit for declaration of tenancy right, the owner is necessary party
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for proper adjudication and therefore he supports the impugned
order. He submitted that because the learned advocate for plaintiff
has not been heard by the learned trial court does not prejudice his
right in any way. The learned trial judge has considered the
application of intervener and also consider a detail say filed by the
plaintiff and therefore no prejudice is caused. The impugned order
has not violated the principles of natural justice. It is is legal and
passed on the basis of record. Hence, he requested to dismiss the
revision application.
8. The following points arise for our consideration and
we record the findings thereon for the reasons given below :
Sr. No. POINTS FINDINGS
1. Whether the intervener is necessary
party in the suit proceeding?
Yes.
2. Whether impugned order is legal,
proper and correct ?
Yes.
3. Whether interference is required in
the impugned order? No.
4. What Order ? Revision is
dismissed as per
final order.
REASONS
AS TO ISSUE NO. 1 to 3 :
9. Admittedly the partition suit referred above is pending
between the co-owners, wherein the Hon’ble High Court by order
dtd. 27.01.2009 pleased to pass the following order:-
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“UPON READING the Affidavit of the Defendant
No.11 AND UPON HEARING Mr. Hetal Thakore
Counsel, instructed by M/s. Thakore Jariwala &
Associates, Advocates for the Plaintiffs, I DO
HEREBY ORDER that the Court Receiver, High
Court Bombay do hereby institute and prosecute
the suit in the Small Causes Court for the purposes
of as more particularly mentioned in paragraph 6
of Affidavit in Support if necessary AND I DO
HEREBY LASTLY ORDER THAT costs of this Judges
Order be costs in the cause.”
10. The present suit has been filed by the tenant seeking
the declaration on his tenancy right after the demise of his father
under the provisions of Bombay Rent Act as well as Maharashtra
Rent Control Act, 1999. The suit has been filed against Court
Receiver who is appointed by virtue of above order.
11. The intervener, admittedly is one of the co-owner who
filed the application under Order 1 Rule 10 of CPC. The learned
judge of the trial court has held that presence of the intervener is
necessary being a co-owner of the suit premises and therefore he
directed the plaintiff to incorporate intervener as a party defendant
in the suit.
12. Now it has been well settled that the necessary party is
the party in the absence whom effective decree cannot be passed
and proper party means the person whose presence is necessary for
fair and effective adjudication of proceeding.
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13. In the present suit there is no dispute that Court
Receiver is a landlord within the meaning of Maharashtra Rent
Control Act for collection of rent as held by the Hon’ble Bombay
High Court in the case of
Aspi Rustomjee1. The question before us
is whether co-owner or the owner of the suit property are necessary
party in the suit filed by tenant for a declaration of tenancy right?
The Hon’ble High Court in partition suit allowed the Court Receiver
to institute or to prosecute the suit in the Small Causes Court for
the purpose of as more particularly mentioned in the above
referred order. However, there is no bar that the owner cannot
participate in the proceeding filed by tenant against the Court
Receiver in respect of suit premises. Therefore, we are in agreement
with a view taken by the learned judge of the trial court that the
intervener is necessary party and also proper party in the present
suit in view of Order 1 Rule 10 of CPC.
14. Considering the aforesaid discussion, we do not see
any illegality or irregularity in the impugned order. True that the
learned advocate for plaintiff and plaintiff were absent on the day
of passing of impugned order. However, a careful reading of the
order clearly indicates that the learned trial court has considered
the reply and passed the order on the basis of record. We do not
see that his absence, in any way was prejudiced to the plaintiff and
therefore it is not a ground to say that impugned order is illegal.
As the impugned order is correct, legal and proper and therefore
we do not think that interference in the revision is necessary.
Therefore,we answer point Nos. 1 to 3 accordingly.
1 (1983(1)All India Rent Control Journal 678)
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AS TO POINT NO.4:
15. In view of aforesaid findings, revision application is
fails. Considering the facts, we do not award the costs and hence
we answer point No.4 accordingly. In the result, we pass following
order.
O R D E R
1. Revision application is dismissed.
2. Parties to bearing their own costs.
3. Notify the order to the learned trial court.
I Agree,
(D. R. Mali) (A. A. Ayachit)
Judge Addl. Chief Judge,
C. R. No. 41 C.R. No. 41
I/c. C. R. No.31 I/c. C. R. No.31
17.06.2025 17.06.2025
Judgment dictated on : 17.06.2025
Judgment transcribed on : 17.06.2025
Judgment checked & signed on : 17.06.2025
/home/pa31/VARSHA/A. A. AAyachit/C. R. No.31/123-2024 Revision.odt
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