MR FIROZE ADI VAKIL Vs. MISS ZARENE FRAMROZ MUNSHI
LAWS(BOM)-2017-7-211
HIGH COURT OF BOMBAY
Decided on July 06,2017

Mr Firoze Adi Vakil Appellant
VERSUS
Miss Zarene Framroz Munshi Respondents

JUDGEMENT

B.P.COLABAWALLA,J. - (1.) By this Writ Petition filed under Article 227 of the Constitution of India, the Petitioner challenges the order dated 20th July, 2016 passed below Exh.53 in RAE and R Suit No. 744/1770 of 1992 as well as the order passed by the Revisional Authority dated 27th July, 2016 passed in Revision Application No.260 of 2015.
(2.) The Petitioner is the sole Defendant No.1B in RAE and R Suit No.744/1770 of 1992. The Respondent, as the sole surviving executirx of the last Will and Testament of the late Framroze Pestonji Munshi dated 20th August, 1984, is the Landlord (and the Plaintiff in the said RAE and R Suit No.744/1770 of 1992). The application below Exh.53 was filed by the Petitioner (Defendant No.1B) for dismissal of the said RAE and R Suit No.744/1770 of 1992 on the basis of some alleged admissions contained in the additional Written Statements filed by the Respondent in answer to a suit filed by one Ardeshir Framroze Vakil (for short "the said Ardeshir") being RAD Suit No.2447 of 1991. This application (Ex. 53) was filed under the provisions of Order 12, Rule 6 and Order 7, Rule 11 of the Code of Civil Procedure, 1908 (for short "the Civil Procedure Code"). To put it in a nutshell, it was the case of Defendant No.1B (the Petitioner herein) that in the additional Written Statements filed by the Respondent herein (the Plaintiff in RAE and R Suit No.744/1770 of 1992 and Defendant in RAD Suit No. 2447 of 1991), the landlord had expressly denied that Original Defendant No.1 in RAE and R Suit No.744/1770 of 1992 (the said Ardeshir, who is since deceased) was not the tenant of the Plaintiff. It was the case of Defendant No.1B (who is an heir of the said Ardeshir) that since this was a clear admission made by the Landlord in her additional Written Statements in answer to RAD Suit No.2447 of 1991 filed by the said Ardeshir, the Small Causes Court did not have jurisdiction to entertain RAE and R Suit No.744/1770 of 1992 filed by the Plaintiff - Landlord for eviction of the tenant.
(3.) The brief facts that need to be noted are that the Petitioner herein is the sole Defendant (Defendant No.1B) in RAE and R Suit No.744/1770 of 1992. He is the heir of original Defendant No.1 - the said Ardeshir. This suit is still pending before the Court of Small Causes at Mumbai. The Respondent herein is the sole surviving executrix of the last Will and the Testament of the late Framroze Pestonji Munshi dated 20th August, 1984, and who was the landlord of the residential premises being Flat No.7 on the third floor of the building known as "Forjett House", situate at Forjett Street, Gowalia Tank, Mumbai - 400 026 (for short the "suit premises"). For the sake of convenience, I shall refer the parties as they were arrayed before the Trial Court in RAE and R Suit No.744/1770 of 1992.;


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