A.K. Mathur, J. - (1.) 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.
(2.) Brief facts which are necessary for the disposal of this appeal are as under. The appellants filed a suit being R. A. E. Suit No. 371/3169 of 1976 for eviction against the original defendant, Rustom D. Kumar (now deceased). In the course of the proceedings, during the life time of original defendant, the respondent Fail Rustamji Kumar (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. Initially, the defendant Rustom D. Kumar, the father of the respondent was sole party defendant in the suit filed by the appellants/plaintiffs. That application was allowed and respondent was added as a party defendant No. 2 in that suit. 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. The original defendant i.e. Rustom D. Kumar filed a written statement on 5.11.1976. Therein he submitted that he was willing to submit to the orders of the Court. It was pointed out that his wife and son (the present respondent) are residing in the suit premises. The defendant No. 2 i.e. the present respondent filed a written statement on 5.4.1979 and contended 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"). On 30.9.1980 the appellants moved the Court for a decree on admission against the original defendant No. 1. On 20.6.1981 a decree came to be passed against the original defendant No. 1. The original defendant did not challenge the decree and it became final. Thereafter, the defendant No. 2 filed an appeal against the said order passed against defendant No. 1, the father of respondent He also filed suit for declaration of his tenancy right qua appellants. Meanwhile, the original defendant No. 1 expired on 3.10.1984. 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. In gift deed the fact of pending litigation was mentioned. Pursuant to the execution of the gift deed the respondent amended the appeal and contended that the appellants had ceased to be the landlord of the suit premises, hence the appellants could not maintain the suit against the respondent nor could they execute the decree of eviction passed against the original defendant No. 1. 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 court against the tenant was not legal. 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. 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 court. 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 context the High Court observed that undertaking be given by the appellants that they would not 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. The undertaking to this effect was given by the appellants. The High Court observed that the appellate Bench of the Small Causes Court ought not to have considered the appeal filed by the present respondent against the decree passed against the original defendant No. 1 as the suit was being proceeded against the defendant No. 2. In this background, the matter was sent back to the trial court. 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. Rule heard forthwith. It appears that on satisfaction of the existence of the ground for eviction for bonafide requirement of the landlord and on admission by original defendant No. 1 to that effect, a decree of eviction as against defendant No. 1 is passed by the trial court. He challenged the decree passed against defendant No. 1. The defendant No. 1 did not challenge the decree. The Appeal Court set-aside the decree passed against defendant No. 1 hence this petition by plaintiffs landlord. The only apprehension of defendant No. 2 is that if the decree against defendant No. 1 is executed he will have to obstruct it. That apprehension can be taken care of by recording the undertaking of the plaintiff that they shall not execute the decree obtained against defendant No. 1 till such time that the suit against defendant No. 2 and appeal, if any, are disposed of. The plaintiff-petitioner does give that undertaking before this court. Moreover, the Appellate Court ought not to have considered the defendant No. 2s appeal against decree passed against defendant No. 1, While the suit is yet to proceed against defendant No. 2. Hence impugned order of Appellate Court is quashed and set-aside. Trial Court to proceed with suit against defendant No. 2. Plaintiff shall not execute decree already passed against defendant No. 1, against No. 2 until disposal of the suit and appeal if any. With above directions, the Rule is made partly absolute."
(3.) 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. It was also pointed out that he was always ready and willing to pay the rent and he has been continuously paying the rent to the appellants and the same has been accepted by the appellants. Then another amendment was made by the respondent in 1990 to the written statement and it was contended that he was the only child to the original defendant No. 1 - his father, Rustom D. Kumar. The issues were framed in the suit. On 30.9.1994 the trial court decreed the suit in favour of the appellants. The trial court held that the respondent had failed to prove his tenancy right and as such he was a mere trespasser. Therefore, there was no need to render any finding on other issues. It was also held that the appellants have proved their bona fide requirement. It was further held that greater hardship would be caused to the appellants if the decree of eviction was not passed. The trial court 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. Relevant portion of order dated 29.9.1994 passed by the Trial Court in RAE Suit No. 571/3169 of 1978 reads as under: "In view of reasons which re-discussed above, I came to the conclusion that the defendant No. 2 has failed to prove that he has any independent tenancy right in the suit premises." ;