Dismissed

Thakurdas Parwani v. Ananthasubramaniam Jagadesan (Decd.)by Lrs.-Parvathi Jagadesan and Ors.

Bombay HC18 Oct 2004WP/8127/2004

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging the execution of a decree for possession of premises. The petitioner argued the earlier decree was a nullity due to lack of pecuniary jurisdiction in the original ejectment suit, but the court noted this issue was previously settled in earlier litigation involving the original tenant and affirmed by the Supreme Court. No independent right to the pre

What did the court decide?

Writ petition dismissed; time to vacate suit premises granted till 30th November 2004.

Thakurdas Parwani Vs Ananthasubramaniam Jagadesan… — Landlord and Tenant | Bombay HC (2004)

¶1

¶2

IN THE HIGH COURT OF JUDIATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

¶3

WRIT PETITION NO.8127 OF 2004

¶4

 Thakurdas Parwani .. Petitioner.
 Vs.

¶5

 Ananthasubramaniam Jagadesan
 (since deceased) through his
 heirs and legal representatives
 1a.Paravathi Jagadesan & Ors. .. Respondents.

¶6

 Mr.R.A.Thorat for the petitioner.
 Mr.E.K.Shashidaran for the respondents.

¶7

CORAM : D.B.BHOSALE, J.

¶8

DATED : 18TH OCTOBER, 2004

¶9

 P.C.:

¶10

 . Heard Mr.Thorat, learned counsel for the
 petitioner and Mr.Shashidaran, learned counsel for
 the respondents.

¶11

 2. The petitioner is an obstructionist. The

¶12

 present writ petition arises out of Obstructionist
 Notice No.17 of 2003. The obstructionist notice,
 taken out by the respondent-landlord, was made
 absolute and the obstruction raised by the
 petitioner to the execution of the decree was
 directed to be removed and the decree was directed
 to be executed by warrant of possession vide order
 dated 11.6.2004. That order was carried in appeal

¶13

¶14

 bearing Appeal No.483 of 2004 which came to be
 summarily dismissed by the appellate court vide
 order dated 12.8.2004. That order is being
 challenged in the instant petition.

¶15

 3. The main contention urged by Mr.Thorat,
 learned counsel for the petitioner is that the
 Small Causes Court had no jurisdiction to entertain
 the original ejectment application bearing
 No.57/324/E of 1966 against the petitioner’s father
 i.e. original tenant for possession of the suit
 premises under section 41 of Presidency Small
 Causes Court Act, 1882 (for short "Act of 1882").
 In support of his contention he invited my
 attention to the leave and licence agreement to
 show that the licensee was liable to pay sum of
 Rs.550/- as monthly compensation for the use and
 occupation of the premises in dispute and,
 therefore, according to Mr.Thorat the Small Causes
 Court had no pecuniary jurisdiction to entertain
 the ejectment application filed under section 41 of
 the Act of 1882. The question, therefore, raised
 by Mr.Thorat is that whether or not the decree
 being nullity for want of pecuniary jurisdiction is
 liable to be executed and the petitioner being in
 possession of the suit premises has right to

¶16

¶17

 obstruct the execution under Order 21 Rule 97 of

¶18

 the Civil Procedure Code. According to Mr.Thorat,
 the decree was nullity on the ground, as stated
 above. There is no dispute that a specific plea
 was raised in the ejectment application No.57/324/E
 of 1966 by the original tenant, father of the
 petitioner, and in view thereof an issue was framed
 as to "Whether this court (i.e. Small Causes
 Court) has pecuniary jurisdiction to try and
 entertain this application (i.e.ejectment
 application). That issue was answered in
 affirmative by the Small Causes Court in the
 judgment and order dated 19.3.1997. The matter was
 carried in appeal, thereafter in writ petition and
 further in S.L.P. by the tenant and the finding
 recorded on the said issue was affirmed. It is
 against this backdrop, in my opinion, it is not
 open for this court to entertain the very question
 as to whether ejectment application itself was
 maintainable for want of pecuniary jurisdiction,
 merely because the obstructionist, who was not
 party to the suit, has right to raise such question
 in this proceedings under order 21 Rule 97 of Civil
 Procedure Code. The answer to the said issue
 cannot be different from the one recorded in the
 earlier round of litigation and which was confirmed

¶19

¶20

 by the Apex Court. The decree in any case,

¶21

 therefore, cannot be held nullity. In view of the
 peculiar facts and circumstances of the case the
 judgment of this court relied on by Mr.Thorat in

¶22

Mani Nariman Daruwala since deceased by his heirs
Rusi Nariman Daruwala and Others Vs. Phiroz

¶23

N.Bhatena and Others 1991 Mh.L.J. 376 is of no

¶24

 avail to the petitioner. In so far as the second
 contention urged by Mr.Thorat that the appellate
 court, being the first Court of appeal ought to
 have admitted the appeal and allowed the petitioner
 to establish his independent right in the suit
 premises. Though the appellate court dismissed the

¶25

 appeal summarily at the stage of admission has
 recorded the reasons for dismissing the same. It
 is apparent that the petitioner failed to establish
 his independent right, title and interest in the
 suit premises. No case for interference under
 Article 227 of the Constitution in the impugned
 order is made out. The writ petition, therefore,
 fails and is dismissed as such. Mr.Thorat, learned
 counsel for the petitioner, at this stage prayed
 for stay to the execution till 30th November, 2004.
 Instead of granting stay to the execution, in my
 opinion, the ends of justice would be met if the
 time to vacate the suit premises is granted till

¶26

¶27

 30th November, 2004. Order accordingly.

¶28

(D.B.Bhosale, J.)

Thakurdas Parwani v. Ananthasubramaniam Jagadesan (Decd.)by Lrs.-Parvathi Jagadesan and Ors.

Case brief

What is this about?

What did the court decide?

Thakurdas Parwani v. Ananthasubramaniam Jagadesan (Decd.)by Lrs.-Parvathi Jagadesan and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Atur Apartments Co-Op. Hsg. Soci. and Ors. Vs Deputy Registrar Co-Op. Soci. and Ors.

Milind Gopal Babar and Ors. Vs Suvarna Ramesh Malpathak and Ors.

Lg Electronics India Pvt. Ltd. Vs Balasaheb Shankerrao Ganjave

Dr.Jagdish Narayan Thotangare Vs Grampanchayat Khanivali

Shivaji Ramchandra Deulkar Vs Harishchandra Dhondi Deulkar (Desd) Lrs.

Proposed Sanjay Patil Sahakari Dhudh Vyavasayik Sanstha Vs the State of Maharashtra and Ors.