Diksha Rane WP 4229-2001.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4229 OF 2001

1. RAMESH BHASKAR UTTURKAR (SINCE )

DECEASED) )

1a.Smt. Sunanda Ramesh Utturkar )

1b.Mr.s Aditi Anand Gadgil )

1c.Ms. Aparna Ramesh Utturkar )

2.ASHOK BHASKAR UTTURKAR (SINCE )

DECEASED) )

3.ANIL BHASKAR UTTURKAR )

4.SUBHASH BHASKAR UTTURKAR )

5.SMT. INDIRABAI BHASKAR UTTURKAR )

(SINCE DECEASED) )

6.MRS. PRATIBHA VINAYAK GOKHALE )..PETITIONERS

VS.

1.UNMESH TRIMBAK NARAVANE )

2.MS. RUJUTA TRIMBAK NARAVANE )..RESPONDENTS

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Dr. Virendra Tulzapurkar. Senior Counsel i/b. Adv. Y. s. Bhate, Adv.

Viraaj Y. Bhate for the petitioners.

Adv. Pradeep Thorat a/w. Adv. Drupad Patil, Adv. Hemang Raythatha,

Adv. Sunil Gangan, Adv. Swapnil Shikhare, Adv. Manav Chetwani i/b.

RMG Law Associates for the respondents.

------------

CORAM : RAJESH S. PATIL, J.

RESERVED ON : 22 APRIL 2026.

PRONOUNCED ON : 8 JUNE 2026

1 2026:BHC-AS:22851

Diksha Rane WP 4229-2001.doc

JUDGMENT :

1) The present Writ Petition filed under Article 227 of the

Constitution of India challenges the impugned judgment and decree

dated 6 February 2001, passed by the Appellate Bench of the Small

Causes Court, which allowed the appeal filed by the respondents

thereby reversing the judgment and decree passed by the trial Court.

FACTS:

2) The suit premises is a shop bearing No.250B, situated at

ground floor of Godavari Bhuvan, L.J. Road, Dadar (West), Mumbai –

400 208, admeasuring about 250 sq.ft. The petitioners are the tenant,

and the respondents are the landlords of the suit premises. For sake

of convenience, parties are referred to as tenants and landlords

hereinafter.

2.1) In the year 1944, tenancy was created in favour of the

petitioners’ father for monthly rent of Rs.30/-, and he was put into

possession. On payment of rent, receipts were issued from time to

time.

2.2) Since the landlord in the year 1956 was contesting for

the Assembly Election of State of Maharashtra, he required space for

opening office for election companion, and as the suit premises was

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situated on the front side of a prominent road, the landlord requested

the tenant to allow him to use the suit premises for a period of 3 to 4

months. As things materialized the landlord, by his letter dated 19

December 1956, addressed to tenant, confirmed that he was glad that

tenant had agreed to give the suit premises for a period of 3 to 4

months for landlord’s office for election purpose. And the premises

will be given back whenever the tenant requires, with 48 hours

notice.

2.3) In lieu thereof the tenant was permitted to occupy one

room in a residential flat in nearby building ‘Shivneri’, to

accommodate his servant and stock-in-trade.

2.4) As the time period concluded, and in spite of repeated

reminders, the landlord did not hand over the possession of the suit

premises, the tenant by written communication demanded back the

possession. Since the landlord did not adhere to the demand, the

tenant filed suit before the Bombay City Civil Court at Mumbai,

seeking possession. In the said suit, the landlord raised an objection

of jurisdiction of the Civil Court to try and entertain the suit. Based

on objections raised, after hearing the parties, the learned Judge of

Bombay City Civil Court, by his order dated 9 September 1998,

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returned the plaint to be filed before a proper forum.

2.5) Subsequently, the tenant approached the Small Causes

Court at Bombay, by adding new paragraphs to the plaint and sought

main prayer of possession of suit premises. The suit was numbered as

R.A.E. Suit No.4957 of 1982. The landlord contested the suit by filing

his written statement. Issues were thereafter framed and parties led

their evidence by stepping into witness box. The trial Court after

hearing the parties, by its judgment and decree dated 15 June 1998,

allowed the suit for possession.

2.6) Being aggrieved by judgment and decree passed by trial

Court of possession, the landlord preferred an appeal before the

Division Bench of the Small Causes Court at Bombay. After hearing

the Advocates of both the sides the Appellate Court by its judgment

and decree dated 6 February 2001, reversed the judgment and decree

passed by the trial Court, and allowed the appeal. Dissatisfied by the

judgment and decree passed by the appellate Court, the tenant has

challenged the Appellate Court’s judgment and decree by filing writ

petition under Article 227 of the Constitution of India.

SUBMISSIONS:

3) Dr. Tulzapurkar appeared on behalf of the petitioner-tenant,

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and made his submissions.

3.1) He first showed me the writing dated 19 December 1956

addressed by landlord to the tenant.

3.2) He submitted that even after executing the letter dated

19 December 1956, the petitioner-tenant continued to pay rent of the

suit premises and the landlord issued receipts to that effect.

3.3) The Appellate Court has erroneously recorded that

tenant has surrendered the tenancy, without there being any

document on record. There is no explanation as to why the landlord

did not record the alleged surrender in writing, when the landlord

was a Doctor by profession and a M.L.A.

3.4) The impugned judgment of Appellate Court is perverse

and the same requires to be set aside.

3.5) To buttress his submissions he relied upon the Full Bench

judgment of Bombay High Court delivered in Dattatraya Krishna

Jangam vs. Jairam Ganesh Gore

1

.

4) Mr. Pardeep Thorat appeared for the respondent and made

his submissions.

4.1) He submitted that the plaint was returned by the City

11964 SCC OnLine Bom 30.

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Civil Court on the ground that the City Civil Court had no

jurisdiction. After the matter went to the Small Causes Court, there

was no averment made as far as eviction is concerned. Neither there

is an averment of relationship of a licensor and licensee. All that was

done was three pages were added to the plaint, which was filed in

the City Civil Court.

4.2) For eviction under the Rent Act, there are grounds

specified u/s. 12 and section 13 of the old Bombay Rent Act. None of

those grounds are mentioned in the plaint. Therefore, the suit itself

was not maintainable before the Small Causes Court. Because of the

amendment to the 1959 to the Bombay Rent Act, the present

petitioner (original plaintiff) got protection as far as the room in

Shivneri is concerned. Both the parties had mutually agreed that the

plaintiff would vacate the premises being a shop premises situated in

Godavari building and will shift all his goods from the suit premises

at Godavari building, to the room in Shivneri building, which is very

close-by to the suit premises. So also, the relative of the plaintiff, one

Mr. Abhyankar, who was staying in the suit premises, shifted his

residence from the shop premises being the suit premises to Shivneri

premises.

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4.3) The receipts which have been shown in the present

proceedings, in fact, as per evidence of the plaintiff also, were

prepared by the plaintiff and the defendant was forced to sign the

same. The area of the suit premises and the premises of Shivneri,

measurements are almost the same. Hence, this Court should not

entertain the present petition.

4.4) Mr. Pradeep Thorat, learned counsel appeared for the

respondent, relied upon the following judgments :-

(a)Nagindas Ramdas vs. Dalpatram Ichharam

alias Brijram & ors.

2

;

(b)Cantonment Board and anr. vs. Church of

North India

3

;

(c)Jagmittar Sain Bhagat and ors. vs. Director,

Health Services, Haryana and ors.

4

;

(d)Balvant N. Viswamitra and ors. vs. Yadav

Sadashiv Mule (dead) thr. LRs. and ors.

5

5) In the rejoinder, Dr. Tulzapurkar submitted that even if you

presume the argument of Mr. Thorat about the suit actually being

between the licensor and licensee, as per the case of the plaintiff,

even then, the jurisdiction would have been to the Small Causes

2(1974) 1 SCC 242

3(2012) 12 SCC 573

4(2013) 10 SCC 136

5(2004) 8 SCC 706.

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Court. Therefore, it does not make much difference if the suit is

between landlord and tenant or else between a licensor and licensee.

The jurisdiction will lie with the same Court, that is the Small Causes

Court. He submitted that his client is ready and willing to hand over

the premises, being a room in Shivneri building, but his shop-suit

premises at Godavari building, should be handed over back to him.

6) I have heard counsel of both the sides and with their help I

have gone through the documents on record.

CONCLUSION

7) Based on a writing dated 19 December 1956, the suit

premises was given by the tenant to the landlord for the purpose of

his office for election campaign. The said writing is on record and has

been admitted by both parties and has been duly exhibited. The

writing dated 19 December 1956, reads as under:

Date:

19th December 1956.

Dear Shri Utturkar,

In pursuance of the Talk I had with you I am glad that you have

agreed to give me for use of my election office for a period of 3 - 4

months. The Shop in 250 B L. J. Road which you are occupying as my

tenant I shall give the place in your charge whenever you require with

48 hours notice.

Yours Sincerely

Sd/-

(Dr. T.R. Naravane)

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The only case which is raised by the landlord is that, in lieu of the

suit premises, which is a shop, he had given one bed-room from a

residential premises, on a second floor in a nearby building. However,

on record there is no such document, neither it is the case of the

landlord that there is any written document to that effect.

7.1) In the present proceeding, there is no such document on

record to suggest that there was surrender of tenancy. In the suit filed

by the tenant for return of possession, the trial Court had decreed the

suit of the tenant, however, the Appellate Court has reversed the

decree on the ground that there was a surrender of tenancy.

According to me, this finding of Appellate Court itself is perverse, as

the tenant has disputed the said fact and there is no document on

record to suggest surrender of tenancy. So also, it would be pertinent

to note that once according to the landlord, the tenancy was

surrendered then there was no question of tenant paying the rent and

landlord issuing receipt to that effect. The said event continued three

years after the tenancy according to the landlord was surrendered. It

is pertinent to note that the landlord was, at the relevant time, a

Minister in the State Assembly of Maharashtra Government and the

suit premises was given to him for his election campaign being a

ground floor shop premises. One has to understand the frame of

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mind of the tenant when he is facing a landlord a politician who

ultimately became a Minister in the State Government. According to

the tenant only for a limited time, he was permitted to use one bed-

room of a residential premises on second floor to store his goods,

from the suit premises to that premises. Part of his goods remained in

the suit premises.

7.2) Admittedly, there are rent receipts even after there was

shifting of the premises by the tenant till the year 1959 and

thereafter, even though the rent was paid as per the tenant’s case,

receipts were not given.

7.3) The case of the landlord that after the shifting was done

in the year 1956 till the year 1959, roughly around three years, the

rent which was paid by the tenant was not that for the Godavari

premises being a shop premises, but was for Shivneri premises being

a residential room. I don't agree with this view simply because the

landlord is not a rustic villager who does not understand or does not

know to read and write. He is a well-educated and a doctor by

profession who turned into a politician and then became Minister in

the State Assembly of Maharashtra. He has signed all the receipts

before and after 1956, which mentions about the suit premises being

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a shop premises at Godavari building. Therefore, admittedly, even

though there was a shifting, rent was collected for the suit premises

of Godavari. Therefore, there is no doubt there is a relationship of a

landlord and tenant between the parties. And if there is a relationship

of a landlord and tenant, then the only Court which will have

jurisdiction to decide the issue of possession would be the Small

Causes Court.

7.4) If a tenant for some reason has been compelled by the

landlord to vacate the suit premises temporarily for a few months,

since the landlord needed the said premises for his political

campaign, that will not mean that after the said period is concluded,

the landlord will not hand over back the possession, and if that has

happened, the only course of action for the tenant would be to

approach the Small Causes Court because the relationship as far as

the tenanted premises is concerned would always be of a landlord

and tenant. However, for whatever advise the tenant received at the

relevant time, the tenant first approached the civil court being the

Bombay City Civil Court at Bombay. As the suit was pending before

the Civil Court, an objection as regard to the jurisdiction of the court

was raised by the landlord after around 10 or 11 years. Based on the

submission of the landlord that the Bombay City Civil Court does not

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have jurisdiction, the Bombay City Civil Court by its order dated 9

September 1981, returned the plaint to be filed before the Small

Causes Court. Being aggrieved by passing of the said order by the

Bombay City Civil Court, the tenant filed an Appeal from Order

before this court being A.O. No. 8 of 1982. The said Appeal from

Order was dismissed by an order dated 18 January 1982.

7.5) As the order passed by the Bombay City Civil Court was

confirmed by High court, the tenant approached the Small Causes

Court wherein he added three more pages to its original plaint which

was filed before the Bombay City Civil Court. There is no doubt at

least at two places there is a mention of the word ‘licensee’ in the said

plaint. However, in the paras with reference to the jurisdiction of the

court, there is no reference of licensor and licensee and very

specifically it has been mentioned that the suit for eviction is u/s 28

of the Bombay Rent Act. The said section 28 deals with entertaining

any suit between landlord and tenant, relating to the recovery of rent

or possession of premises. In my view, the language of Section 28 of

the Bombay Rent Act is wide enough to cover even a suit for re-

possession filed by tenant.

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7.6) The Bombay Rent Act 1947, is a beneficial legislature

enacted to protect tenants. There are around 14 grounds as

mentioned in Section 12 and 13, by which the landlord may recover

possession. For the controversy involved in the present proceeding

one needs to look into two grounds as mentioned in Section 13, i.e.

13(1)(h) and 13(1)(hh), which read as under:

13(1)(h)that the premises are reasonably and bona fide

required by the landlord for carrying out repairs which cannot

be carried out without the premises being vacated;

13(1)(hh)that the premises consist of not more than two

floors and are reasonably and bona fide required by the

landlord for the immediate purpose of demolishing them and

such demolition is to be made for the purpose of erecting new

building on the premises sought to be demolished; or]

(Emphasis supplied)

Under Section 13 (3A) and (3B), the landlord at the time

of institution of suit on the ground of 13(1)(hh), has to produce a

certificate granted by the Tribunal and also has to give an

undertaking that the new building to be erected is as per rules and

regulations and the eviction work will be completed within 15

months. The Tribunal will give certificate that the plans and estimates

for the new building have been properly prepared, the necessary

funds for erection of new building are available with the landlord.

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In my view if a decree is passed in favour of landlord

under Section 13(1)(h) or 13(1)(hh), and the tenant vacates the

premises, after the new building is erected, the tenant needs to be

given back the same area, which was in his possession as tenant

earlier. If the possession is not given back to him, he has no

alternative but to file suit under Section 28 of the Bombay Rent Act

(Section 33 of the Maharashtra Rent Act, 1999) to get back

possession of tenanted premises.

7.7) In the judgment of Narhari Kanda (supra), I have taken a

view that the only way a possession is lost by the tenant is by a

decree passed by this court or else by surrender of tenancy. No doubt

in the present proceedings, it is nobody's case that the decree of

eviction has been passed against the tenant. The ratio of this

judgment is applicable to the present proceeding.

7.8) As far as the surrender of tenancy is concerned, in the

present proceeding, there is no such agreement which is brought on

record, neither it is anybody's case that there was an written

agreement for surrender of tenancy. If both these grounds are not

there, then the tenancy always remains and the tenant can't be told

to part with his possession and that the possession will not be handed

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over back to him by the landlord. One can't forget that the present

landlord was a Minister in the State Government of Maharashtra and

the suit premises temporarily taken by him was for his election

campaign. From the date he has taken possession from the tenant, it

is almost more than now 50 years and even today on a suggestion put

up by this Court, he is not ready to hand over back the possession to

the tenant against whom there is no eviction decree.

7.9) The case of the landlord that there was swapping of the

premises thereby the tenant handed over the suit premises being a

shop premises on the main road of one of the busiest road of Mumbai

city to a one room in a second floor premises is hard to believe, apart

from the fact that nobody would surrender a shop premises for one

room from a flat on a second floor from main road to an interior

road. It is nobody's case that any consideration was paid for the

same. The letter dated 19 December 1956, requesting to shift does

not mention about the one room premises and anything about

swapping the premises. The said letter admittedly was written by the

landlord to the tenant and not by the tenant to the landlord. Even

after that said period of four months was over, rent has been accepted

admittedly at least for three years because the rent receipt has been

issued to that effect.

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7.10) Therefore, according to me, the suit was appropriately

filed before the Small Causes Court by the tenant who was seeking

for repossession of his premises and except the Small Causes Court,

he does not have any other Court to approach, and in any case he did

first approach the Bombay City Civil Court but the Civil Court

directed him to approach the Small Causes Court and that order was

confirmed by the High court.

7.11) It is also to be noted that after the writ petition was filed

before this court which is pending for last more than 25 years, ad-

interim relief was granted in the favour of the tenant-petitioner, that

the landlord should not create any third party interest in the said

premises. As far as the issue about Small Causes Court having

jurisdiction even for a licensor or licensee suit like it has for a

landlord and tenant is concerned, there is no doubt about it, for both

the proceeding one has to approach the Small Causes Court only.

7.12) In Nagindas Ramdas (supra), the Supreme Court was

dealing with facts where suit for eviction was filed by landlord. In the

said suit the parties entered into compromise. However, the tenant

did not comply with the terms of compromise deed and raised an

objection before the Executing Court that the decree has been passed

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by the Court without satisfied itself as to the existence of a ground of

eviction under the Rent Act. The objections were rejected. The ratio

laid down in this judgment does not apply to the facts of present

proceedings.

7.13) On behalf of landlord on the point of raising the issue of

jurisdiction of Courts, three judgments were referred. In Cantonment

Board (supra), the Supreme Court has dealing with Public Premises

Act, when it held that inherent lack of jurisdiction is basic and

fundamental which can be challenged at any stage. The judgment of

the Supreme Court in Jagmittar Sain Bhagat (supra) was under the

Consumer Protection Act, which held that jurisdiction of

Courts/Forums cannot be conferred by consent of parties or

acquiescence or waiver. In Balvant N. Viswamitra (supra), the

Supreme Court held that a void decree can be challenged at any

stage, even in execution. There is no doubt on the proposition of law

laid down in these three judgments.

7.14) Full Bench of this Court in Dattatraya Krishna Jangam

(supra) held that Bombay City Civil Court does not have jurisdiction

to entertain suits for declaration of sub-tenancy or tenancy and

injunction restraining eviction or interference with possession where

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the claim arises under the Bombay Rent Control Act 1947. The law

laid down by Full Bench is squarely applicable to the present

proceedings.

8) In view of the findings recorded by me in the earlier

paragraphs, the “Rule” is made absolute in terms of prayer clause (a).

8.1) The impugned judgment and order passed by the

Appellate Court on 6 February 2001 in Appeal No.498/1998 is hereby

quashed and set aside, and the impugned judgment and order passed

by the trial Court dated 15 June 1998 in R.A.E. Suit No.4957/1982

stands confirmed.

8.2) The respondent should hand over possession of the suit

premises to the tenant within a period of eight weeks from today.

(Rajesh S. Patil, J.)

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