Megha 4_cra_136_2026_fc.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.136 OF 2026

Ratnadeep Shankar Narkar ...Applicant

V/s.

M/s. Ish Homes Private Limited and

Ors. ...Respondents

________________

Mr. Pradeep Thorat i/b. Mr. Tanvir Shaikh for the Applicant.

Mr. Vishal Kanade i/b. Mr. Javed Akhtar Khan for the Respondents.

________________

CORAM: SANDEEP V. MARNE, J.

Reserved on: 20 APRIL 2026.

Pronounced on: 4 MAY 2026.

Judgment:

1) The Applicant has filed the present Revision Application

challenging the judgment and decree dated 22 January 2026 passed by

the Appellate Bench of the Small Causes Court dismissing Appeal No.302

of 2019 and confirming the decree of the Trial Court dated 6 July 2019

passed in R.A.E. & R. Suit No.643/1132 of 2008. The Trial Court had

decreed the Suit filed by Respondent No.1-Plaintiff on the grounds of

unlawful subletting and default in payment of rent. The Trial Court has

directed Applicant/Defendant No.2 to handover possession of the suit

properties to the Plaintiff with further direction for payment of arrears

of rent as well as enquiry into mesne profits.

Page No. 1 of 25

4 May 2026 2026:BHC-AS:21060

Megha 4_cra_136_2026_fc.odt

2)Room No. R/4, House No.411/Back, Ground floor, Kadri Mansion,

Veer Savarkar Marg, Prabhadevi, Mumbai- 400 025 is the ‘suit premises’.

Building-Kadri Mansion was owned by the earlier owners, who had

apparently inducted late Mr. Ballaram Hullaji as monthly tenant in

respect of the suit premises. Respondent No.1 /Plaintiff acquired

ownership in respect of the land and the building Kadri Mansion vide

four Deeds of Conveyance dated 30 September 2006 and 10 October

2006. After acquiring ownership in respect of the building, the Plaintiff

found Defendant No.2-Mr. Ratnadeep Shankar Narkar to be in possession

of the suit premises in which late Mr. Ballaram Hullaji was the tenant.

Plaintiff alleged that Defendant No.2 was inducted as unlawful sublettee

in respect of the suit premises. An allegation of default in payment of

rent was also raised. The Plaintiff also demanded arrears of rent vide

Notice dated 24 February 2007. After failure on behalf of the Defendants

to pay the rent, Plaintiff instituted R.A.E. & R. Suit No.643/1132 of 2008

in the Court of Small Causes impleading ‘heirs and legal representatives’

of late Ballaram Hullaji as Defendant No.1 and Mr. Ratnadeep Shankar

Narkar as Defendant No.2(Applicant). Later, the Plaint was amended by

impleading the legal heirs of Defendant No.1. However, it appears that

heirs of Defendant No.1 did not appear in the Suit nor filed written

statement. The Applicant filed written statement resisting the Suit

stating inter alia that Defendant No.1 had assigned and transferred

tenancy rights in the suit property in November-1995 with the consent of

erstwhile owners. However, on account of disputes between the owner

and on account of appointment of Court Receiver, transfer of the tenancy

rights could not be documented. That the rent in respect of the suit

property was always paid by Defendant No.2. That even after receipt of

Page No. 2 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

notice dated 24 February 2007, the alleged arrears of rent were paid by

Defendant No.2.

3)Based on the pleadings, the Trial Court framed issues relating to

unalwful subletting, default in payment of rent and cause of wastage to

the suit premises. The parties led evidence in support of their respective

claims. The Plaintiff examined its directors and relied on several

documents. Defendant No.2 examined himself and also relied on several

documents. After considering the pleadings, documentary and oral

evidence, the Trial Court proceeded to decree the Suit by accepting the

grounds of unlawful subletting and default in payment of rent.

4)The Applicant/Defendant No.2 filed Appeal No.302 of 2019 before

the Appellate Bench of the Small Causes Court. In his Appeal, the

Applicant/ Defendant No.2 filed Applications at Exhibits-22, 23 and 71

for producing additional evidence and documents under Order XLI Rule

27 of the Code of Civil Procedure, 1908 (the Code). The Applicant also

filed Application at Exhibit-72 seeking permission for filing additional

compilation of documents of the Trial Court. He also filed Application at

Exhibit-67 for framing issue on the point of limitation. The Appeal was

heard by the Appellate Bench and during the course of hearing of the

Appeal, it appears that Application at Exhibit-71 for production of

additional evidence was rejected vide order dated 22 January 2026.

Similarly, the Application at Exhibit-72 for filing of additional

compilation of the documents before the Trial Court was also rejected by

separate order dated 22 January 2026. The Application at Exhibit-67 for

framing additional issue of limitation was partly allowed by order dated

22 January 2026 and additional issue relating to limitation was framed.

Page No. 3 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

On 22 January 2026 the Appellate Court proceeded to dismiss the Appeal

No.302 of 2019 preferred by the Applicant by answering the issue of

limitation in affirmative, in favour of the Plaintiff and against the

Applicant. The Appellate Court also rejected the ground of default in

payment of rent. The Appellate Court however, accepted the ground of

unlawful subletting and accordingly upheld the decree of eviction passed

by the Trial Court. Aggrieved by the decree passed by the Appellate

Court, the Applicant has filed the present Revision Application.

5)Mr. Thorat, the learned counsel appearing for the Applicant

submits that the Appellate Court has erred in not deciding Applications

at Exhibits-22 and 23 for production of additional evidence under Order

XLI Rule 27 of the Code. That the Applicant had filed three Applications

for production of additional evidence being Exhibits-22, 23 and 71.

However, only one Application at Exhibit-71 is considered and rejected

by the Appellate Court and that there is no decision on Applications at

Exhibits-22 and 23. That therefore, the entire Appeal deserves to be

remanded for fresh decision on account of non-consideration of

Applications at Exhibits-22 and 23. He relies on judgment of the Apex

Court in Jatinder Singh and Another V/s. Mehar Singh and Others

1

and

Malayalam Plantations Limited V/s. State of Kerala and Another

2

.

6)Mr. Thorat further submits that the Appellate Court has erred in

not granting opportunity to the Applicant to lead evidence on additional

issue of limitation. That the additional issue relating to limitation was

framed while deciding the Appeal and the said issue is answered in the

affirmative without even granting any opportunity to the Applicant to

1(2009) 17 SCC 465

2(2010) 13 SCC 487

Page No. 4 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

lead evidence in respect of the additional issue. He relies on provisions of

Order XLI Rule 25 of the Code in support of his contention that it was

incumbent for the Appellate Court to refer the matter to the Trial Court

for taking additional evidence. That, therefore, the decree of the

Appellate Court is in violation of provisions of Order XLI Rule 25 of the

Code.

7)Mr. Thorat further submits that the Trial and the Appellate Courts

have erroneously accepted the ground of unlawful subletting ignoring

the position that the Suit was barred by limitation. He submits that the

Applicant is inducted in the suit premises in November-1995 and that

therefore the Suit filed alleging unlawful subletting on 27 May 2008 was

clearly barred by limitation. He submits that in Bakul Nandlal Gandhi

V/s. Mrs. Smita Pradip Bhatia

3

, this Court has held that Suit for eviction

under Article 66 of the Limitation Act, 1963 needs to be filed within a

period of 12 years from the act of unlawful subletting. He also relies on

judgment of this Court in Taherbhai T. Poonawala & Ors. V/s. Hamid H.

Patel (deceased by LRs) and Ors.

4

and of Supreme Court in Shakuntala S.

Tiwari V/s. Hemchand M. Singhania

5

, Ganpat Ram Sharma and Others

V/s. Gayatri Devi

6

. He therefore submits that Plaintiff’s Suit ought to

have been dismissed by the Appellate Court after framing the issue of

limitation.

8)Mr. Thorat further submits that the Applicant /Defendant No.2 was

erroneously branded as unlawful sub-tenant ignoring the position that

his name figures in the list of tenants appended to Deeds of Conveyance

3Civil Revision Application No.232 of 2017 decided on 27 January 2026

4AIR 2007 Bombay 80

51987 (2) Bom.C.R. 480

6(1987) 3 SCC 576

Page No. 5 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

executed in favour of the Plaintiff. That tenancy rights have been

transferred by Defendant No.1 with the consent of the earlier landlords.

That on account of pendency of disputes between the earlier owners and

the building was custodia legis, the owners were not able to record

transfer of tenancy. That therefore there is no element of subletting in

the present case.

9)Lastly, Mr. Thorat submits that the Suit was instituted against

Defendant No.1, who was a dead person in the year 1986. That the Suit

filed against a dead person is not maintainable and ought to have been

dismissed. On the above broad submissions, Mr. Thorat prays for setting

aside the impugned decree of eviction.

10)Mr. Kanade, the learned counsel appearing for Respondent

No.1/Plaintiff opposes the Revision Application submitting that

concurrent findings of fact are recorded in respect of ground of unlawful

subletting by the Trial and the Appellate Courts. That the Applicant

flooded the Appellate Court with as many as five applications and chose

to argue only three out of those 5 applications. That two Applications for

production of additional evidence were not argued before the Appellate

Court. That the Application at Exhibit-71 for production of additional

evidence has been decided by the Appellate Court. That if the Applicant

tucks in numerous applications and does not the press the same at the

time of hearing of the appeal, decree passed in the appeal cannot be

sought to be faulted. That even otherwise, Applications at Exhibits 22

and 23 were completely misplaced and were filed only for delaying the

proceedings. On the issue of limitation with regard to ground of unlawful

subletting, he submits that the Appellate Court has rightly relied upon

Page No. 6 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

judgment of this Court in Shree Durga Trading Co. V/s. Ateeq Anwar

Agboatwal and anr.

7

He distinguishes the judgment relied upon by Mr.

Thorat in Bakul Nandlal Gandhi (supra) submitting that the judgment is

rendered without noticing the ratio of the judgment in Shree Durga

Trading Co.. He submits that that rest of the judgments relied upon by

Applicant are already considered by this Court in Shree Durga Trading

Co.

11)Mr. Kanade further submits that the list appended to the

Conveyance Deeds contains names not only of ‘tenants’ but also of

‘occupants’. That this issue is no more res integra and covered by

decisions of this Court in Ambavi Raghu Patel and Anr. V/s. M/s. Isha

Homes Pvt. Ltd. and Anr.

8

and Pradeep Dattatray Gandhi V/s. M/s. Ish

Homes Private Ltd. and Anr.

9

12)So far as the ground for Suit being filed against a dead person is

concerned, Mr. Kanade submits that legal heirs were brought on record

and Suit did not continue against a dead person. He would accordingly

pray for dismissal of the Application.

13)Rival contentions raised on behalf of the parties, now fall for my

consideration.

14)The Suit was filed for eviction of the head tenant (Defendant No. 1)

and the inductee (Defendant No. 2) essentially raising three grounds of

(i) unlawful subletting, (ii) default in payment of rent and (iii) causing

7SCC OnLine Bom 3065

8Civil Revision Application No.65 of 2023, decided on 9 September 2024.

9Civil Revision Application No.79 of 2023, decided on 9 September 2024

Page No. 7 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

wastage to the suit premises. The Trial Court accepted the grounds of

unlawful subletting and default in payment of rent and rejected the third

ground of causing wastage to the suit premises. The Appellate Court has

rejected the ground of default in payment of rent and has upheld the

decree on the solitary ground of unlawful subletting. Thus, qua the

ground of unlawful subletting, there are concurrent findings recorded by

the Trial and the Appellate Courts.

15)Applicant’s main attack on the decree before me is the failure on

the part of the Appellate Court to decide the Applications at Exhibits 22

and 23 for production of additional evidence. As observed above, the

Applicant went on flooding the Appellate Court with numerous

applications. It filed as many as five Applications in the Appellate Court,

four out of which were for production of additional evidence/material.

Three Applications were filed for production of additional evidence, and

the fourth application was also filed for production of additional material

in the form of documents of the Trial Court. The fifth Application was

filed for framing of additional issues. Three out of those five Applications

have been decided by the Appellate Court. The Application for

production of additional evidence at Exhibit-71 has been rejected while

hearing the Appeal on 22 January 2026. Application at Exhibit-72 for

production of three documents is also rejected while hearing the Appeal

on 22 January 2026. However, the application (Exhibit-67) for framing

additional issue relating to limitation has been partly allowed by order

dated 22 January 2026 and the Appellate Court proceeded to frame

additional issue relating to limitation.

Page No. 8 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

16)Applicant complains that his two applications at Exhibits 22 and

23 have not been decided by the Appellate Court and that therefore the

Appeal must be remanded to the Appellate Court for fresh decision.

17)This Court does not appreciate the conduct of the Applicant in

swamping the Appellate Court with as many as five applications, four out

of which were filed for the same purpose of production of additional

material /evidence. If any vital piece of evidence was needed to be

produced before the Appellate Court under Order XLI Rule 27 of the

Code, the entirety of such evidence ought to have been produced by

filing a single application. However instead of doing so, the Applicant

deliberately filed four applications for same purpose and is now

complaining that since there is no decision on two out of those four

applications, the Appeal must be remanded for fresh decision. I have

little doubt in my mind that filing of four separate applications before

the Appellate Court by the Applicant was aimed at delaying decision of

the Appeal and also for creating a possible ground for seeking remand of

the Appeal. The conclusion is reached after considering the manner in

which the four applications were filed, which is discussed in the

paragraph to follow.

18)I now proceed to examine the purpose for which the four

Applications were filed by the Applicant:

(i)The first Application dated 23 December 2021 at Exhibit 22 was

filed under Order XLI of Rule 27(1) of the code, by which the

Applicant desired to produce certified copy of the cross-

Page No. 9 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

examination of witness in R.A.E. & R. Suit No.637 of 2007

conducted on 27 June 2019. Thus, evidence led by the Plaintiff

in an altogether different Suit was sought to be relied upon by

the Applicant directly at the appellate stage. Upon being

queried, Mr. Thorat submits that the application was filed to

rely upon admissions given by the Plaintiff’s witness to the

effect that the list appended to Deeds of Conveyance contained

names of ‘tenants’.

(ii) In quick succession and after passage of just 13 days, the

Applicant filed second application on 6 January 2022 at Exhibit-

23 under Order XLI, sub-rule 1(aa) and (b) of Rule 27 of the

Code for production of affidavit dated 9 November 1995

allegedly relating to assignment of tenancy in Applicant’s

name, copies of alleged rent receipts issued by the Court

Receiver, copies of electricity bill, copy of ration card, copies of

telephone bills and copy of emails relating to alleged

negotiations for settlement of Suit with the Plaintiff and ID

card issued by Election Commission of India.

(iii) On 27 November 2025, the Applicant filed third application at

Exhibit-71 for production of additional evidence seeking to

produce death certificate of Defendant No.1 and receipts

showing transfer of electricity meter.

(iv) The Applicant also filed fourth Application at Exhibit-72 for

production of copy of application for amendment of Plaint filed

by the Plaintiff, report of the Court Receiver dated 5 August

1991 and copy of order passed by the Appellate Bench

upholding the Trial Court’s order rejecting amendment.

Page No. 10 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

This is how the Applicant went on a spree and filed as many as 4

applications for the same purpose of production of additional

evidence/material.

19) The Appellate Bench has dealt with and has rejected Applications

at Exhibits-71 and 72, which were apparently filed close to the date of

hearing of the Appeal. It is the contention of Respondent No.1-Plaintiff

that the Applicant never pressed the Applications at Exhibits-22 and 23

at the time of hearing of the Appeal and the said Applications remained

unnoticed by not only the Court but also by the parties. The Applicant

disputes this position and contends that in the written submissions,

attention of the Appellate Court was invited to Applications at Exhibits

22 and 23 also.

20) In my view, criticism on the Appellate Court by the Applicant for

not deciding Applications at Exhibits- 22 and 23 is wholly unjustified.

The Applicant must blame himself for non-decision of Applications at

Exhibits 22 and 23. As observed above, all the four applications were filed

for the same purpose of production of additional documents and

evidence. Production of additional evidence before the Appellate Court

is a special and exceptional opportunity recognized under Order XLI Rule

27 of the Code and the same cannot be resorted to routinely or as a

matter of right. The Appellate Court is expected to decide the Appeal by

marshaling and reappreciating the evidence on record before the Trial

Court. Ordinarily, it is not expected to judge findings of the Trial Court

by relying on new material. Order XLI Rule 27 of the Code essentially

opens with a caveat that the parties to an appeal shall not be entitled to

produce additional evidence in the Appellate Court. However certain

Page No. 11 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

exceptional circumstances are recognised under which it is permissible

for the Appellate Court to take into consideration additional evidence

not produced before the Trial Court. Order XLI Rule 27 provides thus:

27. Production of additional evidence in Appellate Court.—

(1) The parties to an appeal shall not be entitled to produce additional

evidence, whether oral or documentary, in the Appellate Court. But if —

(a) the Court from whose decree the appeal is preferred has refused to

admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was not

within his knowledge or could not, after the exercise of due diligence,

be produced by him at the time when the decree appealed against was

passed, or

(b) the Appellate Court requires any document to be produced or any

witness to be examined to enable it to pronounce judgment, or for any

other substantial cause, the Appellate Court may allow such evidence

or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate

Court, the Court shall record the reason for its admission.

21)Thus, only in a case where one out of the three eventualities exist,

the Appellate Court can permit leading of additional evidence. The three

exceptional circumstances are where (i) the Trial Court has refused to

admit evidence which ought to have been admitted, (ii) additional

evidence was not in the knowledge of the parties and (iii) where the

Appellate Court requires any document to be produced or witness to be

examined for pronouncement of judgment or for any other substantial

cause. Such exceptional opportunity cannot be permitted to be exercised

causally by filing four applications. There has to be some seriousness

when additional evidence is sought to be produced directly before the

Appellate Court. When the Appellant believes that a vital piece of

Page No. 12 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

evidence has remained to be produced before the Trial Court and that the

same must be shown to the Appellate Court, he/she must gather all the

material (additional evidence), which existed when Trial Court decided

the suit and file the same at one go. The liberty to file application under

order XLI Rule 27 cannot be misused by filing multiple applications as

different intervals by seeking to produce more and more material as the

Applicant grows wiser with passage of each day.

22) In the present case, the Applicant has clearly misused the liberty

available under Order XLI Rule 27 of the Code by filing four applications

for the same purpose and now complains that the Appeal must be

reheard because two out of those four applications, which remained

tucked in the records of the Appellate Court, remained unnoticed and

undecided.

23) While deciding Applications at Exhibits 71 and 72, the Appellate

Court has recorded a finding that ingredients of Order XLI Rule 27(1) (a)

(aa) or (b) are not satisfied in the present case. If Applications at

Exhibits-22 and 23 were to be pressed by the Applicant before the

Appellate Court, I am sure similar findings would have been recorded by

the Appellate Court. All the extra material that was sought to be

produced by the Applicant directly before the Appellate Court was within

his knowledge and most of the documents were in his custody. It is not

the case that those documents were not in his knowledge or custody. The

Applicant flooded the records of the Appellate Court with numerous

applications and the two applications at Exhibits-22 and 23, slipped in

the records, went unnoticed by the Appellate Court. The Plaintiff

complains that the Applicant deliberately did not press Applications at

Page No. 13 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

Exhibits-22 and 23 for the purpose of creating a ground before this Court

for seeking remand on proceedings by the Appellate Court.

24) The Applicant cannot be permitted to take benefit of his own

wrong for the purpose of seeking remand of the proceedings. The

Applicant abused the process of law by filing as many as four

Applications for leading of additional evidence. This Court cannot come

to the assistance of such a litigant by becoming party to his dishonest

plan of dragging the eviction proceedings. The Suit was filed in the year

2008 and by now period of 18 long years has elapsed. Remanding the

proceedings at this stage before the Appellate Court for completing the

formality of deciding Applications at Exhibits-22 and 23 would only

delay eviction of the Applicant from the suit premises. Pendency of

proceedings has already enabled the Applicant to use the premises for 18

long years. Unlawful subletting to the Applicant is writ large on the face

of the record, which is discussed in the latter part of the judgment.

25) Reliance by Mr. Thorat on judgment of this Apex Court in

Malayalam Plantations Limited (supra) is inapposite. In case before the

Apex Court, the State Government had filed application in its Appeal for

production of additional documents to demonstrate that the said

documents would have rejected the entire claim of Malayalam

Plantations Limited. While emphasizing the duty of the Appellate Court

to decide Application under Order XLI Rule 27 of the Code, in paragraph

17 of the judgment, the Apex Court has also highlighted the position that

additional evidence cannot be for filling up the lacunae in evidence and

the production of additional evidence must be in the interest of justice.

The Apex Court held in paragraphs 15 to 17 as under:-

Page No. 14 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

15) In view of the above provision, in our opinion, when an

application for reception of additional evidence under Order 41 Rule

27 of CPC was filed by the parties, it was the duty of the High Court to

deal with the same on merits. The above principle has been reiterated

by this Court in Jatinder Singh & Anr. Vs. Mehar Singh & Ors. AIR

2009 SC 354 and Shyam Gopal Bindal and Others vs. Land Acquisition

Officer and Another, (2010) 2 SCC 316.

16) If any petition is filed under Order 41 Rule 27 in an appeal, it is

incumbent on the part of the appellate Court to consider at the time

of hearing the appeal on merits so as to find out whether the

documents or evidence sought to be adduced have any

relevance/bearing in the issues involved. It is trite to observe that

under Order 41, Rule 27, additional evidence could be adduced in one

of the three situations, namely, (a) whether the trial Court has

illegally refused the evidence although it ought to have been

permitted; (b) whether the evidence sought to be adduced by the

party was not available to it despite the exercise of due diligence; (c)

whether additional evidence was necessary in order to enable the

Appellate Court to pronounce the judgment or any other substantial

cause of similar nature.

17) It is equally well-settled that additional evidence cannot be

permitted to be adduced so as to fill in the lacunae or to patch up the

weak points in the case. Adducing additional evidence is in the

interest of justice. Evidence relating to subsequent happening or

events which are relevant for disposal of the appeal, however, it is not

open to any party, at the stage of appeal, to make fresh allegations

and call upon the other side to admit or deny the same. Any such

attempt is contrary to the requirements of Order 41 Rule 27 of CPC.

Additional evidence cannot be permitted at the Appellate stage in

order to enable other party to remove certain lacunae present in that

case.

26) In the present case, the question is whether Applications at

Exhibits-22 and 23 were filed by the Applicant in furtherance of interest

of justice. Answer to the question is obviously in the negative. By filing

as many as four Applications for adducing additional evidence the

Applicant has indulged in gross abuse of process of law and was in fact

creating a hindrance in the interest of justice. Therefore the judgment in

Malayalam Plantations Limited (supra) does not assist the case of the

Applicant.

Page No. 15 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

27) In Jatinder Singh (supra), which judgment is considered by the

Apex Court in Malayalam Plantations Limited (supra), the High Court

had failed to take notice of application under Order XLI Rule 27 of the

Code while deciding the second appeal. The case did not involve filing of

multiple applications for leading additional evidence. The judgment

therefore can be distinguished on facts and does not assist the case of

the Applicant. In my view, therefore, it is not necessary to remand the

appeal for fresh decision only on account of appellate court’s failure to

decide Applications at Exhibits 22 and 23, which were not only baseless

but were filed in gross abuse of process of law.

28) Mr. Thorat has sought to criticize the Appellate Court by

contending that the provisions of Order XLI Rule 25 of the Code are

violated by answering the additional issue of limitation on the same day

of framing the same. As observed above, the Application at Exhibit-67 is

allowed by the Appellate Court on 22 January 2026 framing additional

issue relating to limitation and on the same day, the final judgment in

the Appeal is rendered answering the issue of limitation in the

affirmative. Mr. Thorat has relied upon Order XLI Rule 25 of the Code,

which provides thus:

25. Where Appellate Court may frame issues and refer them for trial to

Court whose decree appealed from.—

Where the Court from whose decree the appeal is preferred has omitted

to frame or try any issue, or to determine any question of fact, which

appears to the Appellate Court essential to the right decision of the suit

upon the merits, the Appellate Court may, if necessary, frame issues,

and refer the same for trial to the Court from whose decree the appeal is

preferred, and in such case shall direct such Court to take the additional

evidence required;

Page No. 16 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

and such Court shall proceed to try such issues and shall return the

evidence to the Appellate Court together with its findings thereon and

the reasons therefor within such time as may be fixed by the Appellate

Court or extended by it from time to time.

29) In my view, provisions of Order XLI Rule 25 of the Code cannot be

read to mean that in every case where the Appellate Court frames

additional issue, it is mandatory to refer the same for trial to the Trial

Court. In every case, the issue of limitation need not be a question of

fact. It can also be a pure question of law. In a given case, there can

already be sufficient evidence to decide the additional issue framed. In

the present case, decision of issue of limitation did not require leading of

evidence. Transfer of tenancy by Defendant No. 1 to Defendant No. 2 in

November-1995 is an admitted fact which is not disputed by the

Applicant/Defendant No. 2. Therefore, the issue of limitation qua the

ground of subletting is a pure question of law. As discussed in the latter

part of the judgment, this Court has already held that the act of

subletting gives rise to a continuous cause of action and accordingly, the

issue of limitation has been answered by the Trial Court by taking into

consideration the law on the subject. Therefore, for deciding the issue of

limitation, leading of additional evidence was not necessary. In fact,

under Order XLI Rule 24 of the Code, if the Appellate Court arrives at a

conclusion that evidence on record is sufficient to enable it to pronounce

the judgment it can resettle the issues and finally determine the Suit.

Therefore, in every case, it is not necessary to make an order of remand

to the Trial Court for inviting findings of the Trial Court on additional

issue framed by the Appellate Court. The objection in this regard, as

sought to be raised by the Applicant, therefore deserves rejection.

Page No. 17 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

30) Coming to the aspect of limitation in respect of ground of

unlawful subletting, it is contended by the Applicant that his induction

in the suit premises took place in November-1995 and therefore the Suit

instituted on 27 August 2008 was barred by limitation under Article 66 of

the Limitation Act, 1963, under which any suit for recovery of possession

was required to be filed within a period of 12 years of forfeiture of

tenancy. Reliance is placed by the Applicant on judgment of the Apex

Court in Ganpat Ram Sharma and Shakuntala S. Tiwari (supra). Both the

judgments were relied upon before this Court in Taherbhai T. Poonawala

(supra). This Court has distinguished the judgment in the case of

Taherbhai T. Poonawala (supra) in Shree Durga Trading Co. (supra) by

holding in paragraphs 17 and 18 as under:

17) It appears that the learned Single Judge of this Court in Shri.

Taherbhai T. Poonawala has differed with the view taken by the

Gujarat High Court that in case of illegal subletting there would be

continuous cause of action and has held that suit must be brought

within 12 years of act of subletting under Article 66 of the Limitation

Act. However, it appears that provisions of Section 22 of the

Limitation Act were not brought to the notice of this Court. Also, the

case involved peculiar facts where the Appellate Court therein had

rendered a finding that though tenant had entered into the said

tenancy agreement, he never stayed in the suit premises, right from

inception. This Court has relied on two judgments of the Apex Court.

The issue before the Apex Court in its judgment in Ganpat Ram

Sharma and others Versus. Smt. Gayatri Devi was about application

of Article 67 or Article 113 in respect of the suit for recovery of

possession from the tenant. Similarly, was the case in the judgment

of the Apex Court in Smt. Shakuntala S. Tiwari Versus. Hem Chand

Singhania. Thus, in both the judgments of the Apex Court relied

upon by the learned Single Judge in Shri. Taherbhai T. Poonawala,

the issue was not about the act of subletting giving rise to

continuous cause of action. In my view therefore, the judgment in

Shri. Taherbhai T. Poonawala, rendered in peculiar facts of that case

where the tenant had not occupied the premises even for a single

day, cannot be read in support of an absolute proposition of law that

in every case, the injury arising out of act of subletting would be

complete on the day when the subletting first occurs and that such

Page No. 18 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

an act would not constitute continuous cause of action under

Section 22 of the Limitation Act.

18) In my view, the act of unauthorised subletting by a tenant

constitutes a continuing breach of contract and therefore period of

limitation would begin to run so long as the act of subletting

continues. It is another case where the act of subletting comes to an

end and Plaintiff fails to file the suit for recovery of possession

within 12 years of reversal of act of subletting. In the present case, it

is conclusively proved that Defendant No.1 had allowed Defendant

No. 2 to conduct business in the suit premises till the year 2000.

Therefore, the suit filed in the year 2001 cannot be treated to be

barred by limitation.

31) In Shree Durga Trading Co. (supra) this Court noted provisions of

Section 22 of the Limitation Act and after taking into consideration the

judgment of the Supreme Court in Balakirshna Savalram Pujari

Waghmare V/s. Shree Dnyaneshwar Maharaj Sansthan,

10

this Court held

in paragraphs 11 to 13 of the judgment as under:

11) Though Dr. Thorat has submitted that Article 67 would be attracted

in the present case and not Article 66, in my view, it is not necessary to

enter into that debate. What needs to be considered is whether the

cause of action for recovery of possession on account of act of

subletting is continuous in nature. The concept of continuous wrong is

traceable to Section 22 of the Limitation Act, reading as under:

22. Continuing breaches and torts.- In case of a continuing

breach of contract or in the case of a continuing tort, a fresh

period of limitation begins to run at every moment of the time

during which the breach or the tort, as the case may be,

continues.

12) While considering a pari materia provision, i.e., Section 23 of the

Limitation Act, 1908, the Supreme Court in Balakirshna Savalram Pujari

Waghmare Versus. Shree Dnyaneshwar Maharaj Sansthan, reported in

AIR 1959 SC 798, laid down the law that the very essence of a

continuing wrong is that it is an act which creates a continuing source

of injury and renders the doer of the act responsible and liable for the

continuance of the said injury; however, if wrongful act causes an injury

which is complete, there is no continuing wrong even though the

damage resulting from the act may continue. The Court held thus:

10AIR 1959 SC 798

Page No. 19 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

31. It is then contended by Mr Rege that the suits cannot be held

to be barred under Article 120 because Section 23 of the

Limitation Act applies; and since, in the words of the said

section, the conduct of the trustees amounted to a continuing

wrong, a fresh period of limitation began to run at every moment

of time during which the said wrong continued. Does the conduct

of the trustees amount to a continuing wrong under Section 23?

That is the question which this contention raises for our decision.

In other words, did the cause of action arise de die in diem as

claimed by the appellants? In dealing with this argument it is

necessary to bear in mind that Section 23 refers not to a

continuing right but to a continuing wrong. It is the very essence

of a continuing wrong that it is an act which creates a continuing

source of injury and renders the doer of the act responsible and

liable for the continuance of the said injury. If the wrongful act

causes an injury which is complete, there is no continuing wrong

even though the damage resulting from the act may continue. If,

however, a wrongful act is of such a character that the injury

caused by it itself continues, then the act constitutes a

continuing wrong. In this connection it is necessary to draw a

distinction between the injury caused by the wrongful act and

what may be described as the effect of the said injury. It is only in

regard to acts which can be properly characterised as continuing

wrongs that Section 23 can be invoked. Thus considered it is

difficult to hold that the trustees' act in denying altogether the

alleged rights of the Guravs as hereditary worshippers and in

claiming and obtaining possession from them by their suit in

1922 was a continuing wrong. The decree obtained by the

trustees in the said litigation had injured effectively and

completely the appellants' rights though the damage caused by

the said decree subsequently continued. Can it be said that, after

the appellants were evicted from the temple in execution of the

said decree, the continuance of their dispossession was due to a

recurring act of tort committed by the trustees from moment to

moment? As soon as the decree was passed and the appellants

were dispossessed in execution proceedings, their rights had

been completely injured, and though their dispossession

continued, it cannot be said that the trustees were committing

wrongful acts or acts of tort from moment to moment so as to

give the appellants a cause of action de die in diem. We think

there can be no doubt that where the wrongful act complained of

amounts to ouster, the resulting injury to the right is complete at

the date of the ouster and so there would be no scope for the

application of 23 in such a case. That is the view which the High

Court has taken and we see no reason to differ from it.

(emphasis added)

Page No. 20 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

13) Applying the above ratio to the facts of the present case, the wrong

committed by Defendant No. 1 in subletting the premises continued

and thereby the injury caused to Plaintiffs also continued. This is not a

case where the wrongful act of Defendant No. 1 in subletting the

premises resulted in injury which was complete and only damages

resulting out of such injury continued. Therefore, in a case involving

subletting, a continuous cause of action would arise so long as the act

of subletting continues.

32) Thus, this Court has already taken a view in Shree Durga Trading

Co. (supra) that an act of subletting constitutes a continuous cause of

action for the landlord to file a Suit for recovery of possession of the

tenanted premises and that the period of limitation would begin to run

so long as the act of subletting continues.

33) Mr. Thorat has relied upon judgment of this Court in Bakul

Nandlal Gandhi (supra). It appears that attention of this Court was not

invited to judgment in Shree Durga Trading Co. (supra) while deciding

Bakul Nandlal Gandhi. Also, in Bakul Nandlal Gandhi this Court has

essentially upheld the claim of lawful protected sub-tenancy and has

taken into consideration the ground of limitation only as an additional

facet. The occupant therein is held to be a lawful sub-tenant, whose sub-

tenancy was found to be protected. This is clear from the following

findings recorded in paragraphs 24 to 26 of the judgment:

24. Even if it is assumed that sub tenancy of the Kiran Impex Traders

through partner-Nandlal Gandhi is not protected, then also cause of

action, if any, arose in the year 1956 more particularly on 26th June

1956, when partnership Agreement was executed between Jethalal Jajal

and Nandlal M. Gandhi constituting partnership-Kiran Impex Traders

and thereafter on 14th December 1956 when said Jethalal Jalal retired

from the partnership firm. The position on record clearly shows that the

earlier landlords i.e. Joshis took into consideration the execution of

Partnership Deed on 26th June 1956, and thereafter issued rent receipt

in the manner as “Jethalal V. Jalal-Kiran Impex Traders”. Thus, the

Page No. 21 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

erstwhile tenant agreed for the sub-tenancy. Thereafter the Deed of

Dissolution was executed on 14th December 1956, by which the said

Jethalal Jajal retired from suit premises and the tenancy was taken over

by Nandlal Gandhi. These factual aspects are well established. Thus, it

is clear that the cause of action, if any, arose on 26th June 1956/14th

December 1956. It is required to note that the original landlords never

took any action against the Defendant No.1-Nandlal Gandhi. The action

was taken by the new landlord-Chandrashi Chaturbhoy in the year 2001

i.e. after a period of 45 years.

25. As per Article 66 of the Limitation Act, to recover possession of

immovable property, based on forfeiture or breach of condition, the

period begins when the forfeiture is incurred or there is breach of

condition and limitation is 12 years. Thus, even assuming that the sub-

tenancy is not protected, then also as cause of action arose on 14th

December 1956 and therefore the Suit which has been filed by the new

landlord on 10th September 2001, who has purchased the property on

7th November 1998 is hopelessly barred by limitation. This reasoning is

additional reasoning assuming that the sub-tenancy is not protected by

1959 Notification or by 1987 Amendment to the Bombay Rent Act.

26. In any case, as already set out herein above, the factual position on

record clearly shows that sub-tenancy of Kiran Impex Traders, through

Nandlal Gandhi is protected sub-tenancy.

(emphasis added)

34) Thus, in Bakul Nandlal Gandhi (supra) this Court was convinced

that the person sought to be branded as sublettee was actually a

protected sub-tenant on account of induction taking place in the year

1956, i.e. before the datum line of 1 February 1973 prescribed under

Section 15A of the The Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947. The judgment is thus, rendered in the peculiar facts of

that case. Apart from not noticing the ratio of the judgment in Shri

Durga Trading Co. (supra) attention of this Court was also not invited to

provisions of Section 22 of the Limitation Act. In my view, therefore, the

judgment of this Court in Bakul Nandlal Gandhi rendered in the peculiar

facts of that case, is clearly distinguishable and cannot be cited in

support of an abstract proposition that non filing of Suit for eviction

Page No. 22 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

within 12 years of induction of sublettee would virtually convert a

sublettee into an authorised occupant of the tenanted premises.

35) Also, the judgment in Shri Durga Trading Co. is followed in the

recent decision of this Court in Sujata Shekhar Shetty and Ors. V/s Vivek

Madhavlal Pittie

11

. Therefore, the plea of limitation sought to be raised

by the Applicant deserves rejection.

36) So far as the objection of non-maintainability of the Suit on

account of the same being filed against a dead person is concerned, it is

seen that the Plaint was amended and legal heirs of Defendant No.1 were

brought on record. Therefore, it cannot be said that the Suit was filed

against a dead person. As on the date when the Suit was decided, the

same was not against any dead person. The objection in this regard

therefore deserves rejection.

37) The last ground of the Applicant being a tenant on account of

reflection of his name in the list appended to the Deeds of Conveyance is

again totally misplaced. Perusal of the clause 13 of the Deed of

Conveyance dated 15 July 2006 indicates that the same refers to both

‘tenants’ as well as ‘occupants’. Clause 13 of the Deed of Conveyance

reads thus:

13. The said property is fully occupied by the tenants and occupants as

per list attached hereto and marked ‘C’

This aspect is again no more res integra and in Ambavi Raghu Patel and

Pradeep Dattatray Gandhi (supra) this Court has concluded in similar

Suits relating to the premises in the same building that mere reflection

11 CRA 631 decided 27 March 2026

Page No. 23 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

of names of the occupants in the lists appended to the Conveyance

Deeds does not elevate the occupants to the status of tenants. This Court

has held in paragraphs 7 and 8 of the judgment in Ambavi Raghu Patel as

under:

7) Mr. Damle strenuously relies upon the Conveyance Deed executed in

favour of the Plaintiff in the year 2006 to demonstrate that in the list of

tenants, name of M/s. Jai Jalaram Stationary was specifically reflected.

He would submit that the Plaintiff thus accepted the position that M/s.

Jai Jalaram Stationary, in capacity as partnership firm, is the real tenant

in respect of the suit premises. However, it is an admitted position that

the rent receipt in respect of the suit premises continues in the name of

the first Defendant and not in the name of M/s. Jai Jalaram Stationary.

8) Mr. Kamat has also clarified the situation by relying on Clause 13 of

the recitals in which it is stated that the list of names in Annexure – C

to the Conveyance Deed is not only in respect of tenants but also

covered occupants. It thus appears that the name of M/s. Jai Jalaram

Stationary in Annexure – C to the conveyance is in capacity as occupant

and not tenant.

Thus, the Applicant cannot be held to be a tenant merely on the strength

of reflection of his name in the list appended to the Deed of Conveyance.

38) Considering the overall conspectus of the case, I am of the view

that no case is made out for interference in the concurrent findings

recorded by the Trial and Appellate Courts on the issue of unlawful

subletting. Civil Revision Application is devoid of merits. It is accordingly

dismissed without any order as to costs.

[SANDEEP V. MARNE, J.]

21)After the judgment is pronounced, Mr. Thorat prays for stay of

the judgment for a period of six weeks. The request is opposed by the

Page No. 24 of 25

4 May 2026

Megha 4_cra_136_2026_fc.odt

learned counsel appearing for the Respondents. Considering the fact

that there is no interim order operating in favour of the Applicant,

there is no question of stay of the judgment. The request is

accordingly rejected.

[SANDEEP V. MARNE, J.]

Page No. 25 of 25

4 May 2026