Case Note & Summary
The Applicants, as Trustees under an Indenture of Trust dated 6th October 1937, are the owners and landlords of a building known as 'Dhun Abad' at 106, Bhulabhai Desai Road, Mumbai. In May 1982, they filed R.A.E. Suit 809/3046 of 1982 in the Small Causes Court, Mumbai, seeking possession of Flat No. 4 on the first floor of the building on grounds of non-payment of rent, subletting, and unauthorized additions and alterations. The original defendants included Plaintiff No. 1 in the above Suit and two alleged illegal sublessees. The defendants initially claimed that Plaintiff No. 1 was the sole tenant, but later amended their written statement to assert that the flat was taken for accommodating employees of a partnership firm. In April 2010, the Applicants amended the plaint to add Salim A. Oomerbhoy as a defendant. The Applicants filed the present Leave Petition seeking retrospective leave to continue prosecuting the Small Causes Court Suit for a period of about 11 months when the Court Receiver had been appointed and was said to have been in possession of the suit flat. The Court examined the facts and found that the Court Receiver was never in actual possession of the suit flat; the Receiver had only been appointed and had taken symbolic possession. Therefore, the Court held that the Applicants did not require leave to continue the suit during that period. The petition was disposed of by declaring that no leave was required, and the alternative prayer was not considered.
Headnote
A) Civil Procedure - Leave to Sue - Section 80 CPC - Court Receiver's Possession - The Applicants sought retrospective leave to prosecute a RAE Suit during the period when the Court Receiver was appointed and allegedly in possession of the suit flat. The Court held that since the Court Receiver was never in actual possession of the suit flat, the Applicants did not require leave to continue the suit. The petition was disposed of by declaring that no leave was required. (Paras 1-5) B) Trust Law - Trustees' Rights - Indenture of Trust - The Applicants, as Trustees under an Indenture of Trust dated 6th October 1937, were the owners and landlords of the building. They filed a RAE Suit for possession of the suit flat on grounds of non-payment of rent, subletting, and unauthorized alterations. The Court recognized their right to seek possession. (Paras 2.1-2.2)
Issue of Consideration
Whether the Applicants (Trustees) required leave of the Court to continue prosecuting a RAE Suit during the period when the Court Receiver was appointed and allegedly in possession of the suit flat, and whether such leave should be granted retrospectively or dispensed with.
Final Decision
The Court held that since the Court Receiver was never in actual possession of the suit flat, the Applicants did not require leave to continue the suit. The petition was disposed of by declaring that no leave was required. The alternative prayer was not considered.
Law Points
- Leave to sue under Section 80 CPC
- Court Receiver's possession
- retrospective leave
- necessity of leave when receiver not in possession
