Case Note & Summary
The petitioner, Kalpana Koyama (also known as Kalpana R. Ghatge), filed a writ petition challenging an eviction order dated 29 August 1998 passed by the Additional Chief Judge, Small Causes Court, Mumbai. The petitioner was the original defendant No.1 in a suit filed by her mother, Mrs. Vatsalaraje R. Ghatge (plaintiff No.1), and her sister, Ms. Kavita R. Ghatge (plaintiff No.2), arising out of a family dispute over tenanted premises. The High Court had admitted the petition and granted protection to the petitioner, allowing her to remain in possession since 1999. By the time of final hearing, the mother had expired on 9 June 2009, and the sister had moved out of the premises long ago. The contesting respondents (the original plaintiffs) did not press the proceedings against the petitioner. The original landlord/owner did not challenge the proceedings. In view of these changed circumstances, the court found no point in keeping the petition pending. The court quashed and set aside the impugned eviction order and directed that the petitioner shall continue to retain possession of the premises until the suit is finally decided. The petitioner was also directed to continue paying necessary charges such as electricity and maintenance. The petition was allowed in terms of prayer clause (a) setting aside the impugned order, with other prayers to be decided in the main proceedings. Rule was made absolute with no order as to costs.
Headnote
A) Rent Control - Eviction - Family Dispute - The petitioner, a daughter and original defendant, challenged an eviction order passed by the Small Causes Court. The original plaintiffs (mother and sister) did not press the proceedings; the mother died and the sister moved out. The High Court quashed the eviction order and allowed the petitioner to retain possession pending final decision of the suit, as there was no objection from any side. (Paras 2-4)
Issue of Consideration
Whether the eviction order dated 29 August 1998 should be set aside in light of the death of one plaintiff and the other plaintiff moving out, and the petitioner being in possession since 1999.
Final Decision
The petition is allowed. The impugned order dated 29 August 1998 is quashed and set aside. The petitioner is entitled to continue to retain possession of the premises until the suit is finally decided. The petitioner shall continue to pay necessary charges (electricity, maintenance, etc.) regularly. Rule made absolute. No costs.
Law Points
- Eviction order set aside due to changed circumstances
- petitioner allowed to retain possession pending suit
- no objection from original plaintiffs or landlord
Case Details
2017 LawText (BOM) (06) 34
Writ Petition No.794 of 1999
None for the Petitioner; Ms. Namrata Vinod i/b M/s. Federal & Rashmikant for Respondent Nos.1 & 2
Kalpana Koyama (Kalpana R. Ghatge)
Mrs. Vatsalaraje R. Ghatge, Ms. Kavita R. Ghatge
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Nature of Litigation
Writ petition challenging an eviction order passed by the Small Causes Court in a family dispute over tenanted premises.
Remedy Sought
Petitioner sought setting aside of the eviction order dated 29 August 1998 and protection of possession.
Filing Reason
The petitioner, a daughter and original defendant, was aggrieved by the eviction order passed in a suit filed by her mother and sister.
Previous Decisions
The Additional Chief Judge, Small Causes Court, Mumbai passed the eviction order on 29 August 1998. The High Court admitted the petition and granted protection to the petitioner, allowing her to remain in possession since 1999.
Issues
Whether the eviction order should be set aside in view of the death of one plaintiff and the other plaintiff moving out, and the petitioner being in possession since 1999.
Submissions/Arguments
The contesting respondents (original plaintiffs) did not press the proceedings against the petitioner. The original landlord/owner did not challenge the proceedings.
Ratio Decidendi
In a family dispute over tenanted premises, where the original plaintiffs do not press the proceedings and the landlord raises no objection, the eviction order can be set aside and the defendant-petitioner allowed to retain possession pending final decision of the suit.
Judgment Excerpts
The present petition is filed by one of the daughters (original Defendant No.1) thereby challenging order dated 29 August, 1998 passed by the Additional Chief Judge, Small Causes Court, Mumbai whereby the eviction order was issued.
Taking overall view of the matter, I am of the view that there is not point in keeping the petition pending as the Petitioner (Kalpana), who is in possession of the premises, will continue to retain the possession till the appropriate proceedings, if any, initiated by the owner / landlord.
Procedural History
The suit was filed by the mother and sister against the petitioner in the Small Causes Court, Mumbai. The Small Causes Court passed an eviction order on 29 August 1998. The petitioner challenged that order by filing Writ Petition No.794 of 1999 in the Bombay High Court. The High Court admitted the petition and granted interim protection allowing the petitioner to remain in possession. The petition was listed for final hearing in summer vacation 2017. By then, the mother had died (9 June 2009) and the sister had moved out. The contesting respondents did not press the proceedings. The High Court disposed of the petition by quashing the eviction order and allowing the petitioner to retain possession pending final decision of the suit.
