Vs. Saleh Hooseini Doctor & ANR.  INSC 1581 (15 September 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6257/2009 @
SPECIAL LEAVE APPEAL (CIVIL) NO. 30374 OF 2008 FGP Ltd. ...Appellant(s) -
Versus - Saleh Hooseini Doctor & Anr. ..Respondent(s)
The order of the High Court in its revisional jurisdiction is
impugned before this Court by the appellant herein, a tenant in respect of the
premises being No.D1, Unit Type 401 on the 4th Floor of the 1 Building known as
"Daisylea" situated at 17A, Mount Pleasant Road, Mumbai-400006
(hereinafter "the suit premises").
The appellant is a public limited company whose paid up share
capital is more than Rs.1 crore and is therefore not entitled to any protection
under the Maharashtra Rent Control Act, 1999. On 16.07.1981 the appellant
entered into a tenancy agreement with Late Mrs. Sheroo Hooseini Doctor, mother
of the respondents and the original owner of the suit premises. The appellant
contends that prior to 16.07.1981 the said owner entered into another agreement
with it and agreed to sell the flat for a sum of Rs.5 lacs and in the said
agreement it was acknowledged that the payment of the entire sale consideration
of Rs.5 lacs had been received by the original owner. The further case of the
appellant is that as 2 the sale in terms of the sale agreement dated 16.07.1981
was not completed within time, it gave a notice in 1991 to the vendor to
complete the sale and as it was not completed, the appellant thereafter filed a
suit for specific performance on 10.10.1991 which is still pending in the High
However, the respondents filed a suit being R.A.E. Suit No.127/338
of 1991 against the appellant in the Court of Small Causes under the Bombay
Rent Act, 1947 for possession of the suit premises on the ground of reasonable
and bona fide requirement. After the amendment of the provisions of Maharashtra
Rent Control Act, 1999 the previous suit of 1991 filed under the Bombay Rent
Act, 1947 was withdrawn on 24.01.2003. Prior to that another suit was filed on
2.08.2001 by Saleh Hooseini Doctor 3 and Niloofer Arun Sawhney, who are son and
daughter respectively of the original owner, in the Small Causes Court against
the appellant and it was registered as TE & R Suit No.427/450 of 2001.
On 12.08.2005 the said suit was allowed by the Small Causes Court
of Bombay, inter alia, holding that the suit is maintainable as the plaintiffs
represent the estate of the original owner. The trial Court directed appellant
to handover vacant and peaceful possession of the suit premises and ordered an
enquiry with respect of mesne profit. Against the said judgment and order, the
appellant filed an appeal which was dismissed on 30.08.2008 by the Court of
Small Causes Bombay being Appeal No.731 of 2005.
Challenging the said order, the revision application was filed
before the High court which was also dismissed by the High Court on 2.12.2008.
As noted above impugning the High Court judgment the present proceeding has
been initiated before this Court by the appellant.
Before the High Court it was conceded on behalf of the appellant
that it is a public limited company having paid up share capital of more than
Rs.1 crore and, therefore, the suit premises is exempted from the provisions of
Maharashtra Rent Control Act, 1999.
From the reading of the judgment of the High Court, it appears
that the only point urged before the High Court in revision was that plaintiffs
cannot file the suit, inter alia, on the ground that the original owner 5 Mrs.
Sheroo Doctor and her husband Hooseini Doctor, even though belonged to Dawoodi
Muslim Community and married according to Muslim rites, they got their marriage
registered under the Special Marriage Act on 11.01.1991. As a result of such
registration, the marriage shall, as from the date of such registration, be
deemed to be a marriage solemnized under the said Act and as a consequence
thereof under Section 21 of the said Act, the property of the parties shall be
regulated under the provisions of Indian Succession
further urged that as a result of the necessary corollary of the same, the
provisions of sub-section (2), Section 213 of the Indian Succession Act is not applicable. Therefore, in the absence of any
probate having been obtained by the plaintiffs the suit is not maintainable.
It was further stated that under Section 216 of the Indian Succession Act it is provided once a probate or letters of administration
have been granted to a particular person, no other person can sue or prosecute
any suit or otherwise act as representative of the deceased unless such probate
or letters of administration have been recalled or revoked. Relying on this
legal position, the learned counsel for the appellant argued that on 8.5.2002
the probate was granted by the Bombay High Court to the husband of the
testatrix and her husband was the sole executor. Since the probate has not been
granted to other executors the plaintiffs have no right to file a suit without
obtaining probate or letters of administration. Reliance was also placed on
Section 232(c) and 234 of the Indian Succession Act.
No other point was urged before the High Court.
However, before this Court it was submitted on behalf of the
appellant that three agreements were executed between the appellant and the
owner of the flat in July 1981. The first one was entered into on 14.7.1981
whereby the erstwhile owner of the flat agreed to sell the same to the
appellant for a sum of Rs.5 lacs and the said agreement also acknowledged that
the entire sale consideration of Rs.5 lacs have been received by the erstwhile
owner and in the said agreement it was stipulated that the appellant would be
entitled to occupy the suit premises as tenants of the vendor till the suit for
specific performance was decreed. It was also urged that in pursuance of the
said agreement dated 14.7.1981 the original owner executed 8 another agreement
dated 16.07.1981 and thereby let out the suit premises to the appellant as a
tenant. Another agreement dated 20.7.1981 was also executed on the stamp paper
between the original owner and the appellant-company, whereby the original
owner again agreed to sell the appellant- company the suit premises for the
same price of Rs.5 lacs which the original owner received on 14.07.1981.
It is, therefore, urged that under these circumstances it is
wholly illegal for the Bombay Small Causes Court to decree the suit in favour
of the legal representatives of the original owner and the High Court, by not
interfering in revision with those orders, was in error.
The appellant also placed reliance on Section 53-A of the Transfer
of Property 9 Act and urged that the original owner of the suit premises had
admittedly contracted to transfer for consideration by an agreement in writing
the suit premises in favour of the appellant-company and in part performance of
the said contract the appellant-company had taken possession of the property
and was willing to perform its part of the contract. It was also urged that in
fact a suit for specific performance of the contract is pending between the
parties in Bombay High Court since 1991 and therefore, Section 53-A of the
Transfer of Property Act debars the original owner or any other person claiming
under her from enforcing against the appellant-company any right in respect of
the suit property of which the appellant- company had taken and continues to
remain in possession. It was urged that the handing over of possession to the
10 appellant-company by the tenancy agreement dated 16.07.1981 was in part
performance of the agreement dated 14.07.1981 and Section 53-A of the Transfer
of Property Act is applicable. Therefore, the suit, which was filed to enforce
the ownership right against the appellant-company who had paid the entire sale
consideration, is not maintainable.
As noted above, neither the case arising out of the agreement to
sell and the application of Section 53-A nor the case of specific performance
was argued before the High Court. It appears that the same was also not argued
before the Small Causes Court either at the trial or at the appellate stage.
Therefore, we can refuse to consider those arguments. However,
since arguments have 11 been advanced, this Court is considering the same. But
we do not find much substance in those arguments for the following reasons.
Before this court the learned counsel for the appellant placed
reliance on Clause 7 of the alleged agreement to sell dated 14.7.1981.
But in the suit which was filed by the appellant before the Bombay
High Court for specific performance reliance was not placed on the agreement
instead was placed on the substituted agreement dated 20.07.1981.
plaint which was filed by the appellant before the High Court was produced
before this Court and in the plaint reference was made to Clause 5 of the
agreement dated 12 20.07.1981. The said Clause 5 is set out below:- "5.
The sale shall be completed within three months after the 31st day of January
1982 or at the Vendors option on or after 31st January, 1986 upon the Purchaser
calling upon the Vendor to execute the conveyance in favour of the Purchaser
and upon the Vendor procuring the income-tax clearance certificate under
Section 230A of the income-tax Act and all other permissions and consents which
may be required under law."
The main thrust of the argument on the question of specific
performance of the contract is that the appellant has paid Rs.5 lacs as a sale
consideration money under the agreement to sell dated 14.07.1981. But Clause 5
of the tenancy agreement dated 16.07.1981 makes it clear that the said amount
of Rs.5 lacs was given as a security deposit without any interest for carrying
out the terms and conditions of the tenancy agreement. Clause 5 of the 13
agreement dated 16.7.1981 is set out below:- "5. The tenant to deposit
with the Owner Rs.5,00,000/- (Rupees Five Lakhs only) as security deposit
without interest for carrying out the terms and conditions of this agreement.
deposit will be refunded to the Tenant on the Tenant vacating the said flat and
the said open parking space by giving vacant possession of the said flat and
the said open parking space to the Owner."
In paragraph 2 of the Specific Performance suit before the Bombay
High Court the said amount of Rs.5 lacs has been specifically referred to as
security deposit. Paragraph 2 of the said plaint is set out hereinbelow:-
"By a Deed of Lease executed on 16th July, 1981, the Defendant granted a
monthly tenancy to the plaintiffs of the said premises on the terms mentioned
therein. The plaintiffs kept a deposit with the Defendant of a sum of Rs.5 lacs
by way of security deposit as mentioned in the said agreement. The plaintiffs
crave leave 14 to refer to and rely upon the said agreement when produced.
Pursuant to the said agreement the plaintiffs were put in exclusive possession
of the said premises and the same have been in possession of the plaintiffs
It may also be mentioned herein that the said amount of Rs.5 lacs
was deposited by a cheque by Fiberglass Pilkington Limited, previously the
appellant was known in that name. The said cheque was given to the original
owner by a forwarding letter dated 14.07.1981 and in the said letter the said
amount has been described as a deposit in compliance of the tenancy agreement.
The relevant parts of the letter are:
refer to the agreement in respect of the above premises and as agreed enclose
herewith our cheque No. 990188 dated 14.7.81 for Rs.5,00,000/- on Chartered
Bank in your favour, being deposit for compliance with the terms of tenancy
agreement between us.
Therefore, the claim of the appellant that the said deposit of
Rs.5 lacs was sale consideration money for the suit premises is contradicted by
its averments in the suit and also from the material documents on record.
Apart from that, Clause 5 of the agreement dated 20.07.1981, on
which the appellant's suit for specific performance is based, stipulates that
the sale shall be completed within 3 months after 31.01.1983 or at the vendor's
option on or after 31.01.1986.
nothing on record to show that the appellant ever called upon the owner to
complete the sale within 3 months from 31.01.1983. In fact the appellant did
not take any step for 10 long years and it only became active after the suit
was filed by the owner for eviction of the appellant in February 1991. The
appellant for the first 16 time wrote a letter dated 19.08.1991 calling upon
the owner to complete the sale in terms of agreement dated 20.07.1981. To this
letter a reply was sent by the owner on 26.08.1981 refusing to execute the
contract in terms of the option of vendor under Clause 5 of the agreement dated
20.07.1981. These facts are admitted in paragraphs 5 to 7 of the plaint filed
by the appellant in specific performance suit.
It may be
mentioned in this connection that neither in the eviction suit filed against
the appellant nor in the appeal filed by the appellant against the adverse
decision passed against it in the eviction suit, the plea of specific
performance was either an issue in the suit or a point for consideration in the
It is well known that the remedy of specific performance is special
and 17 extraordinary in character and is discretionary in nature. From the
facts discussed above, it appears that the appellant has not succeeded in
making out a strong case on specific performance so as to restrain the
respondents from proceeding with their suit for eviction.
We, however, make it clear that the observations made by us on the
specific performance suit filed by the appellant are tentative in nature. Those
observations have been made as submissions have been made before this Court
that during the pendency of the appellant's suit for specific performance, the
eviction suit should have been stayed. In order to deal with those submissions
we have made the observations as aforesaid. But those are tentative and will
not affect the merits of the specific performance suit filed by the 18
appellant and which is pending in the Bombay High Court.
The submission by the appellant's counsel on part performance of
the contract under Section 53-A of the Transfer of Property Act also cannot be
accepted. Section 53-A of the Transfer of Property Act is based upon the
equitable doctrine of part performance in English Law. Initially Section 53-A
was not incorporated in the Transfer of Property Act but the same came by way
of an amendment for the first time by the Transfer of Property Amendment Act
1929 (Act of 1929). The amendment had to be made in view of some divergence in
judicial opinion on the application of the aforesaid equitable doctrine by
various Courts in India.
Section 53-A of the Transfer of Property Act has certain
ingredients and, in our judgment, those are:-
contract to transfer immovable property;
transfer should be for consideration;
contract must be in writing;
should be signed by or on behalf of the transferor;
terms of the contract can be ascertained with reasonable certainty from the
transferee takes possession of the whole or part of the property or if already
in possession continues in possession;
taking of or continuance in possession should be in part performance of the
transferee should do some act in furtherance of the contract; and (9) he should
have performed, or be willing to perform, his part of the contract.
The rationale of the equitable doctrine of part performance in
English Law has been 20 traced in Section 53-A by this Court in the case of
Sardar Govindrao Mahadik and 1 SCC 237.
In paragraph 13, page 249 of the report while tracing the said
equitable doctrine in the way it has been assimilated in Section 53-A of the
Transfer of Property Act, the learned Judges held that the act or action relied
upon as "evidencing part performance" must be of such nature and
character that its existence would establish the contract and its
implementation. The learned Judges further held that the crucial act or action
must be of such a character as to be unequivocally referable to the contract as
having been performed in performance of the contract.
support of the said conclusion, the learned Judges referred to an Old English
21 decision rendered in the case of Lady 131). In referring to the said case,
the learned Judges quoted the observations therefrom and which are reproduced
performance to take the case out of the Statute of Frauds, always supposes a
completed agreement. There can be no part performance where there is no
completed agreement in existence. It must be obligatory, and what is done must
be under the terms of the agreement and by force of the agreement..."
of the report)
Relying on the aforesaid principle, the learned Judges in Sardar
Govindrao Mahadik (supra) reiterated that the act relied upon by the party
invoking the said doctrine must be such as by its own force to show the very
existence of the same contract.
Applying the aforesaid tests, as we must, to the present situation
we find that no 22 case for part performance of the contract has been made out.
Here in the plaint filed in the specific performance suit, the case of the
appellant is that it was put in possession of the suit premises pursuant to the
tenancy agreement dated 16.07.1981 and not on the basis of any other agreement.
look at the tenancy agreement, we will not find that the appellant was put in
possession under the same. In the said suit no evidence appears to have been
led by the appellant to show how it came to the possession of the suit
premises. This aspect of the case is quite vague.
Apart from that according to the appellant it allegedly paid Rs.5
lacs as sale consideration for the suit premises. As already pointed out in
para 2 of the plaint in the specific performance suit, it has been clearly
averred that the said amount 23 of Rs.5 lacs was kept in deposit with the
original owner of the premises by way of security deposit in terms of tenancy
agreement dated 16.07.1981.
In any event, the appellant is required to show that it either
performed or is willing to perform its part of the contract. But admitted facts
of the case are to the contrary. After the execution of the alleged agreement
for sale dated 20.07.1981, the appellant was totally silent and it is only
after more than 10 years thereafter i.e. on 19.08.1991, for the first time, it
asked the owner to complete the sale and that too after the ejectment suit was
filed in February 1991 by the owner. Thus, in the facts and circumstances of
this case, the doctrine of part performance under Section 53-A cannot be
invoked. Therefore, there is no merit 24 in the argument advanced on behalf of
by the appellant on that score.
Argument advanced on behalf of the appellant on the competence of
the respondents to file the suit out of which the present proceeding arises is
If we look at the recitals in paragraphs 2 and 3 of the Will of
the original owner, it would appear that the testatrix appointed her husband
Hooseini Salehbhoy Doctor to be the executor of the Will and failing him
appointed her sons Saleh Doctor and Parvez Doctor and daughter Niloofer Sawhney
to be the executors/executrix of the Will jointly as well as severally for all
Paragraph 3 of the Will is very relevant and is set out as below:
"I DECLARE that in the subsequent clauses of this my Will the expression
"my Executors/Trustees" (Whenever the context permits shall mean and
include the Executors/Executrix and Trustee or Trustees of this my Will for the
time being whether original additional or substituted)."
It is clear that whenever Hooseini Salehbhoy Doctor (husband) is
unable to act as executor for whatever reason, the respondents are substituted
as executors under the Will.
The aforesaid recitals in the Will are in consonance with Sections
222 and 234 of the Indian
Succession Act. For better appreciation of this
point, both the Sections are set out below:
Probate only to appointed executor. - (1) Probate shall be granted only to an
executor appointed by the Will.
The appointment may be expressed or by necessary implication."
Grant of administration where no executor, nor residuary legatee, nor
representative of such legatee. - When there is no executor and no residuary
legatee or representative of a residuary legatee, or he declines or is
incapable to act, or cannot be found, the person or persons who would be
entitled to the administration of the estate of the deceased if he had died
intestate, or any other legatee having a beneficial interest, or a creditor,
may be admitted to prove the Will, and letters of administration may be granted
to him or them accordingly."
From a conjoint reading of these two Sections, it is clear that
the said Act recognizes the contingency that where the executor appointed by a
Will is unable to act, any other legatee having a beneficial interest may be
admitted to prove the Will and letter of administration can be granted to him.
Apart from that, in this case, the respondent No.2 - Niloofar, one
of the plaintiffs is a co-owner of the suit premises. In paragraph 9 of the
Will there is a specific reference to the suit premises and also to the pending
litigation in Small Causes Court at Bombay as well as in the High Court. In
paragraph 9 there is a specific recital that the suit premises is bequeathed to
Parvez H. Doctor. However, Pervez died on 28.11.1998 and, thus, predeceased the
testatrix who died on 30.1.1999. In such a situation, the provisions of Section
105 of the Indian Succession Act, 1925 is attracted.
Section 105 of the Indian Succession Act
In what case legacy lapses. - (1) If the legatee does not survive the testator,
the legacy cannot take effect, but shall lapse and form part 28 of the residue
of the testator's property, unless it appears by the Will that the testator
intended that it should go to some other person.
order to entitle the representatives of the legatee to receive the legacy, it
must be proved that he survived the testator."
It is clear from the aforesaid Section that the suit premises thus
become residuary estate of the testatrix which was to be distributed in
accordance with Clause 11 of the will.
Clause 11 (iii) of the said Will reads as follows:
share to be given to my daughter Niloofer absolutely. If my said daughter
Niloofer predeceased me the said one-third share of my said daughter Niloofer
shall be given to my son-in-law Arun to be held by him in Trust for my
grandchildren Manisha and Alisha and any other child born to my said daughter
Niloofer, who may be surviving at the time of my death to use the
income-interest, if any, from 29 such bequest, for the benefit of the children
of my said daughter Niloofer who may be surviving at the time of death and to
handover the proportionate share of the corpus in equal shares to each of my
said grandchildren on their attaining the age of 25 years or on their marriage
whichever is earlier. In case of my son-in-law Arun also predeceased me the
said one-third share of my said predeceased daughter Niloofer shall be held in
trust by my Executors and Trustees for the benefit of my grand- children born
to my said daughter Niloofer and I direct my Executors/Trustees to use the
income- interest, if any of such bequest for the benefit of my said
grandchildren and to handover the proportionate share of the corpus in equal
shares to each of my said grandchildren on their attaining the age of 5 years
or on their marriage whichever is earlier."
Therefore, respondent no.2- Niloofer along with others is the
residuary legatee and is one of the owners of the suit premises. A co-owner can
always maintain a suit for eviction.
It has been urged by the learned counsel for the appellant that in
the Suit which 30 has been filed by the respondents they have not asserted that
they are filing it as co- owners but they have claimed that they are filing it
as executors/executrix. So they cannot now meet the challenge of
maintainability of the Suit on the ground that it was filed by the respondents
as co- owners.
It is not possible to accept the aforesaid contention in the facts
of this case. This Court is of the opinion that if the status of the
respondents as co-owners of the property transpires clearly from the admitted
facts of the case, they cannot be denuded of the said status at the instance of
some objections by the tenants.
a tenant's right to question the title of a landlord is very limited in view of
rule of law which is codified in Section 116 of the Indian Evidence Act.
Apart from that it has been held in some decisions of this Court
that a co-owner of a property is an owner of the property, till the property is
4 SCC 184, it has been held that a co-owner is as much an owner of the entire
property as any sole owner. In coming to the said finding, the learned Judges
relied on the proposition laid down in Salmond on Jurisprudence (13th edition).
The relevant principles in Salmond on Jurisprudence are set out herein below:
is an undivided unity, which is vested at the same time in more than one
The several ownership of a part is a different thing from the co-
ownership of the whole. So soon as each of two co-owners begins to own a part
of the thing instead of the whole of it, the co-ownership has been dissolved
into sole ownership by the process known as partition. Co- 32 ownership
involves the undivided integrity of what is owned.
Relying on the aforesaid jurisprudential principles, this Court in
Sri Ram Pasricha (supra) held as under:
it is not correct to say that a co-owner of a property is not its owner. He
owns every part of the composite property along with others and it cannot be
said that he is only a part-owner or a fractional owner of the property. The
position will change only when partition takes place..." (Para 27, page
190 of the report)
Since in the instant case, no partition has taken place, the
plaintiffs' status as co- owners cannot be disputed by the tenant and it is
nobody's case that there is a clash of interest between the respondent and co-
Therefore, the Suit is maintainable.
Reference in this connection may be made to a decision of this
Court in Mohinder Prasad 724. In para 10 of the said report, learned Judges
referred to a decision of this Court Agarwalla - (2004) 3 SCC 178, which in
turn relies on Sri Ram Pasricha (supra). The principles which have been
affirmed in Mohinder Prasad Jain (supra) are that one co-owner filing a suit
for eviction against the tenant does so on his own behalf in his own right and
as an agent of the other co- owners. In this matter, the consent of other
co-owners is assumed as taken unless it is shown that the other co-owners were
not agreeable to eject the tenant and the suit was filed in spite of their
disagreement.(See para 10 page 727 of the report). It is nobody's case here
that 34 other co-owners are objecting to the filing of the suit in question.
Apart from that in this case, the appellant has admitted the title
of the respondents as it has joined them as defendants in their specific
performance suit as executors. This appears from the judgment in Appeal No. 731
of 2005 dated 30.8.2008 in the Court of Small Causes at Bombay. The exact
conclusions of the appellate Court are set out below:
..In that suit (specific performance suit), present plaintiffs are joined as
defendants..... It means the defendant admitted derivative title of the present
In this connection, we must see the distinction between Sections
211 and 213 of the Indian
Succession Act. Under Section 211 of the said Act,
the executor or administrator, as the case may be, of a 35 deceased person is
his legal representative for all purposes, and all the property of the deceased
person vests in him as such.
legal representatives will have the same meaning as has been given in Section
2(11) of the Code of Civil Procedure.
Section 2(11) of the Code of Civil Procedure provides as under:
representative" means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate of
the deceased and where a party sues or is sued in a representative character
the person on whom the estate devolves on the death of the party so suing or
Therefore, it is Section 211 and not Section 213 that deals with
the vesting of property. This vesting does not take place as a result of
probate. On the executor's accepting his office, the property vests on him and
executor derives his title from the 36 Will and becomes the representative of
the deceased even without obtaining probate.
of probate does not give title to the executor. It just makes his title
certain. Under Section 213, the grant of probate is not a condition precedent
to the filing of a suit in order to claim a right as an executor under the
This vesting of right is enough for the executor or administrator
to represent the estate in a legal proceeding. It has been - reported in AIR
1938 Calcutta 714 that the whole scheme of the Act is to provide for the
representation of the deceased's estate for the purpose of administration.
vesting is not only for the beneficial interest in the property but is also for
the purposes of representation. Similarly, 37 Supramanian Chetty - (1916) 43 IA
113, that an executor derives his title from the Will and not from the probate
and the right of action in respect of personal property of the testator vests
in the executor on the death of the testator.
But Section 213 operates in a different field. Section 213 enjoins
that rights under the Will by executor or a legatee cannot be established
unless probate or letters of administration are obtained.
Therefore, Section 211 and Section 213 of the said Act have
different areas of operation. Even if Will is not probated that does not
prevent the vesting of the property of the deceased on the
executor/administrator and consequently any right of action to represent the
estate of 38 the executor can be initiated even before the grant of the
Similar opinion has been expressed by this Court in Commissioner,
Jalandhar Division (2004) 7 SCC 505 (See para 10 at page 513).
suit filed by the respondents as executors is also maintainable.
Thus on the facts of the case this Court does not find any
justification for its interference with the decision of the High Court rendered
in its revisional jurisdiction. In coming to this conclusion, this court has
considered the facts of this case and also the fact that appellant is paying a
meager sum of Rs. 900/- and odd per month for occupying the said flat in a
prime area in Mumbai. Appellant is not in occupation of the said flat and since
2000 39 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the
Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the
said flat. The flat is lying vacant since May, 2005.
As against all these facts when we find that the Suit is for
reasonable requirement and was filed by the grandchildren of the testatrix,
this Court, in our judgment, should not exercise its discretionary jurisdiction
by interfering with the eviction proceeding which culminated in the revisional
order of the High Court.
Reference in this connection be made to a decision of this Court
in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Ors. - AIR 1960 SC 407.
In para 5 at page 408 of the said report, a three-Judge Bench 40 of this Court
posed a question whether this Court should interfere under Article 136 of the
Constitution and when in the facts of the case there is no failure of justice.
question has been answered by this Court as follows:
The question then arises whether we should interfere in our jurisdiction under
Article 136 of the Constitution, when we are satisfied that there was no
failure of justice. In similar circumstances, this Court refused to interfere
and did not go into the question of jurisdiction on the ground that this Court
could refuse interference unless it was satisfied that the justice of the case
required (1957) SCR 359: ((S) AIR 1957 SC 227).
parity of reasoning we are of the opinion that as we are not satisfied that the
justice of the case requires interference in the circumstances, we should
refuse to interfere with the order of the High Court dismissing the writ
petition of the appellant."
An attempt was made to review the said judgment. The review
petition was decided by a Constitution Bench of this Court.
Wanchoo speaking for unanimous 41 Constitution Bench has very succinctly, if we
may say so, outlined the parameters of this Court's jurisdiction under Article
136 of the Constitution and those observations, which we should always remember
while exercising jurisdiction under Article 136, are as follows:
is necessary to remember that wide as are our powers under Article 136, their
exercise is discretionary;
and if it
is conceded, as it was in the course of the arguments, that this, Court could
have dismissed the appellant's application for special leave summarily on the
ground that the order under appeal had done substantial justice, it is
difficult to appreciate the argument that because leave has been granted this
Court must always and in every case deal with the merits even though it is
satisfied that ends of justice do not justify its interference in a given
case..." (See AIR 1960 SC 1292 at 1294)
For the reasons stated above, we do not find any merit in this
appeal which is dismissed accordingly. However, we are restraining ourselves
for passing any order as to costs in view of the excellent 42 assistance
rendered to this Court by the learned counsel for the appellant.
there is no order as to costs.
.......................J. (MARKANDEY KATJU)