10-WP-12855-2018.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 12855 OF 2018 Khodu Sorab Irani …Petitioner Vs. Jahangir Dinshaw Irani and Ors. …Respondents WITH WRIT PETITION NO. 373 OF 2019 Mr. S. S. Patwardhan for the petitioner in WP/12855/2018. None for the petitioner in WP/373/2019. CORAM : GAURI GODSE, J. DATE : 18th SEPTEMBER 2026 ORDER : WRIT PETITION NO. 12855 OF 2018 1. The petitioner claims to be the co-owner of the suit premises. The writ petition challenges the concurrent judgments and decrees allowing the suit filed by respondent no. 1 against respondent no. 3, i.e. the original defendant (tenant). The suit was filed seeking eviction on the ground of bona fide requirement, acquisition of alternate suitable accommodation and permanent construction carried out by the tenant without the landlord’s consent. The suit was decreed against respondent no.3. Hence, she filed an appeal before the District Court. In this appeal, the present petitioner 1/6 Swapnil 2026:BHC-AS:38294 10-WP-12855-2018.docx had applied for leave to intervene on the ground that the suit premises are in his possession, as the defendant had surrendered the suit premises. From the title of the impugned judgment of the District Court, it appears that the petitioner was added as the co-appellant. The appeal is dismissed by confirming the findings recorded by the trial court. The courts held that the assignment of tenancy by the original defendant in favour of the third party was not valid. 2. Learned counsel for the petitioner submits that the petitioner has filed a suit for partition and separate possession. Since the petitioner is in possession of the suit premises and the decree was sought to be executed against the petitioner, he had intervened in the appeal preferred by the defendant. He further submits that in the trial court the original defendant had contended that she had surrendered her tenancy to the third party and handed over possession to one Mr. Mohammed Ali Ganji and thereafter the same was transferred to Mr. P. A. Inamdar. The petitioner received possession from Mr. P. A. Inamdar. 3. Learned counsel for the petitioner therefore submits that no tenancy existed when the suit was decided. Since the 2/6 10-WP-12855-2018.docx tenancy was surrendered, the trial court could not have decreed the suit. He therefore submits that, being the co- owner, the petitioner is in possession of the suit premises and, therefore, the impugned eviction decree cannot be executed against the petitioner. Since there is an apprehension of execution of a decree against the petitioner, the impugned judgments and decrees would warrant interference by this court. 4. I have perused the papers of the writ petition. The trial court and the appellate court have considered the defendant's contentions regarding the assignment of the tenancy. Both courts have held that assigning the tenancy in favour of a third party without the landlord's consent is invalid. After considering the suit on merits, the trial court granted an eviction decree against the defendant, i.e. respondent no.3 on all three grounds. The appeal court has also considered the issue of assignment of tenancy claimed by the original defendant. In the absence of any documentary evidence of a valid assignment of tenancy, the appellate court refused to entertain the tenant's contentions regarding the assignment. Since the separate suit between the co- 3/6 10-WP-12855-2018.docx owners was already pending, the appellate court did not entertain the present petitioner's contentions. 5. The trial court also considered the subsequent suit filed by the plaintiff against the defendant for eviction on a different ground. The said suit was dismissed by holding that the assignment of tenancy by the defendant in favour of one Mr. Mohammad Ganji and thereafter in favour of Mr. P. A. Inamdar was not valid. The trial court in the second suit, i.e. Civil Suit No. 66 of 2005, held that since the suit premises had collapsed, the tenancy ceased to exist. Hence, the suit was dismissed. The appeal filed by the original plaintiff against the said dismissal was withdrawn. The appellate court, therefore, refused to deal with the issue of assignment of the tenancy, as the findings in Civil Suit No. 66 of 2005 had attained finality. 6. The dispute between the co-owners, i.e., the present petitioner and the original plaintiff, is pending in the partition suit. Hence, the appeal court rightly refused to deal with the dispute between the co-owners. Accordingly, the appellate court dismissed the defendant's appeal and confirmed the trial court’s decree. The court issued no directions against 4/6 10-WP-12855-2018.docx the present petitioner. The issue regarding illegal assignment by the original tenant stands confirmed in view of the findings recorded in Civil Suit No. 66 of 2005. 7. Hence, so far as the present petition is concerned, I do not see any prejudice to the petitioner in view of the impugned judgments and decrees. The appeal court is right in observing that the dispute between the co-owners would be decided in the partition suit separately filed by the parties. Hence, though the petitioner was added as a party to the appeal, neither are there any findings recorded against the petitioner, nor is there any order against the petitioner. The scope of interference in the exercise of discretionary jurisdiction under Article 227 of the Constitution of India is no more res integra. The Apex Court in Shalini Sham Shetty and Anr. Vs. Rajendra Shankar Patil1, held that the writ jurisdiction under Articles 226 and 227 of the Constitution of India must be exercised sparingly in cases of patent perversity, where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In view of the well-settled legal principles laid down by the Apex Court, I find no reason to exercise writ 1 (2010) 8 SCC 239 5/6 10-WP-12855-2018.docx jurisdiction to entertain the writ petition. 8. The writ petition is, therefore, dismissed. WRIT PETITION NO. 373 OF 2019 1. None appears for the petitioner. 2. The writ petition is dismissed for non-prosecution. [GAURI GODSE, J.] 6/6