Tuesday, 7 August 2018

Whether suit by landlord against unknown legal heirs of tenant is maintainable?

The correct position in law on the contrary is that while ordinarily heirs must and ought to be named, there are circumstances in which they cannot be so named, and such a suit is maintainable and may result in a valid decree even for possession. This is the judgment of Patel J in VB Kapadia.

20. The correct position in law is thus the one enunciated in VB Kapadia and as reflected in the decision of BR Gavai J in Yusuf Hussain, and Ketkar J in Vasudha Dnyaneshwar Jawalkar. Such a suit without naming individual legal heirs and even without naming another defendant as an unlawful occupant cannot be said to be not maintainable, nor will it result in a decree that is a nullity.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 12449 of 2015

Decided On: 11.04.2018

 The Trustees of The NM Petit Charity Fund and Ors.
Vs.
 Jal Minocher Unwala

Hon'ble Judges/Coram:
G.S. Patel, J.



1. The Petition raises a narrow but, in my view, important question of both civil procedure and rent control legislation. I have heard Mr. Dani on behalf of the Writ Petitioner. The matter was assigned to this Court by a separate administrative direction. At first it was linked with a group of other matters but has now been segregated. I have also requested the presence of Mr. SG Adake, the present Administrator General who exercises powers, performs duties and discharges functions under the Administrator General's Act, 1963. The reason for this will became apparent shortly.

2. The issue at hand is this: there are cases in this city where a landlord does not know the names or addresses or both of the heirs of a deceased tenant. None come forward when the tenant dies. What is the process that a landlord should follow to recover his property? Is it at all permissible for the landlord to bring a formal eviction action in the names of, for instance, the heirs and legal representatives, if any of the late tenant? In our system of civil procedure, this seems to present procedural difficulties. In whose name would a Writ of Summons be issued? Where and how would it be served? What procedure should that Court of competent jurisdiction adopt? What safeguards are necessary to ensure that an unscrupulous landlord does not deliberately try and undermine or bypass legitimate statutory tenancy inheritance rights to the prejudice of the deceased tenant's family?

3. I am not therefore addressing the merits of this particular writ petition. I propose to examine the question of maintainability, and to then remit the matter for a decision in accordance with law to the jurisdictionally competent court. As to the facts, it is sufficient only to note that the Petitioners are the trustees of a charitable fund and trust that holds considerable property, as many of old trusts in the city do. The Petitioners filed L.E. & C. Suit No. 140/168 of 2012 in the Court of Small Causes at Mumbai. The suit sought possession of Block No. A/1, Flat No. 2, Petit Building, Avabai Petit Street, Grand Road, Mumbai 400 007, a residential block in a building admittedly owned by the Petitioners. The Trust inter alia provides residential accommodation to the poor and needy Parsis. This particular block was occupied by one Jal Minocher Unwala. He was the lone occupant of the premises. He died on 7th August 2011. The Petitioners as trustees were unaware of any heirs. The obituary in the newspapers disclosed no heirs or legal representatives against whom the Petitioners could have proceeded to recover the premises. Thus, when the Petitioners brought suit, they joined "the unknown heirs and legal representatives" of the deceased. It was their case that Jal Unwala was a licensee or a gratuitous licensee. I am, as I said, not concerned with the merits of this application. The suit itself was listed for a decision on the question of maintainability. On 15th February 2014, the Trial Court held that a suit against unknown heirs was maintainable provided that also joined to the Suit were another defendant or other defendants who were known and identified, albeit described as unlawful occupants. The Trial Court order is at Exhibit "D" from pages 35 to 52 of the Petition paper book. It seems to proceed on the basis that unless there is at least one known identifiable defendant, the suit is not maintainable. The end result was that the Trial Court rejected the plaint. The Petitioners appealed. The Appellate Bench considered this very question and ultimately framed a single point for determination i.e. whether the impugned order of 15th February 2014 was legal and proper and whether the Trial Court order called for interference. The Appellate Bench dismissed the appeal. Several authorities were cited before the Appellate Bench. It also noted the authorities that the Trial Court considered. The Court proceeded on the basis of the decision in Shrikant S Volvoikar v Narendra Pandu Chatim MANU/MH/1881/2010 : 2010 (4) Bom CR 336 to hold that no such Suit was maintainable because personal service cannot be effected on an unknown and unnamed defendant.

4. The Writ Petition assails this order on several distinct grounds. In regard to the decision in Shrikant Shambu Volvoikar's case, and to which I will presently turn, it is submitted, in my view with some justification, that the decision was not appreciated correctly. One of the points for distinction is that the decision there was in respect of a right of possession and ownership of certain open agricultural fields that were never subject matter of the rent control legislation or covered by the jurisdictional exclusionary provisions of the Presidency Small Causes Court Act, 1882.

5. To appreciate the controversy, one must first accept, and I do not think this admits of the slightest debate, that under our Rent Control legislation, a landlord can recover possession of tenanted premises only in certain specified modes and no other. There must be a decree for possession or there must be a surrender of the tenancy. It is never open to a landlord to simply walk in and resume possession of tenanted premises.

6. While assessing this, one must also understand the historical background to the legislation. The original Bombay Rents, Hotel and House Rents Control Act of 1947 was a time-limited provision during World War II. It was meant at first to ensure that during the time of World War II and the hardships that then existed, there was no artificial shortage created of affordable accommodation. Building materials were of course expensive. Construction had slowed. The obvious purpose was to ensure the people were not put out on to the streets by property owners taking advantage of these shortages. The 1947 Act introduced tenant protection, including rent control, protection against eviction except for statutorily defined cause, and, importantly, introduced the concept of heritability. The protection to tenants continued for several decades thereafter and more or less became an entrenched right. There were periodic amendments, including important ones to the issue of heritability. The Act itself was challenged. Ultimately, the present Rent Control legislation was brought in 1999. What rent control legislation has done since the inception is to specify and set out the grounds on which a landlord may recover possession or, to put it differently, to set out the grounds on which, and the circumstances in which, a tenant protected by the rent control legislation runs the risk of losing possession. Obviously what the rent control legislation contemplates is that there has to be a lis brought before a Court of competent jurisdiction. In Mumbai, that is the Court of Small Causes. That lis between the landlord and tenant must relate to the tenancy premises, questions of rent and questions of recovery of possession of the tenanted premises. Rent control legislation also provides that tenancies are heritable (this is in the context of residential tenancies). There is a structured transmission and devolution of residential tenancy interest stipulated in the Rent Act. This proceeds not according to the law of succession but according to the Rent Control law. A residential tenancy can never be the subject of a testamentary bequest. The tenant's heirs at law (as specified in the succession law that applies to their heirship) will, when succession opens, succeed to the tenancy although exclusive priority is given to a member of the tenant's family residing with the tenant at the time of his or her demise.1

7. This graphically illustrates the present landlords' problem. If that tenancy goes down to the next generation, a landlord, especially one who is not a landlord-in-residence, one i.e. living in the same building, or a landlord which is a body such as a trust, may never actually know of the deceased tenant's heirs. This becomes necessary for the landlord in order to recognise the heirs to begin with, or for inheritance, and also to enable the landlord to recover possession on the limited grounds available to a landlord under the Rent Control legislation.

8. What is the landlord to do if it simply does not know who the deceased occupant's or tenant's or licensee's heirs are? Can it be suggested that a landlord can never recover possession of such premises? What then in law would be the position of those premises? They cannot remain in perpetuity without a possessory right. If that right is denied to the landlord and there is no tenant nor any descendent of the tenant to claim it, those premises cannot be left in a legal or jurisprudential vacuum. Yet this is, in effect, what the impugned order of the Appellate Bench and the order of the Trial Court suggest. Both orders demand that the landlord should find some heir. They proceed on the footing that a tenant without an heir is an inconceivable situation. This is wholly unrealistic and there are several cases - perhaps most notably in the Parsi Zoroastrian community - where tenants of long standing pass on without leaving any lineal descendants or heirs at law. This is most certainly not unknown. A landlord in such a case cannot effectively be deprived of his property. It must be in the possession of some person and the landlord cannot be told that although he is the owner of the property, he cannot have it and it will remain forever to the last syllable of recorded time in this twilight zone of possession of neither landlord nor tenant. We are told that nature abhors a vacuum. So does law. I am not prepared to accept that there can ever be such an eventuality in rent law.

9. There are the provisions of Order XXII Rule 4 and 4-A of the Code of Civil Procedure 1908 ("CPC") and this is how they read.

ORDER XXII

4. Procedure in case of death of one of several defendants or of sole defendant.-(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the Suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff, was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of the Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved]

4-A. Procedure where there is no legal representative. -(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this rule, the Court-

(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.

(Emphasis added)

10. Rule 4-A was added by the 1976 Amendment. It provides a clue to this situation because the Rule specifically speak of the procedure to be followed 'where there is no legal representative'. Sub-rule 1 tells us that a Court may on the application of any party to the Suit proceed in the absence of a person representing the estate of the deceased or may appoint the Administrator General (which was why I have required Mr. Adake's presence in Court today) or an officer of the Court or any other persons to represent that estate. Sub-rule 2 is important because it tells us of the precautionary procedure to be followed by giving notice in such manner as the Court thinks fit and placing a duty on the Court to ascertain that the person, if any appointed, to represent the estate of the deceased does not have an interest adverse to the interest of the deceased.

11. I will return to this Clause briefly because I believe there are certain additional recommendations that ought to be made as steps to be followed by Courts in dealing with a situation like this, but before I proceed to that let me consider the authorities that are cited by Mr. Dani. The first is the decision of the Supreme Court in Balwant N Viswamitra & Ors v Yadav Sadashiv Mule (deceased by Lrs) & Ors. MANU/SC/0625/2004 : 2005(2) Bom CR 259 This was the case where a single Judge of this Court held a decree sought to be executed as void. The dispute was in respect to the land at village Kanjur. There was a tenancy in respect of this land which was terminated and an eviction proceeding was filed in the Court of Small Causes. Paragraph 2 of the judgment tells us that the deceased son of the original tenant had legal heirs but the Plaintiff did not know their names. The plaintiffs were living in Bhandup on the Mumbai Agra Road, not at or near the premises. Despite enquiries, the plaintiffs could not find information about the heirs. He, therefore, brought a suit against the heirs and legal representatives of the original tenant and produced a packet containing a written notice with the remark 'not known'. The submission before the Supreme Court was that the Bombay High Court was wrong in saying that the resultant decree was a nullity. There is a discussion about the background facts regarding service, but the main question set out in paragraph 9 of the judgment is whether a decree passed by the Trial Court could be said to be null and void? The Supreme Court drew the distinction between a decree that is void and one that is merely wrong, incorrect, irregular or not in accordance with law. It then went on to say that such a decree is not a nullity. This decision is cited by Mr. Dani on the limited aspect that even if such a suit is brought and decreed, the result is not a decree that is a nullity.

12. On the question of whether such a Suit at all lies, we should first look at the decision of a learned Single Judge of the Goa Seat of this Court in Shrikant Shambhu Volvoikar, for that is the decision that so very considerably influenced the Appellate Bench and the Trial Court. In Volvoikar, a Second Appeal was admitted specifically on the question whether a suit can be filed against unknown heirs. Ultimately the learned Single Judge held that the suit was liable to be dismissed and, as has been quoted by the Appellate Bench of the Court of Small Causes in the present case, held that a suit cannot be filed against unknown heirs because they cannot be served and the summons cannot be effected on a defendant whose address is unknown. On its own, and but for the fact that there are subsequent decisions, I would most respectfully have been inclined to disagree with this decision and to place the matter before the Hon'ble the Chief Justice for, if thought fit, a reference to a larger Bench. The entire reasoning in paragraph 12 seems to me to be incorrect and circular. It proceeds on the basis that there can be no suit without a defendant and that it is the obligation of the plaintiff to find some named defendant no matter how impossible that task. I am unable to find any discussion in this decision on Order XXII Rule 4A, though that was already introduced by amendment, and the entire discussion is only on the question of how service is to be effected. But that, as I said, begs the question. It seems to me rather pointless to insist that there must be a defendant because there must be service. It is more correctly stated the other way around, viz., that if there is a named defendant, he must be served and there cannot be a question of joining a defendant and not serving him with a notice or with a writ of summons, as the case may be.

13. The Volvoikar decision was cited before BR Gavai J in Yusuf Hussein v Kalawanti G Mehtani (deceased) through LRs Bhagwandas P Gandhi & Ors.2 In that case, there were concurrent findings decreeing a suit filed by the respondents dismissing an appeal filed by the applicant in the civil revision application, and directing an enquiry of mesne profits. The plaintiff was a member of a cooperative society. The plaintiff said that a leave and license was granted some time in 1983 and that the licensee/defendant failed to return possession, upon which the plaintiff brought suit impleading the original licensee as defendant No. 1, a legal heir of the licensee as defendant No. 2, and the applicant in the civil revision application as defendant No. 3. The last of these filed a counter suit for declaration of tenancy. The 3rd defendant's declaratory suit was dismissed. The licensor's suit was decreed. Both appeals were dismissed and the appellate bench held that the landlord was entitled to an enquiry of mesne profits. It is one of those magnificent ironies that should never be lost on us in this profession, that counsel who argue one proposition one day argue exactly the opposite the next. For it was none other than Mr. Dani who urged before Justice Gavai precisely the opposite of what he submits before me today. He said, fortunately quite wrongly as it turns out, that a suit against unknown legal heirs was untenable. I do not, I hasten to add, by this intend any criticism of Mr. Dani professionally or otherwise; this is one of the things that makes our system both robust and challenging. The other considerations regarding mesne profits and considerations of tenancy are not relevant. But paragraph 7 of Justice Gavai's judgment makes a specific reference to the judgment of Volvoikar. After considering the rival submissions on merits, in paragraph 14 Gavai J held that the decision of a learned Single Judge of this Court in VB Kapadia v Nirmala3 was more appropriate and that Volvoikar's case was one that could be distinguished on its peculiar facts. There, the defendants were never served by any ordinary mode of service but directly by substituted service. Thus, Volvoikar was held not to lay down any absolute proposition of law separated from its factual conspectus.

14. The issue came up again very recently before RG Ketkar J in Vasudha Dnyaneshwar Jawalkar v Naduben Devji Gada. 2016 SCC OnLine Bom 9708. This was an application under Section 115 of the CPC against a judgment and decree dated 20th December 2012 of the Court of Small Causes and an appellate order of 14th March 2016. Both Courts below had decreed the landlord's suit. Paragraph 3 of the decision in Vasudha Jawalkar tells us that when the plaintiff filed suit, it was brought against defendant No. 1 described as the legal heirs of the tenant, and it sought recovery on the ground that the tenant had died without leaving any heirs. The 2nd defendant was somebody who had entered the premises and was said to be in unauthorized occupation. The Courts below took heed of Order XXII Rule 4A of the CPC for the Trial Judge appointed the Additional Registrar to represent the estate of the deceased. One of the questions before this Court was the submission that the Suit itself was not maintainable without naming heirs. It was argued that a suit against a dead person was not maintainable. It was argued that Order XXII Rule 4A had no application because that only contemplates what is to be done if a party dies pending suit, i.e. pendente lite but not what is to be done if a potential defendant dies without heirs prior to the instituting of the suit. This submission is noted in paragraphs 7 and 17.

15. In paragraph 20, RG Ketkar J held:

"20. Though it is not necessary to deal with contention of Mr. Thorat based on Order 22, Rule 4-A in view of Balvant Vishvamitra case (supra), I have dealt this contention for sake of completion of the decision. Perusal of Order 22, Rule 4-A, extracted herein above, shows that it applies to a situation where during the pendency of the suit any party to the suit dies leaving behind no legal representative. It is common ground between the learned counsel for the parties that there is no identical provision dealing with the situation where the party has died before the institution of the suit leaving behind no heirs. If there is no such provision, I see no good reason why the Court cannot have recourse to Section 151 of C.P.C. and also can invoke the principles underlying in Order 22, Rule 4-A. The Court in such a situation will be justified in appointing Administrator-General or an officer of the court or such other person as he thinks fit to represent the estate of the deceased person for the purpose of the suit. In the present case, the learned trial Judge has appointed Addl. Registrar of the Court to represent the estate of defendant No. 1. Even on this ground also I do not find any merit in the submission of Mr. Thorat that suit is liable to be dismissed on the ground of maintainability and the decree passed by the trial Court is nullity and decree is executable."

(Emphasis added)

16. As the emphasized portion shows there is no good reason why the provisions of Order XXII Rule 4-A cannot be used or invoked in a situation like this or why we must have so rigid a line between a case where a defendant-tenant dies after the suit but without leaving heirs and a case where a tenant is only a potential defendant who dies without heirs before the suit is brought. This is the reason why I have noted the historicity of this legislation and pointed out the restrictions that it imposes on the rights of a landlord and the consequences of following too slavishly some procedural norm that only operates to oust substantive legal rights of property ownership. These rights are valuable. They are not to be underestimated. Apart from the sheer value, there are cases where locking up a property forever is against the public interest. A case in point might be that of the present Petitioners, the mandate of which Trust is to make available its property on license or tenancy basis as affordable housing to the poor and needy of a defined community. If premises after premises are to be held to be such as cannot be recovered by a landlord, then that entire charitable purpose is negated. This can never be a sound legal or jurisprudential basis.

17. In the decision of BR Gavai J there was a reference to a decision of a learned Single Judge of this Court in a case of 1961, VB Kapadia v Nirmala.4 That decision was of 22nd January 1962. A copy is furnished by Mr. Dani. A landlord sought to serve a notice in the name of the person who held the tenancy. The notice was refused and returned unserved. A few months later, the landlord filed an ejectment suit. He could not find the names of the legal representatives. He brought the suit in the name of unnamed legal representatives of the last recorded tenant. An application for pasting then followed, and this was granted. The suit resulted in an ex parte decree. An application for setting aside the ex parte decree followed some three years later, and it was urged that the summons was not properly served and, therefore, there was no proper decree. The learned Trial Judge concluded that service was not proper. In appeal it was held that the service was improper and the appellate order then noted that the decree was ineffective because the legal representatives of the tenant were not named in the suit. That was the order in challenge in revision. DV Patel J held that no notice was given by the tenant to the landlord of any heirs who might have an interest in the property. A notice by the landlord was refused. None of the heirs were shown to have had any interest in maintaining possession. On the issue of law, and on the question of the decree being a nullity, Patel J said:

"It is, however, said that the decree obtained against A.L. Chowdhary without naming the legal representatives is a nullity. Ordinarily, it is true that the heirs or legal representatives must and ought to be named in order to obtain a proper decree against a person or his estate. There are, however, circumstances which may necessitate a suit being filed in the manner it is done. In the present case the landlord could not find the names of the legal representatives and the notice which he sent was returned and 'refused'. His enquiries at the premises did not reveal the names of these called heirs and legal representatives. Those who were in possession of the property did not at any time give out the names of the heirs, nor did the executries communicate with the landlord. It is under these circumstances that the plaintiff was apparently compelled to file the suit in the manner he had filed. His attempt to serve the notice at the premises also failed. Therefore, the only course open to him was to obtain service under O. 5, rule 17 or under O. 5, r. 20 of the Civil Procedure Code. Though, therefore, I agree with Mr. Justice Naik as held by him in Civil Revision application No. 491 of 1989 (decided on 19/21st July 1960) that the heirs should and ought to be named. In view of the peculiar circumstances of this case I am not prepared to hold that the decree was a nullity."

(Emphasis added)

18. I note these prescient words "there are however circumstances which may necessitate a suit being filed in the manner it is done." That is precisely our situation today. It is true that where there are legal heirs they should and must be named, but this does not mean that a suit without naming heirs where none are found is not maintainable or that a decree in such a suit is a nullity.

19. So far as Volvoikar's case is concerned, in my view, the decision of Patel J was binding on that Court and it was not noticed. The absolute principle that is invoked by citing Volvoikar is, therefore, incorrect and that judgment cannot be held to have correctly set out an absolute principle in law that a suit against unnamed or unknown legal heirs is not maintainable. That finding would be contrary to the binding decision of Patel J in the case to which I have just referred and would, therefore, not be the correct position in law. The correct position in law on the contrary is that while ordinarily heirs must and ought to be named, there are circumstances in which they cannot be so named, and such a suit is maintainable and may result in a valid decree even for possession. This is the judgment of Patel J in VB Kapadia.

20. The correct position in law is thus the one enunciated in VB Kapadia and as reflected in the decision of BR Gavai J in Yusuf Hussain, and Ketkar J in Vasudha Dnyaneshwar Jawalkar. Such a suit without naming individual legal heirs and even without naming another defendant as an unlawful occupant cannot be said to be not maintainable, nor will it result in a decree that is a nullity.

21. What this does require is for Courts to be perhaps more vigilant than usual when confronted with a plaint that is framed in this fashion. To begin with, the Administrator Generals Act is always available and there can be no doubt of the applicability of this because Order XXII Rule 4-A itself speaks of the option of appointing the Administrator General. Mr. Adake tells me that his office has in several cases intervened where a tenant has passed away without leaving any heirs and this has been done to ensure that the interest of both sides are fairly protected. A Court can always appoint one of its officers to represent the estate. Ketkar J's decision that there is no material distinction in such a situation Order 22 Rule 4-A between a case where tenant-Defendant dies pendente lite and one where he dies without heirs before the suit is instituted is a decision that is not only one that I am in entire agreement with but which completely binds me. The facts of that case are very nearly indistinguishable from this one.

22. There is, however, one additional facet of the matter and this concerns an inevitable and unavoidable recognition of the manner in which families have dispersed not only across the city but across the country and across the world. There are tenants who continue to live here. The landlords may not know their heirs. Those heirs may not even be in the city or even in this country. They may well be overseas. Among Goan Christians and Parsis, this is not unknown. Families are scattered, with heirs living in Australia, USA, Canada and England and elsewhere. How would these heirs even know of a litigation being filed in the Court of Small Causes at Mumbai? A noticed pasted on the door of the tenanted premises is next to worthless. One on the notice board of that Court or of this Court is equally useless. What should we expect of a landlord? How could he or she possibly ascertain the address of an heir living in some far-flung place, in another jurisdiction? Equally, we must be mindful that these are valuable rights and their value is on both sides, to a landlord and to a tenant. Finally there is the inescapable recognition that the rent control legislation confers enforceable and valuable rights of inheritance on heirs. That is not something that can be wished away. It cannot be compromised. We must accept that a reasonable attempt must be made to give publicity in a meaningful manner of the instituting of such a suit. I will not attempt to suggest any rigid formula. A Court may insist for instance not only on pasting but on publication in newspapers in the vicinity of the tenanted premises. If the record indicates that the landlords knew that one of the heirs was overseas, then a Court may direct publication in a newspaper in that area also.

23. One possible affordable and effective answer would be to direct the Registry of this Court in its Information Technology Department to immediately report on the feasibility of providing a dedicated section to the Bombay High Court website where a notice of filing of such a suit can be made available. Alternatively, such a notice can be placed on the dedicated website, if there is one, of the Court of Small Causes since that is a Court of exclusive jurisdiction. The necessary particulars would have to be mentioned in that notice and there would have to be a system allowing a search and retrieval of notices, and a permanent archive of all notices. If placed on one or the other website, such notices are impervious to restrictions in time, for they are available around the clock and in perpetuity, and they also transcend all geographical and national boundaries. There is no cost involved in putting up a notice on a website and, therefore, there is no prejudice to a plaintiff-landlord seeking an ejectment. It is possible then for a Court to say that under its directions under Order XXII Rule 4-A sufficient notice has been given. It is for an heir of a tenant who knows of his tenancy to after all inform the landlord of the heirs. If the landlord does not know of the heirs of a deceased tenant, a landlord can always file a suit as I have indicated above, but before decreeing such a suit the Court is bound to take the necessary precautions. Giving adequate publicity to the institution of the suit in one or more of the modes that I have suggested is one way to go about it.

24. The Deputy Registrar, IT of this Court will consider the proposal and place a note before the Computer Committee of this Court for further action.

25. In the meantime, the Court of Small Causes, Mumbai and all Courts governed by the Maharashtra Rent Control legislation, to all of which a copy of this order is to be sent by the Registrar Judicial I, will consider appropriate steps on a case-to-case basis whenever such a suit is attempted to be filed.

26. No Court is bound to accept at face value a statement of a landlord that he does not know the heirs of a tenant. A Court may well require a landlord, having regard to the facts of the case, the nature of the tenancy, the place where the premises are located, the family relations of the tenant and other factors, to join a particular person. The Court may appoint the Administrator General or other officer of that court, or direct the landlord plaintiff to take other reasonable steps. The purpose of this judgment is not to indicate that the Courts must decree such suits but only to hold that it is incorrect as a matter of law to say that such a suit is per se not maintainable and cannot be decreed without the resultant decree being a nullity.

27. In the present case, both the Appellate Order and the Trial Court order are set aside. The Suit is held to be maintainable. I may note for completeness that in this case the Plaintiff sought to join the Registrar of the Court of Small Causes to represent the estate of the deceased licensee. This order was rejected by the Trial Court, in my view quite wrongly. At a minimum that application ought to have been allowed and the Suit allowed to proceed.

28. The Trial Court will list the matter for directions on 2nd May 2018 and will then consider afresh whether further directions are required in the facts and circumstances of the case before proceeding further with the matter.

29. A copy of the Judgment will be sent to the Chief Judge, Court of Small Causes and all Principal District Judges in the State of Maharashtra.

30. The Writ Petition is disposed of in these terms.



1Throughout this judgment I have used the word tenant; by this I mean tenant or licensee and this is how the judgment should be read.

2Civil Revision Application No. 330 of 2013 decided on 25th April 2013.

3Civil Revision Application No. 5423 of 1961, decided on 22nd January 1962.

4Civil Revision Application No. 5423 of 1961, decided on 22nd January 1962.



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