Whether eviction order secured by original tenant against landlord is binding against subsequent tenant?

 On 16.03.2012 Fehmida secured an order for repossession. But by then, Gagan was put in possession of the property. In other words, Fehmida's order for restoration of possession was against the landlord. And the landlord, before he suffered the order, put Gangan in possession of the property. Can we say Gangan's possession is independent of the eviction proceedings the landlord had initiated? 

26. True, as Gangan contends, a judgment debtor can be, as Section 2(10) defines, any person against whom a decree or an order capable of execution is passed. According to him, in Fehmida's Misc. Application, the Small Cause Court passed an order capable of execution against the landlord. And Gangan claims his right through the landlord, so he must be treated as a judgment debtor under Order XXI, Rule 97 of CPC. But that must be only from the date Fehmida filed the application. In other words, from that date onwards, the lis pendens principle can be imported. 

35. First, registration of a plaint is not a sine qua non for the institution of a suit, but the presentation is. Second, presentation connotes proper presentation. Third, improper presentation is curable, and once the defect is cured, the representation relates back, as Vidyawati Gupta has held, to the date of the original presentation. Pithily put, even before Gangan could enter into a lease agreement, the landlord had a deemed service of notice because on 18.01.2010 he refused to take notice from the Court's Bailiff.

So it is time I answered the questions I set out above.

The Answers:

(a) Does the order the original tenant has secured against the landlord bind the subsequent tenant who is entirely unaware of the previous court proceedings?

A: Yes, it does. The subsequent tenant, a victim he may have been, must yield to the previous tenant, whose rights remain unaffected by the landlord's sharp tactics.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11022 of 2012

Decided On: 28.06.2019

 Fehmida Usman Gani Shaikh  Vs.  Maqbool Munaf Gagan

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(1) MHLJ 733

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Provisions of CPC regarding place of institution of suit

S 16 of CPC:- Suits are to be instituted where immovable property is situated.

S 19 of CPC:- Where a suit  is for compensation for wrong done  to the  person or to movable property ,if wrong was done within the local limits of jurisdiction of one court and defendants resides,or carries on business or personally works for gain within the local limits of jurisdiction of another court,suit may be instituted at the option of plaintiff in either of said courts.

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Whether subsequent registration of partnership firm will cure defect in institution of suit?

The question as to whether the subsequent registration of the firm would cure the initial defect in the filing of the suit arose for consideration in D.D.A. v. Kochhar Construction Work and Anr. MANU/SC/1279/1998 : (1998)8SCC559 . This Court held that in view of the clear provision of the Act it was not possible to subscribe to the view that subsequent registration of the firm may cure the initial defect, because the proceedings were ab initio defective as they could not have been instituted since the firm in whose name the proceedings were instituted was not a registered firm on the date of the institution of the proceedings. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4092 of 1998

Decided On: 07.11.2006

 Purushottam and Anr.

Vs.

Shivraj Fine Art Litho Works and Ors.

Hon'ble Judges/Coram:

B.P. Singh and Altamas Kabir, JJ.

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Whether blanket authority can be given to particular director to institute suit or proceeding?

The essential requirement of this provision is that the Company which is a juristic person must itself decide to sue.

Once that is done, it would authorise one of its Directors who is the agent of the Company or its principal officers the Secretary of the Company or the Managing Director to file the Suit. The suing in each case is a separate act. The Company acts only through its meetings. Hence the Board of Directors in the day to day management of the company must decide and resolve to sue or not to sue. A blanket authority cannot be given to a particular Managing Director or Director to sign the papers and documents, including the power to sue. The power to sue requires application of mind upon the particular cause of action. It requires the Company to pay the requisite Court fee. It requires the Company to be represented by a legal officer being an Advocate of the Court. It is an act which, therefore, is not a part of the day to day management of the Company. A Company would decide in a given case upon legal advice or otherwise whether or not it would sue upon a given cause of action. Such exercise is imperatively required to be performed if the intention of the Company, which is only a juristic person, is to be deciphered. That act, of course, may be undertaken even after the filing of the Suit and ratified by the Board as all other acts of management. However, the seminal requirement is to see the act of the Company though its Board or members (dependent upon whether the resolution is passed in the Board meeting or a general meeting) or is given by the Company itself (under its Articles of Association).

Bombay High Court

M/S.Hari Shree Enterprises vs M/s vikas housing ltd on 19 March, 2009

Bench: R. S. Dalvi

Citation: 2009(4) ALLMR 247

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Whether suit is instituted when application of condonation of delay is filed?

In the present case, the civil suit having been presented beyond 
the prescribed period of limitation, an application under under Section 5 of the 
Limitation Act was filed praying for condonation of delay in filing the suit which 

came to be rejected and consequentially, the civil suit is also dismissed.  
Sections   143(4)   and   143(5)   of   the   Maharashtra   Land   Revenue 
Code read as follows :­
it set aside or modified. 
“143(4)   Any person who is aggrieved by a decision of the  
Tahsildar under this section may, within a period of one year  
from the date of such decision, institute a civil suit to have  
143(5) Where   a   civil   suit   has   been  instituted  under  
sub­section   (4)   against   the   Tahsildar's   decision,   such  
decision shall not be subject to appeal or revision.”      
      (Emphasis supplied)
Thus, the decision of the Tahsildar can be challenged by filing the 
civil   suit   and   if   the   civil   suit   is   “instituted”   under   Section   143(5)   of   the 
Maharashtra Land Revenue Code challenging the Tahsildar's decision, then the 
decision of the Tahsildar cannot be challenged in appeal or revision under the 
provisions of the Maharashtra Land Revenue Code.  The word “institute” as per 
Black's Law Dictionary means “to begin or start; commence.”     Thus, the bar 
under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal 
or revision under the provisions of the Maharashtra Land Revenue Code would 
apply   only   if   the   civil   suit   has   been   “instituted”   under   Section   143(4)   of   the 

Maharashtra Land Revenue Code which means that if the civil suit is filed.   In 
the present case, the civil suit having been filed after the period of limitation, the 
application praying for condonation of delay was filed.   It is established practice 
that until the delay is condoned, the civil suit is not registered and the civil Court 
cannot look into the civil suit.   In these facts, it cannot be said that the civil suit 
was “instituted” by the respondent no.5 and his wife as per Section 143(5) of the 
Maharashtra Land Revenue Code.  Consequentially, the bar created by Section 
143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision 
to challenge the decision of the Tahsildar will not apply.  In these facts, it cannot 
be said that the civil suit was instituted as per Section 143(4) of the Maharashtra 
Land Revenue Code, 1966.
Shri Mirza, the learned advocate for the petitioners submits that the 
application   filed   by  the   respondent  no.5   and   his  wife  under  Section  5   of  the 
Limitation Act is a part and parcel of the civil suit and therefore, it has to be 
treated that the civil suit was instituted as contemplated by Section 143(4) of the 
Maharashtra Land Revenue Code.   The submission as made on behalf of the 

petitioners   is  misconceived   and   contrary   to   the   established   principles   of  law. 
The application praying for condonation of delay can never be part and parcel of 
the   civil   suit   and   the   civil   suit   is  not   registered   until   and   unless   the   delay   is 
condoned.   It is the settled law that Court gets its jurisdiction to entertain and 
decide the proceedings before it, only after the delay is condoned and till that 
time the Court does not get the jurisdiction to entertain the proceedings. 
In view of the above, I find no reason to interfere with the order 
passed   by   the   learned   Additional   Collector   remanding   the   matter   to   the 
Sub­Divisional Officer for fresh enquiry in the matter.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2977/2012

Shri Nago Hari Zangte, V State of Maharashtra, 
  
CORAM  :  Z.A. HAQ, J.
DATE  :     17.11.2014
Citation;2015(3) MHLJ 381

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