High Court of Bombay Dismisses Revision by Indian Oil Corporation in Eviction Suit — Concurrent Findings of Tenancy Termination and Ownership Upheld. Lease of Open Land Not Protected Under Maharashtra Rent Control Act, 1999; Suit Maintainable Without Probate as Will Was Not Required to Be Proved in Eviction Proceedings.

High Court: Bombay High Court Bench: BOMBAY In Favour of Prosecution

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2026-05-18 14:57:52

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Case Note & Summary

The case involves a civil revision application filed by Indian Oil Corporation Limited (IOCL) against the concurrent judgments of the Small Causes Court and its Appellate Bench decreeing the suit for eviction filed by the respondents (plaintiffs) under Section 41 of the Presidency Small Cause Courts Act, 1882. The suit premises is an open plot of land admeasuring 2100 sq. yards in Kurla, Mumbai, originally owned by Dr. Manek Billimoria, who leased it to IOCL for 20 years by an indenture dated 18 May 1968. After Dr. Billimoria's death, his wife Smt. Sheroo Billimoria executed a deed of rectification extending the lease to 30 years ending on 12 October 1997. Smt. Sheroo Billimoria executed a Will on 18 November 1997 bequeathing the property to the plaintiffs, and she died on 26 May 1999. The plaintiffs terminated the tenancy by notice dated 27 November 2002 and filed the suit for possession and mesne profits. The suit was verified by Mr. Mukesh Parekh as constituted attorney of the plaintiffs. IOCL contested the suit disputing the plaintiffs' ownership and contending that the suit was not maintainable without probate of the Will. The Trial Court decreed the suit, and the Appellate Bench dismissed IOCL's appeal. In revision, IOCL argued that the courts below erred in holding that the plaintiffs had proved their title without probate, that the constituted attorney could not verify the plaint or give evidence, and that the suit was maintainable under the MRC Act. The High Court held that the MRC Act does not apply to open lands, so the tenancy was governed by the Transfer of Property Act and the Presidency Small Cause Courts Act. The court further held that in an eviction suit, the plaintiff need not prove title beyond reasonable doubt; it is sufficient to show better title than the defendant. The Will was proved as a document under the Evidence Act, and probate was not required as the plaintiffs were not asserting a right as executors or legatees in a court of probate. The constituted attorney had personal knowledge and could verify the plaint and depose. The concurrent findings of fact were not perverse, and no jurisdictional error was shown. The revision was dismissed with costs.

Headnote

A) Civil Procedure - Revision under Section 115 CPC - Scope of Interference - Concurrent findings of fact cannot be interfered with unless there is perversity or jurisdictional error - The High Court in revision does not act as a second appellate court and cannot re-appreciate evidence unless the finding is based on no evidence or is legally unsustainable (Paras 1, 27).

B) Rent Control - Applicability of Maharashtra Rent Control Act, 1999 - Open Land - Lease of open land is not protected under the MRC Act as it applies only to buildings and premises - The suit for eviction of a tenant of open land is governed by the Transfer of Property Act, 1882 and the Presidency Small Cause Courts Act, 1882 (Paras 2, 10).

C) Succession - Probate - Requirement under Section 213 of Indian Succession Act, 1925 - Probate is necessary only when a right as executor or legatee is asserted in a court of law - In an eviction suit, the plaintiff need not prove title beyond reasonable doubt; it is sufficient to show better title than the defendant - Non-production of probate does not bar the suit (Paras 14-16).

D) Civil Procedure - Constituted Attorney - Authority to Verify Plaint and Give Evidence - A constituted attorney can verify the plaint and depose on behalf of the principal if he has personal knowledge of the facts - The attorney's evidence is admissible under Order 3 Rule 1 and Order 18 Rule 4 CPC (Paras 17-20).

E) Evidence - Proof of Will - In a suit for eviction, the Will under which the plaintiff claims title need not be proved in the manner required for probate; it can be proved as a document under the Indian Evidence Act, 1872 - The courts below rightly held that the Will was duly proved (Paras 21-23).

Issue of Consideration

Whether the concurrent findings of the courts below regarding termination of tenancy, ownership of plaintiffs, and maintainability of suit without probate are perverse or suffer from jurisdictional error warranting interference under Section 115 CPC.

Final Decision

The High Court dismissed the Civil Revision Application with costs, upholding the concurrent decrees of eviction. The court held that the MRC Act does not apply to open lands, probate was not required, the constituted attorney had authority, and the concurrent findings were not perverse.

Law Points

Section 115 CPC
Section 41 Presidency Small Cause Courts Act 1882
Maharashtra Rent Control Act 1999
Section 213 Indian Succession Act 1925
Order 3 Rule 1 CPC
Order 6 Rule 14 CPC
Order 18 Rule 4 CPC
Evidence Act 1872

Case Details

2026:BHC-AS:18017

Civil Revision Application No.92 of 2025

2026-04-17

Sandeep V. Marne, J.

2026:BHC-AS:18017

Mr. Chirag Mody with Mr. Sunil Gangan, Mr. Swapnil Shikhare and Mr. Manav Chetwani i/b. M/s. RMG Law Associates for the Applicant. Mr. Arif Bookwala, Senior Advocate with Ms. Mahek Bookwala, Mr. Umang Mehta and Ms. Trisha George i/b. M/s. Avyaan Legal for the Respondents.

M/s. Indian Oil Corporation Limited

Mrs. Perviz Khushroo Patel and Ors.

Nature of Litigation

Civil revision application against concurrent decrees of eviction passed by Small Causes Court and its Appellate Bench.

Remedy Sought

IOCL sought to set aside the judgment and order dated 4 January 2025 passed by the Appellate Bench of the Small Causes Court dismissing its appeal and confirming the eviction decree.

Filing Reason

IOCL challenged the concurrent findings of the courts below on grounds of lack of ownership proof without probate, maintainability of suit by constituted attorney, and applicability of MRC Act.

Previous Decisions

The Trial Court (Small Causes Court) decreed the suit on 4 January 2017; the Appellate Bench dismissed IOCL's appeal on 4 January 2025.

Issues

Whether the suit for eviction of a tenant of open land is maintainable under the Presidency Small Cause Courts Act, 1882 and not barred by the Maharashtra Rent Control Act, 1999? Whether the plaintiffs could maintain the suit without obtaining probate of the Will of Smt. Sheroo Billimoria? Whether the constituted attorney could validly verify the plaint and give evidence on behalf of the plaintiffs? Whether the concurrent findings of fact are perverse or suffer from jurisdictional error warranting interference under Section 115 CPC?

Submissions/Arguments

IOCL argued that the suit was not maintainable as the MRC Act applies to open lands and the tenancy was protected. IOCL contended that the plaintiffs failed to prove title as they did not obtain probate of the Will, and the Will was not duly proved. IOCL submitted that the constituted attorney had no authority to verify the plaint or depose as he was not a director of the plaintiff company. IOCL argued that the findings of the courts below were perverse and based on no evidence.

Ratio Decidendi

In a revision under Section 115 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The Maharashtra Rent Control Act, 1999 does not apply to open lands, so the tenancy is governed by the Transfer of Property Act and the Presidency Small Cause Courts Act. In an eviction suit, the plaintiff need not prove title beyond reasonable doubt; it is sufficient to show better title than the defendant. Probate under Section 213 of the Indian Succession Act is not required when the plaintiff is not asserting a right as executor or legatee in a court of probate. A constituted attorney with personal knowledge can verify the plaint and give evidence.

Judgment Excerpts

The Applicant- Indian Oil Corporation Limited (IOCL), a public sector company, has invoked revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 questioning the correctness of the judgment and order dated 4 January 2025 passed by the Appellate Bench of the Small Causes Court dismissing (P) Appeal No.67 of 2017 and confirming the judgment and order dated 4 January 2017 passed by the Small Causes Court in T.E. & R. Suit No.69/76 of 2003. After enactment of Maharashtra Rent Control Act, 1999 (the MRC Act), which does not apply to open lands, Plaintiffs terminated the tenancy vide notice dated 27 November 2002. Probate is necessary only when a right as executor or legatee is asserted in a court of law. In an eviction suit, the plaintiff need not prove title beyond reasonable doubt; it is sufficient to show better title than the defendant.

Procedural History

The plaintiffs filed T.E. & R. Suit No.69/76 of 2003 in the Small Causes Court, Bombay, for eviction and mesne profits. The Trial Court decreed the suit on 4 January 2017. IOCL appealed to the Appellate Bench of the Small Causes Court, which dismissed the appeal on 4 January 2025. IOCL then filed Civil Revision Application No.92 of 2025 in the High Court of Bombay, which was dismissed on 17 April 2026.