Bombay High Court
Anil Nair vs Anjana Viren Shah And Anr on 13 January, 2023
Author: R.I. Chagla
Bench: R.I. Chagla
FAST-14912-21-Jt.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (ST.) NO. 14912 OF 2021
WITH
INTERIM APPLICATION NO. 3065 OF 2021
Anil Nair ...Appellant
Versus
Anjana Viren Shah And Anr. ...Respondents
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Mr. Pravin Patel for the Appellant.
Mr. Pradeep Thorat a/w Mr. Soura Subha Ghosh a/w Mr. Anirban
Sen a/w Ms. Sanaya Patel i/by Indus Law for the Respondent No.1.
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CORAM : R.I. CHAGLA J
Reserved on : 22 December 2022
Pronounced on : 13 January 2023
JUDGMENT :
1. The First Appeal has been taken up for final hearing at the admission stage by consent of parties.
2. Heard Mr. Pravin Patel, learned Counsel for the Appellant and Mr. Pradeep Thorat, learned Counsel for the 1/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc Respondent No. 1.
3. The First Appeal challenges the judgment and decree of the learned Judge (C.R. No.9), City Civil Court at Mumbai by which Suit No. 753 of 2016 was decreed against the Appellant/Defendant No. 1 with costs.
4. The operative part of the said order dated 6th May 2021, which is impugned in the First Appeal reads as under:-
" Suit is decreed against defendant No. 1 with costs as under;
Defendant No. 1 and/or anybody claiming through him is hereby directed to remove all his belongings, articles and things from the suit premises within a period of four months from today.
After the removal of all the belongings, articles and things as directed above, defendant No. 1 is perpetually restrained from entering into and/or remaining upon the suit premises.
Plaintiff is entitled to withdraw the amount deposited in the court by defendant No. 1 as per order dated 16.11.2016 passed in Notice of Motion No. 1629 of 2/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc 2016, after expiry of appeal period.
Suit against defendant No. 2 is dismissed.
A decree be drawn up accordingly."
5. The Respondent No. 1/original Plaintiff's case in the Plaint is briefly stated as under:-
(i) Mukund Limited was the erstwhile owner of the Flat No. 5A of the Building known as Sunita at 9-11, Ridge Road, Malbar Hill, Mumbai - 400 006. The Flat No. 5A was inclusive of the suit premises which comprises of a staff quarter admeasuring approx. 80 sq.ft. (carpet area) situated at Room No. 15, 3rd Floor, Staff Quarters, annexed to Suneeta Building.
There was an adjoining flat bearing Flat No. 6A which was interconnected with Flat No. 5A and a contiguous part of residential duplex flat in the said building. Mukund Limited was also the erstwhile owner of Flat No. 6A.
(ii) Flat No. 6A was purchased by the Respondent No. 1/ 3/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc original Plaintiff from Mukund Limited vide Agreement dated 6th January 1975 which is duly registered with the Office of Sub-Registrar of Assurances at Mumbai whereas Flat No. 5A was purchased by the Respondent No. 1/original Plaintiff from Mukund Limited vide Deed of Transfer dated 26th March 2014 and which is also duly registered with the Office of Sub-Registrar of Assurances at Mumbai.
(iii) The family of the original Plaintiff comprised of her husband late Viren Shah and her daughter who have been in undisputed use, occupation and possession of Flat No. 5A and Flat No. 6A since 10th June 1971. The late Viren Shah as the then Chairman and whole-time Director of Mukund Limited was given use and occupation of the 5th and 6th Floor Flats along with full-time Driver and Chauffeur at his disposal.
(iv) In the year 1999, Viren Shah was appointed as 4/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc Governor of State of West Bengal and had to retire as whole-time Director and Chairman of Mukund Limited with effect from 1st December 1999. As part of retirement benefits, Mukund Limited approved and continued Viren Shah's occupation of Flat No. 5A with suit premises along with car with driver for his exclusive use as well as use of his wife viz. the original Plaintiff. These benefits have been expressly mentioned in a letter dated 28th February 2000 addressed by Mukund Limited to Viren Shah and which benefits were for his lifetime. The said letter dated 28th February 2000 is annexed at Exh.D to the Plaint.
(v) In or around 2003, Mukund Limited deputed the Appellant/original Defendant No. 1 through Respondent No. 2/Original Defendant No. 2 to cater as chauffeur/driver for Viren Shah and his family. Viren Shah expired on 9th March 2013 and till his demise, the original Defendant No. 1 was rendering his services to Viren Shah as a servant and occupying 5/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc the suit premises. This continued after the demise of said Viren Shah till about 26th March 2014.
(vi) The salary and entitlements of the Original Defendant No. 1 were paid by Mukund Limited through original Defendant No. 2.
(vii) Mukund Limited for the sake of convenience of said Viren Shah and his family permitted the use of the suit premises by the original Defendant No. 1 as chauffeur/driver so that the original Defendant No. 1 would be available to the family of the said Viren Shah at all times.
(viii) The management of Mukund Limited had conveyed to the original Plaintiff that in the year 2014 they will be withdrawing the services of the chauffeur/driver viz. original Defendant No. 1 and that the original Plaintiff should appoint her own driver.
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(ix) The original Plaintiff had enquired with the original Defendant No. 1 as to whether he would be interested in being in the employment of the original Plaintiff as driver on the same terms and conditions as provided by Mukund Limited. The original Defendant No. 1 had demanded various terms and conditions as well as additional salary which was not acceptable to the original Plaintiff.
(x) There were thus disputes between the original Plaintiff and original Defendant No. 1 with regard to his continuation. The original Defendant No. 1 had absented himself from working without prior intimation to the original Plaintiff as well as arriving late for the work. The original Plaintiff called upon the original Defendant No. 1 to cease his use and entry upon the suit premises from 1st April 2014.
(xi) The original Defendant No. 1 refused to cease his legal use of the suit premises and continued to illegally enter thereupon.
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(xii) In view thereof, the original Plaintiff approached Mukund Limited and original Defendant No. 2 and called upon them to ensure that the original Defendant No. 1 ceased entering upon the suit premises and/or illegally using the same.
(xiii) The original Defendant No. 2 intimated original Defendant No. 1 that he was being transferred from the suit premises to another residential premises at Juhu and called upon him to vacate the suit premises provided by Mukund Limited. In this connection the original Defendant No. 2 addressed letter dated 2nd May 2014 to the original Defendant No. 1 which is annexed at Exh.G to the Plaint.
(xiv) The original Plaintiff was handed over the letter dated 14th May 2014 addressed by the original Defendant No. 2 to the original Defendant No. 1 calling upon the original Defendant No. 1 to cease entering upon and using the suit premises, which he had been permitted to use temporary during the 8/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc term of his appointment as driver. Letter dated 14th May 2014 is annexed at Exh.H to the Plaint.
(xv) The Original Defendant No. 1 continued with his illegal use of the suit premises and the original Defendant No. 2 had to address another letter dated 30th May 2014 to the original Defendant No. 1 calling upon him to handover the suit premises and assigning him new quarters for his duties at Juhu House. Letter dated 2nd May 2014 is annexed at Exh.I to the Plaint.
(xvi) Original Defendant No. 1 filed police complaint with Malabar Hill Police Station dated 5th June 2014, wherein false statements were made. However, original Defendant No. 1 in his complaint admitted that he was in an employment of original Defendant No. 2 and the suit premises are owned by the original Plaintiff. Police complaint dated 5th June 2014 is annexed at Exh.J to the Plaint.
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FAST-14912-21-Jt.doc (xvii) The original Defendant No. 2 attended the Malabar Hill Police Station on 19th December 2014 and filed complaint for illegal use of original Defendant No. 1 of the suit premises. The complaint and English translation are annexed at Exh.K and Exh.K1 of the Plaint.
(xviii) The original Plaintiff in view of threats of the original Defendant No. 1, who demanded that use of the suit premises should not be disturbed and/or interfered with by the original Plaintiff and/or the original Plaintiff's family has filed police complaint with Malabar Hill Police Station on 18th March 2015 which is annexed at Exh.L to the Plaint.
(xix) It is the original Plaintiff's case that as she is senior citizen and the original Defendant No. 1 was taking advantage of her advanced age to continue the use of the suit premises without paying anything towards maintenance of the suit premises. The maintenance bills along with the electricity bills, which have been 10/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc paid by the original Plaintiff, have been annexed at Exh.M1 to Exh.M4 and Exh.N1 to Exh.N5 to the Plaint.
(xx) The original Plaintiff accordingly, filed the Suit on 8th March 2016 for perpetual injunction of this Court against original Defendant No. 1 from entering into and/or remaining upon the suit premises or any part thereof. Further, relief has sought for mandatory injunction directing the original Defendant No. 1, his relatives and/or persons claiming through him to remove all his belongings, articles and things from the suit premises. Other consequential prayers have been sought with regard to deposit of the monthly amount of Rs. 25,000/- by the original Defendant No. 1 towards his unauthorised user of the suit premises until his cessation thereof.
6. The case of the original Defendant No. 1 in the Written Statement is as follows :-
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(a) The original Defendant No. 1 was inducted in the suit premises in the year 2003 by said Viren Shah who appointed him as his driver/personal bodyguard. The said Viren Shah required the original Defendant No. 1 to deposit an amount of Rs.
12,00,000/- towards letting the suit premises to him and also to pay an amount of Rs. 2,300/- per moth towards rent of the suit premises inclusive of electricity and water charges. The original Defendant No. 1 had paid rent to the said Viren Shah till the end of year 2012 being approx. an amount of Rs. 14,72,000/-.
(b) The original Defendant No. 1 had never worked for Mukund Limited and/or original Defendant No. 2 in the year 2003.
(c) The original Plaintiff was not the owner of Flat No. 5A as well as the suit premises in the year 2003 and she had purchased Flat No. 5A on 26th March 2014. 12/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 :::
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(d) The original Defendant No. 1 relied upon conformation letter dated 3rd June 2005 from the office of the said Viren Shah for obtaining gas connection in the suit premises in the name of original Defendant No. 1. Further, original Defendant No. 1 has relied upon other correspondence issued by the office of the said Viren Shah for obtaining ration card. These have been annexed at Exh.A and Exh.B to the Written Statement. The gas receipt has also been relied upon by the original Defendant No.1 which is annexed at Exh.C to the Written Statement. Exh.D is a copy of the ration card issued in the name of the original Defendant No. 1. The original Defendant No.1 also relied upon Aadhar Card and ration card issued by the Government Authority which are annexed at Exh.E and Exh.F to the Written Statement.
(e) The original Defendant No. 1 has stated that in view of his not having knowledge of legal formalities as he is 9th standard passed and based on his faith in the 13/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc said Viren Shah, he did not insist on issuance of rent receipts as well as any kind of agreement from late Viren Shah whilst making payment of rent in respect of the suit premises.
(f) The original Defendant No. 1 claims that an arrangement was made by the said Viren Shah with original Defendant No. 2 that as the original Defendant No. 1 was in service of the original Defendant No. 2, the original Defendant No. 2 would not deduct house rent allowance from the salary of original Defendant No. 1. This is in view of the original Defendant No. 1 occupying the suit premises as tenanted premises and paying rent directly to the said Viren Shah.
(g) The original Defendant No. 1 has further contended that the original Defendant No. 2 was brought by the said Viren Shah in the year 2007 as a contractor just for a legal formality.
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(h) The original Defendant No. 2 terminated the services of the said Viren Shah on 13th August 2014 at the instance of the original Plaintiff. This is inspite of the original Defendant No. 1 being a tenant of the original Plaintiff upon demise of the said Viren Shah.
(i) The original Defendant No. 1 has raised issue of jurisdiction in view of his claiming to be tenant of the suit premises and for recovery of the tenanted suit premises only the Small Causes Court of Bombay has jurisdiction.
(j) The original Defendant No. 1 has contended that he is in lawful possession of the suit premises as tenant thereof and not rank trespasser as alleged.
7. Based on these pleadings, the learned Judge of the City Civil Court at Mumbai had in the impugned judgment and order dated 6th May 2021 framed issues and corresponding findings, which are reproduced below. :-
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FAST-14912-21-Jt.doc ISSUES FINDINGS (1)Whether the plaintiff proves that the ....Proved that defendant No. 1 had been using the suit defendant No. 1 is premises since 2003 as a servant/driver using the suit provided to the plaintiff and earlier to her premises as a husband by Mukund Limited, through servant/driver defendant No. 2? provided to the husband of plaintiff by Mukund Limited.
(2)Whether the plaintiff proves that the services of defendant No. 1 was terminated? ....Proved. (3)Whether the plaintiff is entitled for the perpetual injunction thereby restraining the defendant No. 1 from entering into and/or remaining upon the suit premises? ....Yes. (4)Whether the plaintiff proves that she is entitled for mandatory injunction thereby directing the defendant No. 1 to remove all his belongings and other articles from the suit premises? ....Yes.
(5)Whether the defendant proves that he was in possession of suit premises since 2003 being a tenant of Mr. Viren Shah, deceased husband of plaintiff? ....Not proved.
(6)Whether this court has jurisdiction to try, entertain and decide the suit? ....Yes. (7)As to who is entitled for the amount ordered 16/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc to be deposited and/or deposited by the ....Plaintiff is defendant No. 1 in the Court? entitled. (8)What order and decree? ....As per final order.
8. Points for determination in the First Appeal are as under:-
1) Whether the Plaintiff proves that the original Defendant No. 1 was using the suit premises since 2003 as servant/driver which had been provided to the said Viren Shah, husband of the original Plaintiff, by Mukund Limited through the original Defendant No. 2?
2) Whether the original Plaintiff proves that the service of original Defendant No. 1 was terminated?
3) Whether the learned Judge of the City Civil Court was correct in holding the above two issues in the affirmative?17/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 :::
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4) Whether the City Civil Court has jurisdiction to try, entertain and decide the Suit?
5) Whether the original Plaintiff is entitled for perpetual injunction as well as mandatory injunction as prayed for in the Plaint filed before City Civil Court restraining the original Defendant No. 1 from entering into and/or remaining upon the suit premises and for removal of his belongings and other articles from the suit premises.
Re : Point for determination Nos. 1, 2 and 3 :-
9. With regard to point for determination No. 1, the contention of the Respondent No. 1/original Plaintiff that Mukund Limited was the erstwhile owner of the suit premises being servants quarter attached to Flat No. 5A described above has not been disputed by the original Defendant No. 1. This is further established from the documents on record which includes the Deed of Transfer dated 26th March 2014 duly registered with the Office of Sub- Registrar of Assurances at Mumbai. The Flat No. 5A with the suit 18/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc premises attached to it was purchased by the original Plaintiff from Mukund Limited on 26th March 2014. Accordingly, the contention of the original Defendant No. 1 that he was inducted into the suit premises by the said Viren Shah in the year 2003 cannot be accepted, as the said Viren Shah was not the owner of the suit premises in the year 2003. Further, it is clear from the letter dated 28th February 2000 addressed by Mukund Limited to the said Viren Shah that several benefits were continued to be provided to the said Viren Shah after his retirement as whole-time Director and Chairman of Mukund Limited with effect from 1st December 1999, and which were for his lifetime. As a part of these benefits, the Flat No. 5A together with the suit premises along with car with driver was provided to the said Viren Shah and his wife, the original Plaintiff for exclusive use.
10. It is an admitted position that the said Viren Shah was appointed as Governor of the State of West Bengal in the year 1999 and that he was as Governor residing at Calcutta till December 2004. There is no material produced by the original Defendant No. 1 to show that he was inducted as tenant in the suit premises by the said Viren Shah in the year 2003. The documents which have been relied upon by the original Defendant No. 1 for showing that he was 19/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc residing in the suit premises include gas connection, ration card for which the office of the said Viren Shah had addressed correspondence for obtaining the same i.e. to the dealer of H.P.C.L. and to the Rationing Authority in the year 2005. The original Defendant No. 1 has in fact admitted in the cross examination that he had no document to show that he was residing in the suit premises in the year 2003-04. In the cross examination of original Defendant No. 1, he has not disputed that the said Viren Shah was residing with the original Plaintiff in Calcutta in the year 2003-04, though they were visiting Mumbai. Thus, it is clear from the evidence as well as documents on record that the original Defendant No. 1 had come into the suit premises in the year 2005.
11. The original Plaintiff who had deposed that the Defendant No. 1 was provided as driver to her husband, the said Viren Shah by Mukund Limited and for which purpose, the original Defendant No. 1 was allowed by Mukund Limited to use the suit premises. Mukund Limited has provided the services of original Defendant No. 1 as driver initially through the contractor M/s. Shree Travels and thereafter, through the original Defendant No. 2 who were catering services of chauffeur/driver. Further, the original 20/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc Defendant No. 1 in evidence has not disputed the correspondence sent on 28th February 2000 by which Mukund Limited continued the benefits with the said Viren Shah post his retirement as whole-time Director and Chairman with effect from 1st December 1999 and which included continuation and occupation of the premises namely Flat Nos. 5A and suit premises forming part thereof. Further, car with driver was also continued for exclusive use of the said Viren Shah and the original Plaintiff.
12. The witnesses of the original Plaintiff included original Defendant No. 2-Praveen Shetty, sole proprietor of M/s. United Associates, who deposed that he had provided drivers and manpower services to Mukund Limited since the year 2000. Further, that pursuant to the contract order dated 2nd April 2008 was issued by Mukund Limited in favour of the original Defendant No. 2, which is placed on record and has been signed by S.B. Zaveri, Vice President of Mukund Limited on behalf of Mukund Limited and by Mr. Santosh Jadhav on behalf of the original Defendant No. 2. The original Defendant No. 1 shown at Sr.No. 179 in list of employees of the original Defendant No. 2 which were provided to Mukund Limited. He has further deposed that the original Defendant No. 1 was 21/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc initially on the payroll of M/s. Shree Travels when he was engaged by Mukund Limited to act as driver of Viren Shah. Thereafter, when Mukund Limited stopped their business relationship with M/s. Shree Travels in 2005, the original Defendant No. 1 joined the payroll of M/s. United Associates. He has further deposed that M/s. United Associates has raised bills consisting of basic wages and allowance including house rent allowance. However, no amount was claimed by M/s. United Associates from Mukund Limited with regard to the original Defendant No. 1 towards house rent allowance since he was residing in the suit premises. Duly certified bank statement of the account held by the Deponent with Allahabad Bank Kalwa Thane Branch has been brought on record and which reflects payment of salary made by M/s. United Associates to the original Defendant No.1 periodically. The original salary receipts towards the payment of salary to the Defendant No. 1 for the month of February 2007 and June 2014 have already been produced on record.
13. During the oral arguments, Mr. Pravin Patel, learned Counsel for the Appellant has sought to poke holes in the original Plaintiff's witness Praveen Shetty's evidence, in particular he has relied upon Praveen Shetty's answer in cross examination to a 22/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc question put to him viz. that he is not aware that the original Defendant No. 1 was given accommodation by the company and that he came to know only in the year 2012 and HRA was then stopped being paid to him. This does not dilute his evidence with regard to the salary being paid to the original Defendant No. 1 by his firm M/s. United Associates from the year 2007 as well as the original Defendant No. 1 being in the list of employees shown in the contract order dated 2nd April 2008 of M/s. United Associates. The Plaintiff's witness Surendra Jhaveri, employee of Mukund Limited, has deposed that he had on behalf of the Mukund Limited awarded contract order to the original Defendant No. 2 for providing human resources for various positions across all divisions in Mukund Limited. He has also identified the signature of Santosh Jadhav on behalf of the Defendant No. 2 in the contract order. Though he had stated that he is deposing as Plaintiff's Witness No. 3 in personal capacity, despite working with Mukund Limited, he has confirmed in his Affidavit in lieu of Examination in chief that the contract order was awarded by Mukund Limited to the original Defendant No. 2 and for which there is no dilution in the cross examination.
14. Thus, from the evidence on record, it is clear that 23/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc the Plaintiff has been able to establish that the original Defendant No. 1 had been using the suit premises since the year 2005 as servant/driver, having been provided by Mukund Limited who was the owner of the suit premises initially through M/s. Shree Travels and thereafter, through the original Defendant No. 2. In the cross examination of the original Defendant No. 1, he has confirmed that since the month of March 2005, the salary was deposited in his bank Account by M/s. Shree Travels. Thus, he was getting salary through M/s. Shree Travels till the year 2007. Thereafter, from 2007 to 2014 the original Defendant No. 2 was paying the salary.
15. The case of the original Defendant No. 1 that he was occupying the suit premises as tenant of the said Viren Shah has also not been established. There are no rent receipts produced by the original Defendant No. 1 as proof of his having paid rent to the said Viren Shah as contended by him till the year 2012 and which he has claimed comes to an amount of Rs. 14,72,000/-. Thus, there is no supporting evidence produced by the original Defendant No. 1 that he has paid any amount to the said Viren Shah towards the rent of the suit premises.
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16. With regard to the point for determination No. 2 i.e. whether the services of the original Defendant No. 1 was terminated, there is an admission on the part of original Defendant No. 1 during cross examination that his services as servant/driver of the original Plaintiff was terminated in the year 2014 by the original Defendant No. 2, who had removed him from his services/job. This has also been admitted in pleadings. In the Written Statement of the original Defendant No. 1, the original Defendant No. 1 has stated that his services have been terminated on 13th August 2014 by the original Defendant No. 2. The original Defendant No. 1 has further not disputed that the original Plaintiff is a true and lawful owner of the suit premises. He has admitted that the original Defendant No. 2 had terminated his services at the instance of the original Plaintiff. It is the case of the Plaintiff that in view of the original Defendant No. 1 refusing to cease his illegal use of the suit premises, despite the Plaintiff calling upon him to do so, the original Plaintiff had approached Mukund Limited and original Defendant No. 2 and called upon them to ensure that the original Defendant No. 1 ceased entering upon the suit premises, as he is an illegal user of the same. It is in this connection the original Defendant No. 2 addressed letter dated 2nd May 2014 to the original Defendant No. 1 and informed 25/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc original Defendant No. 1 that he had been transferred to the Juhu premises. Thereafter, the original Defendant No. 2 terminated the services of original Defendant No. 1 and called upon the original Defendant No. 1 by letter dated 14th May 2014 to cease entering upon and using the suit premises, which he had been permitted to use temporarily during the term of his appointment as driver. By another letter dated 30th May 2014 which had been addressed by the original Defendant No. 2 to original Defendant No. 1 in view of the original Defendant No. 1 refusing to cease entering upon the suit premises, original Defendant No. 1 had been called upon to handover the suit premises and he had been assigned new quarters for his duties at Juhu House.
17. Thus, the documents on record including the police complaint would go to show that the services of original Defendant No. 1 had been terminated and despite which he had refused to vacate the suit premises. This is further established by the evidence of the Plaintiff's witness No. 2-Praveen Shetty, the sole proprietor of the M/s. United Associates, who has referred to the aforementioned communication addressed by the original Defendant No. 2 and deposed that despite addressing the said correspondence, 26/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc the original Defendant No. 1 continued to use the suit premises and refused to vacate the suit premises. Praveen Shetty has also deposed to an enquiry being initiated against original Defendant No. 1 as to his having threatened the original Plaintiff and her daughter during his illegal occupation of the suit premises. Pursuant to the enquiry, the original Defendant No. 1 was dismissed from service. There is no dilution of this evidence in cross examination of Praveen Shetty. The evidence of Praveen Shetty is further corroborated by the evidence of S. Jhaveri, who is the Plaintiff's witness No. 3. He has deposed that the original Defendant No. 2 had been asked by Mukund Limited to take necessary action against original Defendant No. 1 to vacate the suit premises. This was after the demise of the said Viren Shah on 9th March 2013, when Mukund Limited gradually withdrew all the facilities given to the family of the said Viren Shah which included the original Plaintiff. Thus, from the evidence on record, it is clear that there has been a termination of the services of the original Defendant No. 1 and which the original Plaintiff has been able to prove.
18. Accordingly, the point for determination No. 3 viz. whether the learned Judge of the City Civil Court in the impugned 27/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc judgment and order dated 6th May 2021 was correct in holding the above points for determination Nos. 1 and 2 in the affirmative is also answered in the affirmative. The original Plaintiff has accordingly, proved/established that the original Defendant No. 1 has been using the suit premises as servant/driver provided to the original Plaintiff and earlier to her husband, the said Viren Shah, by Mukund Limited through the original Defendant No. 2 as well as the original Plaintiff has proved/established that the service of original Defendant No. 1 was terminated.
Re : Point for determination Nos. 4 and 5 :-
19. The original Defendant No. 1 contended that as he was the tenant of the said Viren Shah and in that capacity was paying the rent to the said Viren Shah since the year 2003 till the year 2012 which was to the tune of Rs. 14,72,000/-, the City Civil Court had no jurisdiction to entertain the dispute between the landlord and tenant. Further, the original Defendant No. 1 has claimed that he continued as tenant of the original Plaintiff after the demise of Viren Shah.
20. In that connection, the original Defendant No. 1 28/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc has relied upon the pending Suit filed by the original Defendant No.1 in the Small Causes Court for declaring him as tenant of the suit premises.
21. Mr. Pravin Patel has relied upon the decision of this Court in Shankar Assana Gaddam Vs. Achanak Associates Realtors Pvt.Ltd.1 by which decision, the learned Single Judge of this Court has considered bar of jurisdiction of this Court under Section 430 of the Companies Act read with Sections 241, 242 thereof. The learned Single Judge held that the legal provision creating a bar of jurisdiction of the Civil Court are required to be strictly interpreted and given effect to. He has submitted that under Section 47 of the Maharashtra Rent Control Act, 1999, there is bar of jurisdiction of the Civil Court to try suits and proceedings between the landlord and tenant relating to recovery of possession and immovable property, which the Small Causes Court is empowered to decide. He has submitted that in view of the original Defendant No. 1 being a tenant, recovery of possession could not be by way of a Suit filed in the City Civil Court, wherein the Plaintiff has sought a perpetual injunction restraining the original Defendant No. 1 from remaining 1 2021(2) Mh.L.J. 29/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc upon the suit premises and mandatory injunction directing the defendant No. 1 to remove all his belongings and other articles from the suit premises. He has submitted that the City Civil Court had erroneously exercised jurisdiction in decreeing the Suit.
22. Mr. Pravin Patel has relied upon the decision of the Supreme Court in Subhash Chander & Ors. Vs. M/s. Bharat Petroleum Corporation Ltd.(BPCL) & Anr.2 where it was held that the jurisdiction of the Civil Court to evict a statutory tenant was impliedly barred and could only be evicted under the provisions of the Haryana (Control of Rent & Eviction) Act, 1973. Mr. Patel has also relied upon the decision of the learned Single Judge in Shanta Tukaram Kasare Vs. Father Milton Gonsalves & Ors.3 in support of his submission that where the Plaintiff has not disclosed the basic ingredients of service tenant, which in the present case is of trespass of the suit premises, the judgment/decree passed by the Competent Authority/Court would be ab initio bad and void in law.
23. Mr. Patel has contended that there was no 2 Civil Appeal No. 7517 of 2012 Jt. Dated 28.01.2022 3 2005(2) Mh.L.J. 344 30/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc disclosure of the basic ingredients of trespass in the Plaint or the basis on which the original Plaintiff herein had sought exercise of jurisdiction by the City Civil Court. He has submitted that on this ground alone, the entire proceedings before the City Civil Court is required to be held as ab initio bad and void in law.
24. Mr. Pradeep Thorat on behalf of the Respondent No. 1/original Plaintiff has countered the submissions of Mr. Patel by contending that the original Defendant No. 1 was occupying the suit premises as servant of the said Viren Shah and his wife, the original Plaintiff and their family and thus, had not acquired any right or interest whatsoever for himself in the suit premises irrespective of his long stay or possession. There is no proof that original Defendant No.1 was at all residing in the suit premises as tenant of the said Viren Shah or after his demise, the original Plaintiff.
25. Mr. Thorat has placed reliance upon the decision of the Supreme Court in Maria Margarida Sequeira Fernandes & Ors. Vs. Erasmo Jack De Sequeira (Dead) Through LRs.4, wherein the Supreme Court has held that no one can take law in his own hands. 4 (2012)5 SCC 370 31/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc Even a trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities into consideration. The Court's primary concern has to be to do substantial justice. The Supreme Court has further held that a caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
26. Mr. Thorat has also made submissions on the Suit being filed for mandatory injunction and that the original Plaintiff having succeeded in the Suit is entitled to possession of the suit 32/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc premises as has been decreed by the City Civil Court in the impugned judgment and order.
27. The present Suit which had sought such prayer of mandatory injunction was considered by the Supreme Court in Sant Lal Jain Vs. Avtar Singh5 and Joseph Severance & Ors. Vs. Benny mathew & Ors6. The Supreme Court has held that the Suit is in effect one for possession though couched in the form of a Suit for mandatory injunction as what would be given to the Plaintiff in case he succeeds is possession of the property to which he may be entitled. This decision relied upon by Mr. Thorat is apposite.
28. After considering the submissions, in view of the findings with regard to the Point Nos. 1 to 3 for determination that the original Defendant No. 1 was using the suit premises since 2005 as servant/driver provided to the original Plaintiff and prior thereto to her husband, the said Viren Shah, by Mukund Limited through the original Defendant No. 2 and that his service was terminated, the City Civil Court has correctly exercised jurisdiction and granted 5 (1985)2 SCC 332 6 (2005)7 SCC 667 33/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc prayer for perpetual as well as mandatory injunction restraining the Defendant No. 1 from entering into and/or remaining into the suit premises. Thus, the original Defendant No. 1 had no right to remain in the suit premises which he was occupying considering that his services have been terminated and thus, required to give possession forthwith on demand as has been held by the Supreme Court in Maria Margarida Sequeira Fernandes (supra).
29. The decision relied upon by Mr. Pravin Patel on bar of civil jurisdiction will not be applicable in the present case, considering the finding arrived at that the original Defendant No. 1 was occupying the suit premises as servant and hence, the City Civil Court has jurisdiction to entertain and decide the Suit.
30. The original Defendant No. 1 being in illegal occupation/possession of the suit premises after his services were terminated, the City Civil Court has correctly granted the prayer for perpetual injunction restraining the Defendant No. 1 from entering into and/or remaining upon the suit premises and for mandatory injunction directing the original defendant No. 1 to remove all his belongings and other articles from the suit premises. Thus, these 34/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 ::: FAST-14912-21-Jt.doc points for determination are accordingly answered in the affirmative.
31. In view thereof and considering the findings with respect to the points for determination and which have answered in favour of the Respondent No. 1/Original Plaintiff, the impugned judgment and order dated 6th May 2021 is upheld and the First Appeal therefrom is dismissed.
32. There shall be no order as to costs.
[R.I. CHAGLA J.]
33. At this stage, the learned Counsel for the Appellant/original Defendant No. 1 has sought stay of this judgment and order.
34. Considering the findings in the judgment and order, Application for stay is rejected.
[R.I. CHAGLA J.] 35/35 ::: Uploaded on - 13/01/2023 ::: Downloaded on - 29/05/2023 08:37:44 :::