Gujarat High Court
Parshottambhai Rupchand Bharvani vs Chandraprakash Mulchand Nenvani on 27 June, 2024
NEUTRAL CITATION
C/FA/2408/2024 ORDER DATED: 27/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2408 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2408 of 2024
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PARSHOTTAMBHAI RUPCHAND BHARVANI
Versus
CHANDRAPRAKASH MULCHAND NENVANI
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Appellant(s) No. 1
MR AADITYA P DAVE(11461) for the Defendant(s) No. 1
MR DM DEVNANI(5880) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 27/06/2024
ORAL ORDER
1. Heard learned advocate Mr.K.M.Ghavariya for the appellant - original plaintiff and learned advocate Mr.Aaditya Dave for the respondent - original defendant.
2. Upon joint request of learned advocates of both the sides, the present First Appeal is taken up for final hearing.
3. By way of the present First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 the Page 1 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined original plaintiff - appellant has challenged the judgment and decree dated 30.03.2024 passed by the learned City Civil & Sessions Court, Ahmedabad in Civil Suit No.1064 of 2000, whereby the suit of the appellant - plaintiff came to be rejected.
4. The brief facts leading to the present appeal, are as under:-
4.1 The appellant - original plaintiff had filed the suit against the defendant for a relief of permanent injunction only seeking a prayer restraining defendant from evicting the plaintiff without due process of law. The suit property is a residential property situated at house No.2/A, Shri Ghanshyam Co-operative Housing Society Ltd, Behind Old Dhor Bazar, Opposite Telephone Exchange Kankariya Road, Ahmedabad - 380022 bearing survey No.00158/2/A/ 1, T.P.No.158, Municipal Ward No.0309, Municipal Board Azad Dairy, Municipal Tenament No.0309-33-0011-0001-B, Page 2 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined Ahmedabad admeasuring 47.80 sq. mtrs. Defendant is the owner of suit property.
4.2 The case of the plaintiff is that, the plaintiff -
appellant is a tenant of the suit property and since 01.12.2016, the plaintiff is occupying the suit property as a tenant. The rent was agreed at Rs.4,000/- per month and thereafter it was increased to Rs.5,000/- per month in the year 2021. Defendant gave threat of increasing rent and failing which threatened to dispossess plaintiff from suit property.
4.3 The plaintiff has stated that the talks of selling and purchasing the suit property was going on after plaintiff occupied the suit properties as tenant in the year 2016. The agreed sale consideration was Rs.25,00,000/- However, thereafter, defendant demanded more price. Since the plaintiffs were not having sufficient funds at the relevant point of time refused to purchase suit property Page 3 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined and hence, a rent agreement dated 18.09.2020 came to be executed between the parties. The plaintiff gave a cheque of Rs.5,00,000/- to the defendant on 07.02.2021, and also executed an agreement dated 31.01.2021. The said cheque was returned back to the plaintiff by the defendant. Thereafter, defendant refused to sale the suit property and threatened plaintiff to dispossess from the suit property. Hence, the suit.
4.4 The defendant was served with the summons and contested the suit by filing a Written Statement at Ex.13. Issues were framed at Ex.31.
4.5 Following issues were framed:-
1. Whether plaintiff proves that he is the tenant in the suit property as detailed in para 1 of the plaint from 01.12.2016?(OPP)
2. Whether the plaintiff is entitled for relief of permanent injunction against the defendants regarding the suit property as prayed for in para 10(a) of the plaint?(OPP) Page 4 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined
3.Whether plaintiff has no locus standi to file the present suit?(OPP)
4. Whether the suit of the plaintiff is not maintainable and is liable to be dismissed?(OPP)
5. Whether plaintiff has suppressed true and material facts and has no come to the Court with clean hand?
6. What order and decree?
4.6 The plaintiff has examined himself at Ex.49 and also produced the various documentary evidence which contains the agreement of Leave and Licnese Agreement and notice correspondence. The defendant has examined himself at Ex.56 and also examined a witness Nareshbhai Chandumal at Ex.69 and also produced the documentary evidence. After considering the evidence, the suit of the plaintiff came to be dismissed. Against which, the appellant is before this Court.
5. Learned advocate for the appellant has submitted that the plaintiff is a tenant of the suit property occupying Page 5 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined the suit propertiy since 01.12.2016. Initially, the intention of the plaintiff and defendant was to purchase and sale the suit property. However, subsequently the defendant turned back from his commitment and executed the rent agreement dated 18.09.2020 instead of sale deed.
5.1 It is further submitted that, initially the plaintiff agreed rent was of Rs.4,000/- per month which was subsequently increased to Rs.5,000/- per month. In the year 2021, cheque was given to the defendant towards part consideration, however, cheque dated 07.02.2021 was returned back by the defendant. Agreement dated 31.01.2021 was also executed between the parties. Pursuant to that Agreement, the property was supposed to be sold by defendant to the plaintiff. However, defendant refused to execute a registered sale deed in favour of the plaintiff and threats were given to vacate the suit property. On 26.08.2021, a police complaint was also Page 6 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined lodged by the plaintiff against the defendant for such threats.
5.2 It is further submitted that the plaintiff is in settled possession of the suit property since 2016 and pending the suit, suit for recovery of possession came to be filed by the defendant against the plaintiff being Civil Suit No.706 of 2023 for recovery of possession of the suit property. The said suit is pending for its adjudication. 5.3 It is further submitted that the learned trial Court has committed an error by holding that the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short 'the Act') is not applicable in the facts of the present case as the said Act is not existence after 2001. It is further submitted that though the Agreement is tilted as Leave and Licence, virtually the said agreement was a rent agreement. It is Page 7 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined submitted that though in the plaint, plaintiff has stated regarding the Agreement of year 2017 which was executed between the parties, the learned trial Court has committed an error by holding that the plaintiff has suppressed the fact of previous agreement. No other submissions are made by the learned advocate for the appellant.
6. Per contra, learned advocate for the respondent has vehemently submitted that the impugned judgment and decree is in complete consonance with the evidence on record and no interference is required to be called for in the findings of the learned trial Court. 6.1 It is further submitted that in the year 2017, a Leave and Licence Agreement was executed between the parties and after expiry of period of said Agreement, another Leave and Licence Agreement dated 28.09.2020 at Exh.75 came to be executed between the parties for a Page 8 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined period of 11 months and 29 days commencing from 18.09.2020. The said agreement has expired on 16.09.2021.
6.2 Learned advocate for the respondent has relied upon condition Nos.3 and 6 of the Leave and Licence Agreement and submitted that the intention of the parties was not to create any tenancy right but the suit property was given to the plaintiff on a licence basis for a temporary period. It is further submitted that the said agreement is terminable upon issuance of notice during the licence period.
6.3 Learned advocate for the respondent has further submitted that notice dated 07.09.2021 at Exh.59 came to be issued calling upon the plaintiff to vacate the suit property upon expiry of the period of licence. The reply to the said notice came to be given by the plaintiff on 25.09.2021 which is after the institution of the present Page 9 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined suit. The present suit came to be filed on 09.09.2021. Since the Leave and Licence Agreement has come to an end, the plaintiff has no right to retain the possession and upon termination of the said Leave and Licence Agreement, status of plaintiff is of trespasser and the suit for simplicitor injunction is not maintainable. It is further submitted that the plaintiff has no locus standi to file the suit and retain the possession of the suit property in absence of any specific written permission from the defendant.
7. I have considered the submissions and the materials placed on record. The suit filed by the plaintiff is a suit of permanent injunction only. A Leave and Licence Agreement dated 28.09.2020 was executed between the parties for a period of 11 months and 29 days commencing from 18.09.2020. The said agreement has expired on 16.09.2021. Before expiry of the period of Page 10 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined licence, the plaintiff filed a suit for permanent injunction on 09.09.2021 which was a premature action on the part of the plaintiff. The case put up by the plaintiff that the relationship between the plaintiff and defendant was that of the tenant and landlord. Though such contention sounds attractive but has no force in the eye of law on two grounds. Firstly, the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 has been suspended since 2001 and secondly, the plaintiff has filed the suit in the Civil Court not before the rent Court. Further on scrutinizing the terms and conditions of the Leave and Licence Agreement, intention of the parties was not to create any landlord tenant relations. The intention is clear from interpreting clause No.6 of the Exh.75. As per the said clause, parties agreed that for a temporary period, suit property is being given to the plaintiff for use and occupation. It is specifically agreed between the parties to the Leave and Licence Agreement that no rights Page 11 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined are given under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947. Meaning thereby, there was no relationship of landlord and tenant between the defendant and plaintiff respectively. Clause 3 also speaks about duration of agreement, which is 11 months and 29 days from 18.09.2020.
8. In the case of Maria Margadia Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors reported in AIR 2012 SCC 1727, in para 101, the Hon'ble Apex Court has observed as under:-
"101. Principles of law which emerge in this case are crystallized as under:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession Page 12 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined forthwith on demand.
3. 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.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. 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.
9. Admittedly, as per the case of the plaintiff, the tenancy was created in the year 2016 which is after the suspension of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 therefore, the provisions of the said Act would not be applicable and the parties are not governed by the provisions of the said Act. Since, Leave and Licence Agreement was executed under the provisions of Easement Act, 1882 the parties are governed by the Page 13 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined Civil Law i.e. the provisions of Transfer of Property Act,1882
10. A notice dated 07.09.2021 was issued to the plaintiff terminating the Leave and Licence Agreement upon the expiry of stipulated period. On receipt of the notice, the plaintiff has filed a suit for the relief of permanent injunction on 09.09.2021. After filing of the suit, plaintiff replied to the Notice on 25.09.2021. Such reply has no significance as it is given after filing of suit. Even if for a moment, the theory pleaded in the plaint is considered, such story has no worth. Testing the contentions raised in the plaint, the story which has been pleaded is that, the plaintiff has the intention of purchasing the suit property from the defendant. The plaintiff has not filed any suit for a relief of specific performance of the alleged agreement dated 31.01.2021. The said Agreement has not been produced on record in Page 14 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined the trial Court. Thus, in my view, the story put up in the plaint regarding the selling and purchasing of the suit property is a concocted story after receiving notice from defendant just to retain the possession of the suit property. Even, in the cross-examination, the plaintiff has admitted the execution of the Leave and Licence Agreement dated 28.09.2020 and considering such admission on the part of the plaintiff, there is no other scope to interpret the relationship of the plaintiff and defendant. Once the execution of Leave and Licence Agreement is agreed by the plaintiff, terms and conditions of such Agreement are deemed to have admitted, unless any contrary evidence is led by plaintiff.
11. Considering the oral evidence of the parties and the documents available on record, the learned trial Court has rightly come to the conclusion that the suit of the plaintiff is not maintainable. Leave and Licence Agreement Page 15 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024 NEUTRAL CITATION C/FA/2408/2024 ORDER DATED: 27/06/2024 undefined which was executed between the parties which has come to an end. A Simplicitor suit for permanent injunction in absence of any consequential relief is not maintainable. The plaintiff has asked for a relief of permanent injunction only without being asked for a relief of consequential relief. Suit is not maintainable. Since the plaintiff has failed to establish his case pleaded in the plaint and in absence of any contrary evidence, I am of the view that the learned trial Court has not committed any error in interpreting the evidence both oral as well as documentary.
12. In view of the totality of the facts and circumstances of the case, there is no scope either to re- appreciate or reassess the evidence placed on record. Resultantly, present First Appeal fails and the same is dismissed.
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13. In view of the dismissal of the First Appeal, the present Civil Application, stands disposed of accordingly.
(D. M. DESAI,J) MANOJ Page 17 of 17 Downloaded on : Thu Jul 04 20:31:27 IST 2024