Bombay High Court
Nilesh Laxmichand And Anr vs Smt. Shantaben Purushottam Kakad ... on 24 September, 2018
Author: R. G. Ketkar
Bench: R. G. Ketkar
1
19.CRA.29-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Civil Revision Application NO. 29 OF 2018
Nilesh Laxmichand
And another ...Applicants
Versus
Smt. Shantaben Purushottam Kakad
(since Deceased) Through Lrs.
1a. Anil Purshottam Kakad
and others. ...Respondents
....
Mr.P.S. Dani, Senior Advocate i/b. G.H. Keluskar, Advocate for the
Applicants.
Mr. Vaibhav Sugdare a/w. Bharatkumar Jain i/b. Hariani & Co. for
Respondents No.1a to 1c.
....
CORAM : R. G. KETKAR, J.
DATE : 24th SEPTEMBER, 2018 P.C. 1. Heard Mr.P.S. Dani, learned Senior Counsel for the
applicants and Mr.Vaibhav Sugdare, learned counsel for respondents No.1a to 1c, at length.
2. By this application under Section 115 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.'), the applicants, hereinafter referred to as the 'defendants', have challenged the judgment and decree dated 30.10.2017 passed by the Appellate Bench of the Small Causes Court at Bombay in Appeal No.19/2013. By that order, the Appellate Court 1 / 15 2
19.CRA.29-18.doc decreed the suit instituted by respondent No.1 since deceased under Sections 16(1)(c), 16(1)(e) and 16(1)(n) of the Maharashtra Rent Control Act, 1999 (for short, 'Act') and directed the defendants to hand over quiet, vacant and peaceful possession of shop No.6-B, ground floor, Shanti Sadan building, plot No.112, Kokilaben Oza Road, Sion (W), Mumbai - 400 022 (for short, 'suit premises') to the respondents, hereinafter collectively referred as the 'plaintiffs', within 60 days from the date of the order.
3. In support of this application, Mr. Dani has invited my attention to paragraphs-1 to 5 of the plaint. In paragraph-1, the plaintiffs contended that the suit premises was let out to defendant No.1. In paragraph-2, it is asserted that the suit premises was let out to defendant No.1 for the purposes of carrying on his own business of Book Shop and since inception defendant No.1 was carrying on said business in the name and style of "Chetana Book Stores".
4. In paragraph-3, the plaintiffs herein alleged the ground of non-user from July, 2005. In paragraph-4, the plaintiffs alleged that defendant No.1 has unlawfully sub-let the suit premises to the third party. Anil, son of the original plaintiff found that Mr. Raja was in possession of the suit premises and said fact was confirmed by Mr. Raja 2 / 15 3
19.CRA.29-18.doc to Anil, son of the original plaintiff. In paragraph-5, the plaintiffs have alleged the ground of nuisance and annoyance. The plaintiffs have claimed possession on the ground under Sections 16(1)(c), 16(1)(e) and 16(1)(n) of the Act.
5. Mr. Dani invited my attention paragraph-3(A) of the written statement filed on behalf of the defendants, wherein it was contended by the defendants that in or about 1971, defendant No.2, who is father of defendant No.1 had approached Mr. Purshottamdas B. Kakad, the husband of the original plaintiff with a request to let out the suit premises. At that time, negotiations took place between defendant No.2 and Purshottamdas Kakad and on finalization of such negotiations the suit premises were let out in the year 1971. At the relevant time, defendant No.1 was minor aged about five years. At that time, Anil son of the original plaintiff was aged about 21-22 years old. In paragraph- 3(B), it is contended that the suit premises were taken on tenancy basis for commercial business. In paragraph-3(D), it is asserted that defendant No.2 was carrying on the business. He started the business under the name and style of "M/s. Shree Krishna Food Corner" and applied for permission of Mumbai Municipal Corporation (for short, 'Corporation'). In paragraph-3(E), it is contended that in any case defendant No.2 is a deemed tenant or a protected licensee as he was in 3 / 15 4
19.CRA.29-18.doc possession of the suit premises prior to 1.2.1973.
6. Mr. Dani has invited my attention to the cross-examination of PW-1 Anil. In the cross-examination, he deposed that the suit premises came into existence in the year 1952. Prior to 1982, his father was looking after the affairs of the suit premises. During his father's lifetime, father was looking after the suit premises. He also admitted that he did not know when tenancy in respect of defendant No.1 was created. He also deposed in cross-examination that he never tried to ascertain as to in whose name, the licenses in respect of the business being run from the suit premises were standing. Mr. Dani submitted that all these licenses were standing in the name of defendant No.2. PW-1 further deposed that he is also unaware of the negotiations that took place with defendant No.1 before creating tenancy in respect of the suit premises in his favour. In short, Mr. Dani submitted that PW-1 is not personally aware of the controversy raised in the suit. The father of PW-1 was looking after the affairs of the property. He further admitted that defendants No.1 & 2 both started business of Chetana Book Depot. Mr. Dani has also taken me through the evidence of defendant No.2 as also the documents which were marked as Exhibits by order dated 1.8.2012. In particular, he invited my attention to the Shop Act License dated 19.2.1991 where defendant No.2's name is shown as employer. He has 4 / 15 5
19.CRA.29-18.doc also taken me through the Shop Act Licence in respect of which new registration certificate was issued on 30.11.2007. Mr. Dani submitted that the learned trial Judge after considering the evidence on record, dismissed the suit. As against this, the Appellate Court decreed the suit under Sections 16(1)(c), 16(1)(e) and 16(1)(n) of the Act. He has taken me through the impugned order and submitted that the Appellate Court was not justified in decreeing the suit on these grounds.
7. On the other hand, Mr.Sugdare supported the impugned order. He submitted that the suit is instituted on 19.10.2006. In paragraph-3 of the plaint, the plaintiffs asserted that in or about July, 2005, defendant No.1 suddenly closed down his business of book store and since then he is not using the suit premises for more than six months prior to institution of the suit for the purposes for which it was let and that too without reasonable cause. He submitted that the Shop Act Licence was issued on 19.2.1991. In other words, defendant No.2 though has admitted his presence in the suit premises, did not establish the fact that he was carrying on business from the suit premises prior to 1.2.1973 and, therefore, is a protected sub-tenant or a protected licensee. He submitted that after the suit was instituted on 19.10.2006, application was made on 9.1.2007 for issuing registration certificate and the same was issued on 30.11.2007. He submitted that the business of 5 / 15 6
19.CRA.29-18.doc sale of snacks, juice, cold drinks and ice-creams was carried out some time in September, 2005 and in the cross-examination defendants' witness admitted that he carried on that business for a period of 3-4 months i.e. to say upto December, 2005. He invited my attention to the findings recorded by the Appellate Court in paragraph-35. After considering the Shop Act Licence, the Appellate Court recorded a categoric finding that from the perusal of the documents it is clear that there is a gap of 13 months in between institution of the suit and registration of the new firm. The Appellate Court after considering the material on record held in paragraphs-32 to 35 that the plaintiffs have established the ground of non-user.
8. Mr. Sugdare submitted that in so far as the ground of unlawful sub-letting is concerned, the suit premises was let out to defendant No.1. Defendant No.1 had unlawfully inducted defendant No.2. As against this, defendant No.2 claimed that though the rent receipts were issued in the name of defendant No.1, defendant No.2 was infact tenant in respect of the suit premises. The Appellate Court after considering the evidence on record held that defendant No.1 is the tenant in respect of the suit premises and not defendant No.2. In that event it was necessary for defendant No.2 to establish that he is occupying the suit premises prior to 1.2.1973. Reliance placed on the 6 / 15 7
19.CRA.29-18.doc Shop Act licenses at pages-96 and 97 do not establish possession of defendant No.2 prior to 1.2.1973. He submitted that the defendants did not produce any positive evidence, such as, electricity bills etc. to establish user of the suit suit premises. He, therefore, submitted that no case is made out for interfering with the impugned order.
9. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. The plaintiffs have instituted suit invoking the grounds under Sections 16(1)(c), 16(1)(e) and 16(1)(n) of the Act. It is the case of the plaintiffs that defendant No.1 is the tenant and not defendant No.2. Defendant No.1 has unlawfully sub-let the suit premises to defendant No.2. The plaintiffs have examined PW-1 Anil Kakad at Exhibit-19 and produced the counter-foil at Exhibit-22 and letters dated 30.10.2005 and 1.12.2005 at Exhibit-24 collectively addressed by defendant No.2. The defendants have examined defendant No.2 Laxamichand Dedhia as DW-1. They have produced rent receipts at Exhibit-40 collectively, letters dated 30.10.2005 and reminder dated 1.12.2005 at Exhibit-41 collectively and registration certificate at Exhibit-42. During the course of cross-examination of PW- 1 Anil, the defendants have produced a letter dated 24.9.2005 which is marked as Exhibit-27.
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19.CRA.29-18.doc
10. The learned trial Judge held that the tenancy was created in the year 1971 and at that time defendant No.1 Nilesh was minor. In view of Section 11 of the Indian Contract Act, 1872, defendant No.1 was not competent to contract. The evidence on record showed that negotiations for creation of tenancy were held by defendant No.2. From inception, defendant No.2 is in exclusive possession without any interruption. The rent is being paid by defendant No.2. In the absence of an agreement in writing, the conduct of the parties shows that the tenancy of suit premises was created in favour of defendant No.2.
11. After considering the evidence on record, the learned trial Judge held that the plaintiffs failed to establish the ground of eviction and accordingly dismissed the suit. As against this, the Appellate Court referred to the counter-foil of the rent receipt dated 1.8.2005 at Exhibit-
22. The rent receipt is issued in the name of defendant No.1 Nilesh for the months of August and September, 2005. PW-1 Anil deposed that he had personally instructed the Manager to sign the rent receipt and he identified the signature. The Appellate Court also considered the rent receipts dated 1.12.1975, 1.12.1986, 1.3.1989 and 1.12.2000 at Exhibit-40 collectively produced by the defendants. These rent receipts were issued in the name of defendant No.1. After considering the evidence on record, in paragraph-27 the Appellate Court recorded a 8 / 15 9
19.CRA.29-18.doc categoric finding that the plaintiffs have succeeded in establishing that the suit premises was let out since inception to defendant No.1.
12. Mr. Dani submitted that defendant No.1 was minor at that time and was, therefore, incompetent to contract. It is not possible to accept this submission for more than one reason. In the first place, the rent receipts produced by the plaintiffs as also the defendants show that they were issued in the name of defendant No.1. It may be that in the year 1971 negotiations were held between Purshottamdas B. Kakad and defendant No.2. The fact that the rent receipts were issued in the name of defendant No.1 suggests that defendant No.2 had taken tenancy in the name of defendant No.1 for his benefit. Secondly, after attaining the majority, defendant No.1 has not rescinded the contract. No material is produced by the defendants on record to indicate that defendant No.1 at any time had rescinded the contract.
13. Thirdly, I proceed on the premise that defendant No.1 was minor at that time and, therefore, the contract was voidable at his option. Section 64 of the Contract Act, amongst others, lays down that the person rescinding a voidable contract has to restore the benefits received thereunder from any other party to such contract. Section 65 lays down that when a contract becomes void, any person who has 9 / 15 10
19.CRA.29-18.doc received any advantage under such an agreement or contract is bound to restore it. Section 68 lays down that if a person incapable of entering into a contract is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person. Section 31 of the Specific Relief Act, 1963 deals with cancellation of instrument. Section 33 thereof lays down that on adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted, to restore, so far as any benefit which he may have received from other party and to make any compensation to him which justice may require. Thus defendant No.1 has neither rescinded nor restored the benefits by restoring the possession of the suit premises to the plaintiffs. Rather defendant No.1 has continued with the contract on attaining majority. In view thereof, I do not find any merit in the submission of Mr. Dani that defendant No.2 and not defendant No.1 was tenant in respect of the suit premises.
14. Once it is established that defendant No.1 is the tenant and defendants came with the case that defendant No.2 is occupying the suit premises, the onus shifts on the defendants to establish in what capacity defendant No.2 is in possession of the suit premises. Mr. Dani submitted that assuming that defendant No.1 is the tenant, defendant No.2 is 10 / 15 11
19.CRA.29-18.doc occupying the suit premises prior to 1.2.1973 and as such is a protected sub-tenant or a protected licensee. It is not possible to accept this submission. In support of the contention that defendant No.2 is in possession of the suit premises prior to 1.2.1973, no documentary evidence is produced on record. Mr. Dani relied upon the Shop Act Licence dated 19.2.1991 where name of defendant No.2 is shown as employer. Said licence does not establish possession of defendant No.2 prior to 1.2.1973. It has come on record that in the suit premises sale of snacks, juice, cold-drinks and ice-cream was carried on and to that effect Shop Act Licence was issued on 9.9.2005. In the cross- examination, DW-1 Laxmichand admitted that the fast-food center was continued for 2-3 months. In other words, the fast-food center was continued upto December, 2005. The suit is instituted on 19.10.2006. The application for renewal of licence was made on 9.1.2007 and the new registration certificate was issued on 30.11.2007. Thus this Shop Act Licence also does not establish the case of defendant No.2 that he is in possession of the suit premises prior to 1.2.1973. In view thereof, defendant No.2 cannot claim to be a protected sub-tenant or protected licensee.
15. Once defendant No.2 cannot claim to be a protected sub- tenant or a protected licensee, he must establish in what capacity he is 11 / 15 12
19.CRA.29-18.doc occupying the suit premises. No attempt is made to discharge this onus. The defendants did not produce any positive evidence such as electricity bills etc. to establish user of the suit premises. In paragraph-35, the Appellate Court recorded a categoric finding that there is a gap of 13 months in between institution of the suit and registration of the new firm.
16. In so far as the ground of non-user is concerned, the Appellate Court has considered this ground in paragraphs-32 to 35. After considering the documents on record, the Appellate Court held that the plaintiffs have established the ground of non-user.
17. Insofar as the ground of nuisance is concerned, the Appellate Court has dealt with this aspect in paragraph-37 onwards. Mr. Sugdare invited my attention to the evidence of PW-1 and in particular the order passed by the learned trial Judge at the time of marking complaint dated 27.10.2005 addressed by the tenants to the Ward Officer of the Corporation as Article 'X'. A perusal of the order dated 9.1.2009 shows that the learned trial Judge marked complaint dated 27.10.2005 as Article "X" on the ground that the letter does not bear the signature of the plaintiff. Plaintiff is not the author of the said document. In my opinion, the learned trial Judge has failed to consider paragraph-7 of 12 / 15 13
19.CRA.29-18.doc PW-1's evidence which remained unchallenged. In paragraph-7, PW-1 Anil referred to the complaint dated 27.10.2005 (document No.4) and further deposed that the contents are true and it is signed by the tenants. He also identified their signatures. In my opinion, the learned trial Judge should have marked this document as Exhibit. If this document is marked as Exhibit, in my opinion no fault can be found with the findings recorded by the Appellate Court in so far as the ground of nuisance under Section 16(1)(c) is concerned. The Appellate Court has dealt with this aspect from paragraphs-37 to 41.
18. The defendants are not in a position to demonstrate that the findings recorded by the Appellate Court are perverse, being based upon no evidence or that they are contrary to the evidence on record. The defendants are also not in a position to demonstrate that no reasonable person would have arrived at the conclusions other than arrived by the Appellate Court. Merely because on the basis of evidence on record another view is possible, that itself is no ground for invocation of powers under Section 115 of C.P.C. Hence, no case is made out for invocation of powers under Section 115 of C.P.C. Civil Revision Application fails and the same is dismissed with no order as to costs.
19. At this stage, Mr. Dani orally applies for stay of the eviction 13 / 15 14
19.CRA.29-18.doc decree for a period of twelve weeks from today. Mr. Dani states that the applicants are in possession and they have neither created third party interest nor parted with the possession of the suit premises. They will hereafter neither create third party interest nor part with the possession of the suit premises. He further states that the applicants and all adult family members using the suit premises are ready and willing to give usual undertaking within two weeks from today. Learned Counsel for the respondents opposes said prayer.
20. Having regard to the fact that applicants desire to challenge this order before the Apex Court, in my opinion, ends of justice would be met by staying eviction decree for a period of twelve weeks from today subject to the applicants and all adult members using the suit premises filing usual undertaking to this Court within two weeks from today incorporating therein:
(i) that they are in actual possession of the suit premises and nobody else is in possession;
(ii) that they have so far neither created third party interest nor parted with the possession of the suit premises;
(iii) that they will hereafter neither create third party interest nor part with the possession of the suit premises;
(iv) that they will pay the arrears of rent, if any, to the respondents within two weeks from today; and
(v) that in case the applicants are unable to obtain suitable orders 14 / 15 15
19.CRA.29-18.doc within twelve weeks from today from the higher Court, they will deliver vacant and peaceful possession of the suit premises to the respondents.
21. In view thereof, notwithstanding dismissal of Civil Revision Application, the eviction decree shall remain stayed for a period of twelve weeks from today, subject to the applicants filing undertaking in the aforesaid terms within two weeks from today, with copy in advance to the other side. In case the applicants do not file undertaking in the above terms and/or arrears of rent are not paid within two weeks from today, the interim order shall stand vacated without further reference to the Court. List the application for reporting compliance on 15.10.2018. Order accordingly.
(R. G. KETKAR, J.)
Deshmane (PS)
Digitally signed
by Pradipkumar
Prakashrao
Pradipkumar Deshmane
Prakashrao Date:
Deshmane 2018.09.29
16:20:46
+0500
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