Bombay High Court
Maharashtra Automobiles vs Navjivan Co-Operative Housing on 29 March, 2011
Author: B.R. Gavai
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Civil Revision Application No. 153 of 2011
IN
Appeal No. 1 of 2011
Maharashtra Automobiles
a partnership firm carrying on business from
97, Dr. Dadasaheb Bhadkamkar Road,
Next to Navjivan Co-op. Hsg. Society Ltd.
Mumbai - 400 008. ... Applicant
v/s.
Navjivan Co-operative Housing
Society Limited
reg. Office at Dr. D. Bhadkamkar Marg,
1st floor, Building No. 6,
Mumbai 400 008.
2. Hindustan Petroleum Corporation Ltd.
Company registered under Companies Act,
Having its registered office at 17,
Jamshedji Tata Road, Mumbai 400 020. ... Respondents
Mr. Jawahar J. Thakkar for the applicant.
Mr. Satish Shetye with Mrs. Rehana Kesuri i/b. Banatwala & co. for
respondent no. 1.
Miss. Pallavi Dabholkar i/b G.S.Godbole for respondent no. 2.
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CORAM:- B.R. GAVAI, J
JUDGMENT RESERVED ON:- 16th March, 2011
JUDGMENT PRONOUNCED ON:-
JUDGMENT
The applicant challenges the concurrent orders passed by the Small Causes Court, Mumbai dated 10th December, 2010 thereby rejecting the applications taken out by the present petitioners below exhibit 23 and 27 in Execution Application No. 774/2009 and the order passed by the Appellate Bench of Small Causes Court dated 25th January, 2011 thereby dismissing Execution Appeal No. 1/2011 filed by the present petitioner.
2. The facts in brief which gave rise to filing of present revision application are as under:-
The plaintiff Navjivan Co-operative Housing Society Limited-
respondent no. 1 herein is owner of suit premises admeasuring an area of about 10,000 sq. feet. The respondent no. 1 had initially leased out the suit land to M/s. Caltex (India) Ltd. to sub let or give a license of suit premises.
Respondent No. 2 i.e. original defendant no. 1 in the suit, Hindustan Petroleum Corporation is a successor of M/s. Caltex (India) Ltd. The ::: Downloaded on - 09/06/2013 17:08:58 :::
3 cra153.11.sxw plaintiff had filed a suit for eviction under the provisions of Maharashtra Rent Control Act, 1999 (hereinafter referred to as the said Act for the sake of brevity) in the year 2004. The said suit was decreed and the decree passed by the Small Causes Court has been confirmed upto the Apex Court.
In persuance to the said decree, the present execution proceedings came to be filed by the respondent no. 1. The applicant-obstructionist has obstructed the execution of the decree, claiming that M/s. Caltex (India) Ltd. entered into an agreement in its favour before 1973 and as such in view of the said agreement, he was in possession of suit premises prior to 1973. It was, therefore, contended that the applicant was protected under the provisions of Section 15 (A) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as Bombay Rent Act). The case of the applicant-obstructionist was resisted by the respondent no. 1. It is specifically contended by the respondent no. 1 herein that no document was placed on record by the applicant in support of the claim of the obstructionists that it is in possession of suit premises from 1st February, 1973. The learned trial Judge on the basis of unreported Judgment of this Court in the case of W.P. No. 5517/2006 in the case of Shri Somvanshiya Sahastrarjun Kashtriya Samaj, a Trust and others Vs. Vardhaman Petrol Depot and another rejected the application filed by the petitioner. It was ::: Downloaded on - 09/06/2013 17:08:58 ::: 4 cra153.11.sxw held by the trial Court that by virtue of agreement the obstructionists was only permitted to use the land premises as a licensee and the possession of the suit premises by the obstructionist was on behalf of the defendant and, therefore, the decree passed against the defendants would bind the obstructionists. Being aggrieved thereby the appeal was preferred. The same is also dismissed. Hence, the present petition.
3. Shri Thakkar, learned Counsel appearing on behalf of applicant submits that both the Courts below have failed in considering that in the facts of the present case, the petitioner ought to have been given an opportunity to lead the evidence in support of his case. The learned Counsels in this respect relies on the Judgment of Apex Court in the case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust and anr. reported in AIR 1998 3 SCC 723. The learned Counsel further submits that since applicant was in possession of the suit premises on 1st February, 1973, he was a deemed tenant under Section 15 A of Bombay Rent Act. The learned Counsel in this respect relies on the Judgment of Apex Court in the case of Natraj Studios (P) Ltd. v/s. Navrang Studios & anr. reported in AIR 1981 SC 537.
Learned Counsel further submits that the lease given in favour of the present defendant was not as lessee but as a owner and, therefore, this ::: Downloaded on - 09/06/2013 17:08:58 ::: 5 cra153.11.sxw aspect ought to have been considered by the Courts below. The learned Counsel in this respect relies on the Judgment of The Bhopal Sugar Industries Ltd. vs. Sales Tax Officer, Bhopal reported in 1977 SC 1275.
Learned Counsel for the applicant further submits that applicant was also regularly paying the rent and that this aspect has also not been considered by the learned trial Court.
4. Learned Counsel for the respondent on the contrary submits that both the Courts have concurrently held that the applicant has failed to make out any case and as such in revisional jurisdiction, this Court would not interfere with the same, specially when the applicants have failed to point out any material irregularity in the jurisdiction exercised by the trial Court.
5. Insofar as the contention of the applicant regarding the payment of rent is concerned, the learned Counsel for the respondents submits that the rent was paid by the applicant to the defendant no. 1 and not to the present respondents and as such the applicant would not be entitled to any benefit on account of same. The learned Counsel in this respect relies on the Judgment of the Apex Court in the case of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. v/s. Khaja Midhat ::: Downloaded on - 09/06/2013 17:08:58 ::: 6 cra153.11.sxw Noor & ors. reported in AIR 1988 SC 1470.
6. The Courts below have concurrently found that though it is the claim of the present petitioner that the petitioner is in possession of the suit premises since 1973 in view of the agreement between it and M/s. Caltex (India) Ltd., the petitioner had not placed anything on record to substantiate the same. The Courts below have concurrently held that in the absence of any such agreement being placed on record, it was difficult to believe the case of the applicant that it was in possession of the suit premises since 1973 and had acquired the status of sub-lessee. The Courts below have further found that if the applicant was in possession of the suit premises since 1973, there was no necessity for it to again enter into an agreement of license with the defendant in the year 1993 and thereafter again in the year 1996. The learned Appellate Court, therefore, relying on the Judgment in the case of Alban Joseph Gonsalves vs. Rallis India Ltd. reported in 2004 (I) ALL MR 702 has held that, if inspite of provisions of Section 15 A of the Rent Act, the claimant goes on entering into lease agreement, it amounts to waiver of the protection alleged to have been acquired under Section 15 A of the Bombay Rent Act. In that view of the matter, it cannot be said that findings in this respect by the Courts below are perverse.
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7. The Courts below on the perusal of agreement of the year 1996 which is in the form of leave and license agreement have found that it only permits the obstructionists to use the suit premises for 15 years or till the period extended. The Courts below on the perusal of the agreement have come to a finding that the obstructionists was entitled only to restricted use of the property. The learned Appellate Court on perusal of the agreement found that the defendant had complete control over the infrastructure provided on the suit premises and that the obstructionists was granted permission only to use the premises as a licensee on behalf of defendant. It is found that the said license does not create any interest in the property in favour of the licensee.
8. Insofar as the grievance of the petitioner that the applicant ought to have been given an opportunity to lead the evidence is concerned, the same is also not sustainable. The Apex Court in the case of Silverline Forum (supra) have observed that :-
" The Court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the Court can direct the parties to adduce evidence for such determination if the court deems it necessary." (emphasis ::: Downloaded on - 09/06/2013 17:08:58 ::: 8 cra153.11.sxw supplied)
9. It can thus be clearly seen that Apex Court itself has held that it is not necessary in each and every case to direct the parties to lead the evidence.
It has further been held that adjudication mentioned in Order 21 Rule 97(2) need not necessarily involve a detail enquiry or collection of evidence. It has further been held that Court can make the adjudication on admitted facts or even on the averments made by the resister. In the present case both the Courts have found that the claim of the petitioner regarding being in possession of the suit property as a deemed tenant from 1973 was without any basis inasmuch as he had not produced any document in regard thereto.
The Courts below on the basis of the agreement between the petitioner and the defendant have found that the petitioner was only entitled to restricted use of the facilities provided by the defendant. In that view of the matter, the contention in that regard is without any substance.
10. Insofar as the reliance on the Judgment of the Apex Court in the case of Natraj Studios (supra) is concerned, since the petitioner has failed to establish that he was in possession of the suit premises prior to 1st February, 1973, the said judgment would be of no assistance to the case of the petitioner.::: Downloaded on - 09/06/2013 17:08:58 :::
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11. Insofar as the Judgment of the Apex Court in the case of Bhopal Sugar Industries (supra) is concerned, the same would also not be of any assistance to the case of the petitioner, inasmuch as question before the Court was restricted only as to whether the quantities of petrol consumed by the appellant for its own purpose would constitute of sale or not so as to be exigible to sales tax.
12. The Apex Court in the case of Burmah shell Oil Distributing (supra) in Paragraph 12 has observed thus:
"12. In Rupchand Gupta v. Raghuvanshi (Pvt.) Ltd. Air 1964 SC 1889, it was held by this Court that it is quite clear that law does not require that the sub-lessee need be made a party, if there was a valid termination of the lease. This court reiterated that in all cases where the landlord instituted a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and did not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee, but this was a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. In the facts of this case these observations apply more effectively. The termination of the lease was not disputed by the lessee. There is no allegation of any collusion between the lessee and the ::: Downloaded on - 09/06/2013 17:08:58 ::: 10 cra153.11.sxw respondent." (emphasis supplied) The facts in the aforesaid case squarely apply to the facts in the present case.
13. In that view of the matter, no case is made out for interference.
Rejected.
ig (B.R. GAVAI, J)
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