Ramchandra Vithoba More vs Shamrao Sitaram Dalvi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(Bom) 477

IN THE HIGH COURT OF BOMBAY
V.H. Bhairavia, J.
Ramchandra Vithoba More.... Appellant.
Versus
Shamrao Sitaram Dalvi.... Respondent.
First Appeal No. 1030 of 1987 with Civil Application No. 128 of 1991 and Civil Application No. 1332 of 1992 (with cross objection), decided on 2-9-1996.
Advocates appeared :
S.S. Pandit for M.B. Jadhav, for the appellant.
Madhukar Soochak with Mr. Waingankar, for the respondent.

Headnote:Sections 13(1) and 15EVIdence Act. 1872. Section 59Dispute about licensee and subtenant-Plaintiff- respondent gave premises to defendant-appellant on leave and licence In 1970 for 11 months-Plaintiff sought It to be taken back by notice and suit Defendant asserting agreement was for sub-tenancy-Held, In absence of any cogent evidence learned trial Judge was correct that agreement was of licence and In 1971 question of Its being a tenancy was barred under Section 15 of Act and that defendant liable for eviction Appeal dismissed.-The trial Judge has held that the appellant- defendant was a substant. Since the creation of sub-tenancy is barred by Section 15 of the Bombay Rent Act it is held that the appellant-defendant was a trespasser on the suit premises and. therefore, he was liable to be evicted under Section 13(I) of the Rent Act. The learned Judge is correct in his view that in 1971 there was no question of deciding the issue regarding sub-tenancy because it was barred by Section 15 of the Rent Act. However, the respondent has challenged this finding by filing his cross-objection in this appeal. There is more cogent evidence oral as well as documentary. It can be safely held and declared that the appellant defendant was a licensee rather than a sub-tenant of the suit premises evicted under Section 13(1) of the Rent Act. A licensee is not entitle for any legal protection if his intention is proved not bonafide but to grab the property under the guise of leave and licence and he is liable to vacate the suit property. Any miscarriage of justice can be removed by applying law of equity. It reveals from his own evidence that his intention from the beginning was to grab the suit shop premises from the plaintiff, who was a tenant thereof and was working as an office boy with some private firm. As against that the appellant-defendant has deposed in his evidence in paragraph 2 that in 1970 he was owning 17 trucks and he also used to hire about 25 to 30 trucks for his transport business and his annual gross turn over in 1970 out of the transport business was about rupees six crores. The agreement (Exhibit-A) is a leave and licence agreement and the same was for a period of eleven months only. Admittedly, by notice dated 31st May, 1971 the licence came to be terminated and as the appellant -defendant did not vacate the suit shop premises in pursuance of the said notice, the respondent plaintiff filed the present suit. As observed above, the real intention of the appellant -defendant was to grab the suit shop premises from the respondent-plaintiff from the very beginning. The defendant has admitted in his cross- examination that he had no intention to vacate the suit shop premises after the expiry of eleven months. Having regard to this clinching evidence on record, the trial Court ought to have held that the agreement was a leave and licence agreement and the appellant-defendant was a licensee and not a subtenant. The respondent-plaintiff has filed his cross-examination challenging the finding of the trial Court that the appellant-defendant was a subtenant, as there was no right to create any sub-tenancy and it was barred by Section 15 of the Rent Act. In view of the aforesaid facts and circumstances, the respondent-plaintiff is entitled for a declaration that on the basis of the leave and licence agreement (Exhibit A) the appellant defendant was a licensee of the respondent-plaintiff and his licence period was only for eleven months and the licence came to be terminated by the notice issued through the Advocate and since 1971 the defendant was a trespasser on the suit premises. In the result the appeal fails and the same is dismissed. The cross-objection filed by the respondent-plaintiff is allowed and the appellant- defendant is directed to forthwith hand-over possession of the suit shop premises to the respondent-plaintiff.

JUDGMENT - V.H. BHAIRAVIA, J.:---This appeal is directed against the judgment and decree dated 11th August, 1987 passed by the City Civil Court, Bombay, in S.C. Suit No. 4012 of 1971.

2.The respondent-plaintiff filed the suit for a declaration that the appellant-defendant is a trespasser in respect of the suit premises and for a mandatory injunction, directing the defendant to remove himself, his servants and agents from the suit premises and for a decree directing the defendant to hand over possession of the suit premises to the plaintiff and also for recovery of arrears of licence fee or compensation from the defendant at the rate of Rs. 375/- per month. It is the case of the plaintiff that he was carrying on business in charcoal in the suit premises for a number of years. He is the tenant of the suit premises, paying a monthly rent of Rs. 27.30. It is the case of the plaintiff that the defendant approached him for grant of leave and licence to use the suit premises for a period of eleven months on monthly compensation of Rs. 375/- and accordingly a leave and licence agreement was entered into on 1st July, 1970 between the plaintiff and the defendant. Accordingly, a portion of the suit premises was given to the defendant as per the terms and conditions of the said agreement. The plaintiff kept the other portion of the premises for his charcoal business. Under the agreement, the defendant was allowed to use the suit premises for his business. Further, the defendant was to hand over the suit premises on expiry of the said licence i.e. on 31st May, 1971. On 29th April, 1971 the plaintiff sent a notice through his Advocate to the defendant, calling upon him to hand over the suit premises to him, the plaintiff, on or before 1st June, 1971. The defendant did not give any reply to the said notice nor he paid the licence fee for the month of May 1971. According to the plaintiff, the defendant committed breach of the terms and conditions of the agreement by allowing third party viz., one F. Pareira to use the suit premises. It reveals from the record that instead of giving possession of the suit premises, the defendant filed a false criminal complaint against the plaintiff on 31st May, 1971 and the defendant changed the lock of the premises, thereby preventing the plaintiff from entering into the suit premises. A counter criminal complaint was filed by the plaintiff against the defendant. In the said circumstances, the plaintiff filed the instant suit against the defendant.

3.The defendant filed his written statement denying that the suit premises was given on leave and licence basis. The intention of the parties was to create sub-tenancy and to have exclusive use and occupation of the suit premises. It was contended that as the defendant is a sub-tenant of the suit premises, the Civil Court has no jurisdiction to hear this suit.

4.The necessary issues were framed by the trial Court. After recording the evidence and hearing the arguments of the learned Counsel for both sides, the learned trial Judge by his impugned order decreed the suit directing the defendant to hand over possession of the suit premises to the plaintiff and to pay arrears at the rate of Rs. 375/- per month till delivery of possession. Hence this first appeal by the appellant-defendant and the cross-objection by the respondent-plaintiff.

5.Heard Mr. S.S. Pandit, learned Counsel for the appellant-defendant, and Mr. Madhukar Soochak, learned Counsel for the respondent-plaintiff.

6.Mr. Pandit, learned Counsel for the appellant-defendant, has vehemently submitted that the suit is barred by section 28 of the Bombay Rent Act, as the Civil Court has no jurisdiction to decide the suit. In support of his argument, the learned Counsel has relied on a ruling in (C.J. Ghadiali and others v. Z.B. Wadiwalla)1, reported in 1981 Maharashtra Law Journal 876 wherein it has been held thus :---

"Court sitting in appeal from a decree passed in a suit filed in the City Civil Court wherein the

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