Back
2018 Supreme(Bom) 1341
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
S.B. SHUKRE, J.
Abidbhai son of Ibrahimbhai and Ors. - Petitioners
Versus
Mohammed Ejaz son of Mohd. Bashir and Ors. - Respondents
Writ Petitioner No. 4186 of 2014
Decided On : 12-10-2018
For the Petitioners: Shri K.N. Shukul
For the Respondent: Shri C.S. Kaptan, Shri Masood Shareef, Shri B.M. Lonare
Headnote:
Bombay Shops And Establishments Act, 1948 - Agreement of tenancy - Claim that is occupying shop block - Petition challenges judgment and order January passed in Misc - Civil Appeal by District Judge- there by allowing application filed for grant of temporary injunction vide exhibit by respondent by upsetting order passed by Additional Judge Small Causes Court Nagpur rejecting this very application filed in civil suit brought against petitioners by respondent being Regular Civil Suit - Insofar as they are relevant for deciding question involved in this petition which is about an authority of District Judge in Misc - Civil Appeal filed against an order refusing temporary injunction to plaintiff basically in nature an appeal against discretion exercised by trial Court to undertake fresh exercise of considering prima facie merits of matter as if it is Court of first instance are stated in brief as – Held, Course there are some photographs but those photographs do not give any indication about possession and Judge Small cause Court was right in observing that hose photographs would not be sufficient to record any prima facie finding regarding possession – So it is obvious that pleadings are vague and material brought on record by respondent is insufficient - On this backdrop no finding about existence of prima facie case in favor of respondent could have bee recorded – Here court must say conduct of respondent in not making any efforts for seeking production of alleged rent agreement from petitioners is also relevant - In fact date of rent agreement itself is not mentioned in pleadings - It is also not case of respondent that he forgot date of agreement and therefore he was unable to give specific date - All these facts would show that parameters prescribed by Honble Apex Court in Maria Margarida supra in paragraphs are not met by respondent and this should be additional reason for me to uphold order passed by Additional Judge of Small Cause - Even otherwise as per law discussed earlier it is not open to appellate court much less court exercising supervisory jurisdiction to substitute its own views just because another view is possible unless it is established on record that view taken by court of first instance is patently illegal or perverse or arbitrary which is certainly not case here - About argument why petitioners parted with key to suit shop despite dispute and no answer having been given by them court find it has not been case of petitioners that they kept handing over key every day after dispute started and it is their case dispute started after respondent fled away with key and so court further find that there is no substance in argument - Petition allowed
1. Heard. Rule. Heard forthwith by consent of parties.
2. This petition challenges the judgment and order dated 17th January 2014 passed in Misc. Civil Appeal No. 99 of 2013 by the District Judge-7, Nagpur, thereby allowing the application filed for grant of temporary injunction vide exhibit 5 by respondent no. 1 by upsetting the order dated 2nd April 2013 passed by the Additional Judge, Small Causes Court, Nagpur rejecting this very application filed in a civil suit brought against the petitioners by respondent no. 1, being Regular Civil Suit No. 455 of 2012.
3. The facts, insofar as they are relevant for deciding the question involved in this petition, which is about an authority of the District Judge in Misc. Civil Appeal filed against an order refusing temporary injunction to the plaintiff, basically in the nature of an appeal against the discretion exercised by the trial Court, to undertake a fresh exercise of considering the prima facie merits of the matter as if it is a Court of first instance, are stated in brief as under :-
(1) Respondent no. 1 claimed that he is occupying a shop block admeasuring about 1750 square feet, ground floor of the house bearing House No. 13/0-1 standing on Plot No. 11, City Survey No. 3021, situated on Main Road, near Bata Showroom, Sitabuldi, Nagpur in the capacity as a tenant of the petitioner. For the sake of convenience, the shop block in question will hereinafter be referred to as the “suit shop”.
(2) Respondent no. 1 contends that he was inducted as a tenant in the suit shop some time in the month of February 2012 on a monthly rent of Rs. 20,000/- which was inclusive of Corporation taxes, but exclusive of the electricity charges. The tenancy month, according to respondent no. 1, commenced on the 1st day of each month as per the English calendar and ended on the last day of such month. Respondent no. 1 further submits, his induction into the suit shop was on the basis of an agreement which is said to have been obtained by the petitioners in February 2012. Respondent no. 1 submits that this agreement was retained by the petitioners and its copy was never supplied to him by the petitioners. Respondent no. 1 also submits that as a part of the tenancy agreement obtained from him by the petitioners sometime in February 2012, respondent no. 1 was required to pay an amount of Rs. 15,00,000/- in cash as a security deposit with a promise made by the petitioners that this amount would be refunded by them at the time when the suit shop would be vacated by respondent no. 1. This agreement of tenancy, according to respondent no. 1, was valid for a period of ten years from the date of agreement entered into by the parties sometime in February 2012 and this agreement also provided for 10% increase in the monthly rent payable by respondent no. 1 after expiry of each tenancy year. It was also provided in the agreement, as averred by respondent no. 1, that no receipt either acknowledging the receipt of the rent or cash deposit of Rs. 15 lakhs, would be issued by the petitioners to respondent no. 1 and respondent no. 1 submits that he had no option but to agree to all such terms of the petitioners.
(3) Respondent no. 1 submits that the suit shop was taken on rent subject to the aforestated conditions, for the purpose of carrying out his business of sale of readymade garments and his conduct has been all throughout was such as to never give any chance to the petitioners to be displeased with him. He also submits that he has promptly paid the rent for every month till November 2012 or the time when he filed a civil suit against the petitioners. Respondent no. 1 further submits that he has also engaged the services of 10-12 workers to assist him in carrying his business in the name and style of “M/s Bombay Fashion” from the suit shop. He also submits that he has obtained a licence under the Bombay Shops And Establishments Act, 1948 in respect of his business being run in the name and style of “M/s Bomba
