Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
ORBIT SUPER MARKET PRIVATE LIMITED, NAGPUR - Appellant
Versus
MUKTA ARVIND BOBDE - Respondent
Writ Petition No. 4777 of 2014
Decided on : 30-04-2019
Code of Civil Procedure, 1908 – Order 20 Rule 12 – Maharashtra Rent Control Act, 1999 – Section 16 – Transfer of Property Act, 1882 – Section 108 – Possession – By this writ petition, concurrent orders are being challenged whereby decree has been granted in favour of the respondents directing the petitioners herein to hand over peaceful and vacant possession of suit property i.e. house no.220, Ward no. 86, Ravindranath Tagore Marg, Civil Lines, Nagpur. An enquiry into mesne profits under Order 20 Rule 12 of the Code of Civil Procedure, 1908 has also been directed from the date of filing of the suit till possession is actually handed over to the respondents. – Held, It was strenuously argued on behalf of the petitioners that an adverse inference was required to be drawn against the respondents because respondent No.1 never entered the witness box and that the evidence of the respondent No.2 could not be considered by the Court as his evidence was hearsay in nature. – But, an admission given by the lone witness who appeared on behalf of the petitioners, in cross-examination shows that all discussions pertaining to the documents executed between the parties took place in the presence of husband of respondent No.1, Managing Director of petitioner No.1 (respondent No.3 herein) and the original defendant No.3. – Thus, when the respondent No.1 herself was admittedly not part of any of the discussions leading to the execution of the documents between the parties, merely because she did not enter the witness box could not lead to an adverse inference against the respondents. – It is also an admitted position that the husband of respondent No.1 and the original defendant No.3, both expired during the pendency of the proceedings before the Trial Court, as a consequence of which they could not be examined and the only remaining person present during the discussion i.e. original defendant No.2 (respondent No.3 herein) was never brought into the witness box by the petitioners. – Therefore, the petitioners cannot get any mileage on the basis that the respondent No.1 never entered the witness box. – In any case, the Courts below were justified in holding that such an adverse inference could not be drawn because when admissions given by the lone witness who appeared on behalf of the petitioners and the material and evidence on record amply proved the contentions raised on behalf of the respondents, no adverse inference could be drawn against the respondents only because the respondent No.1 did not enter the witness box. – Therefore, the said ground raised on behalf of the petitioners is also found to be without any substance. – Writ Petition Dismissed
MANISH PITALE, J.
1. By this writ petition, concurrent orders are being challenged whereby decree has been granted in favour of the respondents directing the petitioners herein to hand over peaceful and vacant possession of suit property i.e. house no.220, Ward no. 86, Ravindranath Tagore Marg, Civil Lines, Nagpur. An enquiry into mesne profits under Order 20 Rule 12 of the Code of Civil Procedure, 1908 (CPC) has also been directed from the date of filing of the suit till possession is actually handed over to the respondents.
2. The respondents filed a suit for recovery of possession of the aforesaid suit property against the petitioners in November, 2000 contending that the petitioners had violated terms of the lease agreements in pursuance of which they were put in possession of the suit property by the respondents and that, therefore, they were liable to hand over possession of the suit property to the respondents under Section 16 (1) (a) and (b) of the Maharashtra Rent Control Act, 1999 (for short "Act"). The respondents referred to four documents executed between the parties. These were deeds of lease dated 09.04.1990 (Exh.179), 05.06.1993 (Ex.180), 30.11.1994 (Exh.181) and 17.07.1995 (Exh.184). It was contended by the respondents that the deed of lease dated 30.11.1994 (Exh.181) and the subsequent registered lease deed dated 17.07.1995 (Exh.184) were documents that were not meant to be acted upon and that they had been executed only because of the request of the petitioners that such documents were required for the purpose of taking loan in order to construct Supermarket building in the suit property. For this purpose, the respondents heavily relied upon letter dated 27.07.1995 (Exh.178) sent on behalf of the petitioner no.1 to the respondent no.1 wherein it was acknowledged that the registered sale deed dated 17.07.1995 (Exh.184) had been executed solely for the purpose of taking loan from Banks and Financial Institutions and that the said document had been executed so as to satisfy the requirements of such Banks and Financial Institutions, as suggested by their lawyers. The respondents pointed out that the husband of respondent no.1 and the original defendant no.3 had very good personal relations and that as events unfolded later, it became evident that the said person had misused the faith reposed by the respondent no.1 and her husband, leading to the present litigation.
3. On the basis that the unregistered lease deed dated 30.11.1994 (Exh.181) and the registered lease deed dated 17.07.1995 (Exh.184) were not meant to be acted upon, the respondents contended before the Court of Small Causes, Nagpur, that the lease deeds dated 09.04.1990 (Exh.179) and 05.06.1993 (Exh.180) were the only documents that defined the relationship between the parties and that since the petitioners had changed the user completely and they had made permanent construction without permission of respondent no.1 and further since they had illegally sublet the suit property to one Sandipani School, the petitioners had made themselves liable to be dispossessed from the suit property under Section 16 (1) (a) and (b) of the aforesaid Act. It was pointed out that since there was violation of Section 108 (o) of the Transfer of Property Act, 1882, the petitioners were liable to be evicted. The respondents contended before the Small Causes Court that as per the lease deeds at Exh.179 and 180, the petitioners could have utilized the suit property only for construction of Supermarket and having failed to do so and further having permitted the school to be run from the suit property, they were liable to be evicted. It was pointed out that under the aforesaid documents at Exh.179 and 180, the term of the lease was at will and that it was terminable with a notice of one month on either side.
4. The petitioners filed their written statement and opposed the contentions raised on behalf of the respondents. They contended that the lease deed dated 17.07.199
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
