IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.302 OF 1989. FIRST APPEAL NO.302 OF 1989. FIRST APPEAL NO.302 OF 1989. Mrs. G.Annamma, Indian Adult, ) Inhabitant of Bombay, ) Residing at Flat No.51-B/47, ) 4th Floor, Manish Nagar, ) Versova Road, Andheri (W), ) Bombay 400 058. ) ...Appellant Versus 1. Shri Babubhai Atmaram Pancha,) Shop No.4, Kashi Kunj, ) S.V.Road, Malad (W), ) Bombay 400 064. ) 2. Jagannath Laxmi Narayan Kath-) palia, Shop No.4, Kashi Kunj,) S.V.Road, Malad (W), ) Bombay 400 064. ) 3. M/s.Heena Developments, ) Partnership Firm having its ) office its present office at ) 6, Vaibhav Jambli Gali, ) Borivali (W), Bombay 400 002.) ...Respondents --- Shri M.P. Tiwari for the Appellant. --- CORAM: ABHAY S.OKA, J. CORAM: ABHAY S.OKA, J. CORAM: ABHAY S.OKA, J. DATE : 29th & 30th January, 2008. DATE : 29th & 30th January, 2008. DATE : 29th & 30th January, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. I have heard the submissions of the learned advocate appearing for the appellant-plaintiff. None appears for the respondent Nos.2 and 3. The respondent No.2 is the contesting party. The appellant-original plaintiff has challenged the judgment and order dated 21st February, 1989 by which the suit for possession and ... 2 ... compensation has been dismissed by the learned Judge of the City Civil Court, Mumbai. 2. With a view to appreciate the submissions made by the learned advocate appearing for the appellant-plaintiff, it will be necessary to briefly refer to the facts of the case. 3. The appellant claims to be the tenant of shop No.4 in Kashi Kunj Building, S.V.Road, Malad (W), Bombay. The said shop No.4 is hereinafter referred to as the suit premises. According to the case made out by the plaintiff, the first respondent (first defendant) was allowed to conduct the business of the appellant in the suit premises and the first defendant had agreed to pay a sum of Rs.300/- per month to the appellant. According to the case of the appellant, the first defendant advanced a loan of Rs.5,000/- to the appellant which was not to carry any interest. According to him it was agreed that the first defendant would vacate the suit premises as and when called upon to do so by the appellant. 4. Initially the suit was filed only as against the first respondent. According to the case of the appellant, the first respondent violated order of injunction passed by the trial Court on 18th January, ... 3 ... 1982 by inducting the second respondent as a partner of his wife. It is alleged that the second respondent has been in possession of the suit premises from 05th March, 1984. It appears that the first respondent’s wife filed a declaratory suit in the Court of Small Causes against the appellant praying for a declaration that she was a lawful tenant of the suit premises. Injunction was granted in favour of the wife of the first respondent by the Court of Small Causes. The said injunction was vacated by order dated 29th October, 1984. 5. During the pendency of the suit in the trial Court, a court receiver was appointed with a direction not to dispossess the second respondent. A Chamber Summons taken out by the second respondent for impleading himself as a party defendant was dismissed by the trial Court. Thereafter a contempt Notice of Motion was taken out by the appellant against the first respondent. In the said Notice of Motion, the trial Court directed that the receiver should take over possession of the suit premises. The said order was challenged by the second respondent by filing a Civil Revision Application in this Court. By a consent order dated 17th February, 1987 the second respondent was ordered to be impleaded as a party defendant to the suit filed by the appellant and he was appointed as an agent of the court receiver. ... 4 ... 6. The appellant further stated by carrying out an amendment to the plaint that according to the case made out by the second respondent in his Chamber Summons, he was paying a sum of Rs.1,350/- per month to the first respondent by way of profit from the business carried on in the suit premises. The prayer in the suit is for declaration that defendants in the suit have no right, title and interest in respect of the suit premises and that the defendants be ordered to hand over the vacant possession of the suit premises to the appellant. A prayer for decree in the sum of Rs.48,600/- was made against the second respondent being the compensation or royalty payable from March 1984 to March 1987 at the rate of Rs.1,350/- per month. 7. The first defendant filed his written statement. However, it is not necessary to advert to the averments made in the said written statement as the defence of the said first defendant/first respondent was struck out by the trial Court and the said order has not been challenged by the first respondent. In the written statement filed by the second respondent it was contended that the appellant had transferred and assigned her tenancy rights in respect of the suit premises to the wife of the first defendant in the month of January 1976 and since then the first defendant’s ... 5 ... wife is in possession as a direct tenant. Reliance is placed on the suit for declaration filed by the first defendant’s wife in the Court of Small Causes at Bombay. It was submitted by the second defendant that he was inducted in the suit premises to carry on the business as partner of the first defendant’s wife. It was stated that on 05th March, 1984 the said partnership was dissolved. It was contended that the said respondent was in possession of the suit premises. The second respondent prayed for dismissal of the suit. 8. Before adverting to the submissions made by the learned advocate for the appellant, it must be pointed out that during the pendency of this appeal, the appointment of Court Receiver made by the trial Court was continued by this Court. My attention has been invited to order dated 07th April, 1992 passed by this Court in Civil Application No.124 of 1990. In the said order this Court noted that the second respondent committed the breach of terms and conditions of the Agency Agreement. This Court observed that the second respondent in breach of terms and conditions of the Agency Agreement appears to have allowed a third party to use the suit premises. Therefore, this Court proceeded to cancel the Agency Agreement executed in favour of the second respondent and directed that the appellant shall be put in possession of the suit ... 6 ... premises as an agent of the court receiver upon payment of Rs.350/- per month. That is how as of today the appellant is in possession as the agent of the court receiver. 9. During the pendency of the appeal, the third respondent-developer undertook development of the property in which suit premises was situated. It appears that the third respondent was impleaded as a party respondent under the orders of this Court. In Civil Application No.427 of 1995, by order dated 06th February, 1995 a Division Bench an passed order in terms of the consent terms between the appellant and the third respondent-developer. By the said order the appellant was permitted to amend the plaint as per schedule I annexed to the said Civil Application. The said amendment records that in lieu of the suit premises, the third respondent has agreed to provide shop No.2 in the newly constructed building and the said shop No.2 shall be allotted to the appellant. The consent minutes of the order record that appellant will hand over vacant possession of the suit premises to the third respondent and the said respondent will hand over vacant possession of newly constructed shop No.2 to him. The minutes of order provide that the appellant shall occupy the newly constructed shop No.2 as the agent of the Court Receiver. Accordingly, the appellant is in possession ... 7 ... of the newly constructed shop No.2 as the agent of the Court Receiver. 10. The appeal stands dismissed as against the first respondent in view of the order passed by the Additional Registrar. The submission of the learned advocate for the appellant is that the first respondent had no right in respect of the suit premises. He submitted that the second defendant claims to be a partner of the wife of the first respondent and claims to be in possession in his capacity as a partner. He submitted that in the declaratory suit filed in the Court of Small Causes by the wife of the first respondent, initially ad-interim relief was granted which was vacated by order dated 29th October, 1984 by holding that the wife of the first respondent was merely occupying the suit premises as the conductor of the business. He submitted that the said suit has been thereafter dismissed. He submitted that the fact that the appellant-plaintiff is the tenant in respect of the suit premises is not disputed and as the second respondent has no right, a decree for possession must follow. He invited my attention to the oral and documentary evidence on record. None appears for the second and third respondents. Yesterday when the appeal was heard, none appeared for the said respondents. 11. I have carefully considered the submissions. It ... 8 ... will be necessary to refer to the evidence of the second respondent (second defendant). The specific case on oath is that he entered into partnership with the wife of the first respondent. He produced in evidence the Partnership Deed. He has stated about his transaction with the wife of the first defendant. He stated that his Partnership with the wife of the first respondent was dissolved on 05th March, 1984 and as result he became the sole proprietor of the business. He has been extensively cross-examined by the advocate for the appellant. In the cross-examination, he stated that there was no transfer of tenancy by the wife of the first defendant. He stated that the wife of the first respondent orally informed him that she had nothing to do with the suit premises and he can deal with the suit premises. In the cross-examination he admitted that he obtained certified copies of the papers of the suit filed by the first respondent’s wife in the Court of Small Causes. It must be stated here that in examination-in-chief the second respondent has not disputed the fact that the appellant was the tenant in respect of the suit premises. The second respondent has not examined the first respondent’s wife to establish alleged tenancy rights claimed by the first respondent’s wife. Therefore, the second respondent has not led any evidence to show that he had any right, title or interest to occupy the suit premises. ... 9 ... 12. It will be necessary to refer to the impugned judgment and order. In paragraph No.6 of the impugned judgment the learned trial Judge has recorded a statement of the advocate for the second respondent that he does not dispute that the appellant-plaintiff continues to be the tenant in respect of the suit premises. In view of this statement, the learned Judge noted that the issue No.1 framed on issue of tenancy was not pressed. The defence of the first defendant was struck out. A specific case made out by the first defendant in the written statement was that he was a sub-tenant of the appellant or that the was a joint tenant of the suit premises alongwith the appellant. Issue No.3 was framed on the basis of the said plea. The learned Judge has observed that the said issue will not survive as the defence of the first respondent has been struck out. It must be noted here that though the first respondent could have made a limited cross-examination of the witness examined by the appellant, he has chosen not to do so. Once the first respondent fails to establish his plea of sub-tenancy or joint tenancy, it is obvious that the first respondent had no right to occupy the suit premises and that is why the learned trial Judge has accepted the case made out by the plaintiff that the first respondent was merely conducting the business on behalf of the appellant. The ... 10 ... first respondent never challenged the order by which his defence was struck out. 13. As stated earlier the second respondent has not established any right to occupy the suit premises as the second respondent has not proved that the first respondent’s wife was the tenant in respect of the suit premises. Therefore, the declaration as prayed ought to have been granted. The decree for possession ought to have been passed against the second respondent. The appellant has prayed for a money decree as against the first defendant/first respondent. As the appeal stands dismissed as against the first respondent, there is no question of passing any decree against the first respondent. As far as the mense profits are concerned, an enquiry will have to be held as per the provisions of Rule 12 of Order 20 of the Code of Civil Procedure, 1908. 14. As pointed out earlier, in the interim orders passed by this Court, the possession of the suit premises was surrendered to the third respondent and the third respondent allotted newly constructed shop No.2 in lieu of the suit premises. Therefore, relief will have to be moulded accordingly. 15. Hence, I pass the following order: ... 11 ... (i) It is hereby declared that the second respondent has no right, title or interest in respect of the suit premises as well as the newly constructed shop No.2. (ii) It is hereby declared that the appellant is entitled to possession of the suit premises and the said shop No.2 and the second respondent has no right to remain in possession thereof and therefore the appellant is entitled to decree for possession against the second respondent. (iii) As of today the appellant is in possession as the agent of the Court Receiver. The Court Receiver will cancel the Agency Agreement within a period of 12 weeks from today and on expiry of period of 12 weeks from today, the receiver will stand discharged without passing accounts. The appellant will be liable to pay requisite charges and fees of the Court Receiver and on expiry of period of 12 weeks from today, the Court Receiver will put the plaintiff in ... 12 ... possession of the newly constructed shop No.2. (iv) There shall be an inquiry under Order XX Rule 12 for determination of mesne profit payable by the second respondent. (v) The second respondent will pay proportionate costs of suit and this appeal to the appellant. (vi) After deducting charges and fees due and payable to the Court Receiver, the royalty/compensation amount deposited with the Court Receiver shall be paid to the appellant on expiry of period of 12 weeks from today. (vii) The said amount shall be adjusted towards mesne profit which may be determined in the inquiry as ordered above. (viii) The appeal is allowed in above terms. (ix) The parties and Court Receiver to act upon an authenticated copy of this order. ... 13 ... JUDGE JUDGE JUDGE