1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7110 OF 2008 WITH CIVIL APPLICATION NO.207 OF 2009 Shri Sunil L. Anthony. .Petitioner. V/s. Smt.Ayodhyabai J. Suryawanshi. ..Respondent. Mr.Rajiv Patil i/b. Sandeep S. Jinshiwale for Petitioner. Mr.Chirag Such i/b. V.N.Shingarpure for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 27, 2009. DATE : JANUARY 27, 2009. DATE : JANUARY 27, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the competent authority in exercise of powers under section 24 of the Maharashtra Rent Control Act, 1999 for recovery of possession and damages. The principal argument of the Petitioner is that the document Exh.30 which has been heavily relied by the Competent Authority to answer the issue against the Petitioner was not an 2 admissible document. Besides, the Petitioner had not executed the said affidavit at all. According to the Petitioner, this specific stand is taken by the Petitioner before the lower Court which is reinforced from the evidence of the Petitioner given before the Competent Authority. However, the same has not been addressed by the Court below at all. On the other hand, the Court proceeds on the erroneous assumption that the Petitioner had admitted the execution of the document Exh.30. 3. The above argument has been rightly countered by the Counsel for the Respondent by pointing out the statement made by the Petitioner in his examination in chief. In paragraph-2 of his evidence in unambiguous term the Petitioner has stated as follows: "The subject agreement alleged at Exh..30 is signed by me as proprietor of Eureka Transaction which further certifies and makes the fact evident that the suit premises let out for the purpose of business". Thus, the Petitioner has admitted the execution of document Exh.30, but wanted to assert that the purpose of letting out the suit premises was for the purpose of business. Counsel for the Petitioner has invited my attention to the statement made in paragraph-5 and in the cross-examination 3 recorded on 11th September, 2006 to contend that the Petitioner has specifically stated that he had not executed Exh.30. The fact that subsequently the Petitioner has denied the execution does not militate against the Respondent or the finding recorded by the Court below. Subsequent stand taken by the Petitioner cannot be the basis to ignore the earlier stand taken in paragraph-2 where he has admitted execution of Exh.30. Keeping that statement in mind, no fault can be found with the opinion recorded by both the Court below that the Respondent has proved the document and the Petitioner in his evidence affidavit Exh. 60 has admitted execution of the said document Exh. 30. That is a finding of fact which is founded on the evidence on record and cannot be said to be manifestly wrong as is sought to be contended by the Petitioner. Once the existence of the said agreement has been established and the contents of the document have been proved by the Respondent in his evidence, it would necessarily follow that the said agreement by operation of law is made conclusive evidence. The Courts below have proceeded to examine the matter on that basis and have concurrently found that from the terms of the agreement it was obvious that the premises were given on leave and licence basis for residential use only. 4 That is a finding of fact, which cannot be overturned in exercise of writ jurisdiction-rather the same is binding on this Court. 4. The argument of the Petitioner that document Exh.30 is not admissible is addressed by two Courts below keeping in mind all the relevant aspects. The fact that the said document is not registered is also considered by the two Courts below. It is common ground that the said document has been ordered to be impounded and the Respondents have paid necessary stamp duty. In any case, keeping in mind the exposition of this Court in the case of Rajprasanna Rajprasanna Rajprasanna Kondur v/s.Arif Tahir Khan 2005(4) Bom.C.R.383 Kondur v/s.Arif Tahir Khan 2005(4) Bom.C.R.383 Kondur v/s.Arif Tahir Khan 2005(4) Bom.C.R.383, the fact that the document has not been registered does not denude the landlord licensor to pursue the claim under section 24 of the Act. This position is no more res integra. The Courts below have rightly placed reliance on the ratio of the said decision to answer the controversy in the facts of the present case. 5. Counsel for the Petitioner lastly submitted that the Petitioner may be permitted to rely on further documents in support of his stand, which the Petitioner did not produce before the lower Court. 5 This is obviously an attempt to protract the proceedings. Once the finding of fact recorded by the Court below is to be upheld that the document Exh.30 has been proved, the matter will have to be decided on the basis of the said agreement in view of the legal presumption. The application which has been now taken out is obviously an afterthought attempt. No tangible reason is forthcoming as to what prevented the Petitioner to rely on all those documents before the Court below in the first instance. Accordingly, request of the Petitioner for permission to produce further evidence and urge additional ground cannot be countenanced. 6. The Writ Petition as well as Civil Application 207 of 2009 both stand dismissed. 7. At this stage, the Counsel for the Petitioner submits that the Petitioner may be inclined to carry the matter in Appeal for which reason execution of the impugned Judgment and Order be stayed. There is no difficulty in accepting this request provided the Petitioner was to deposit the outstanding dues in terms of the impugned order for possession and damages passed against the Petitioner. That amount be deposited within two weeks from today, failing 6 which the Respondent will be free to proceed with the execution of the impugned Judgment and Order. If all the outstanding dues in terms of the impugned Judgment and Order is deposited within time, the operation of the order passed by the trial Court shall be kept in abeyance till 24th February, 2009 subject to Petitioner filing usual undertaking in this Court. The amount already deposited or to be deposited in terms of this order by the Petitioner be made over to the Respondent on furnishing solvent surety. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)