1 fa980-00 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.980 OF 2000 Sunder K. Shetty .. Appellant (Orig. Defendant) V/s. Vithal S. Shetty .. Respondent (Orig. Plaintiff) ..... Mr. M. P. Vashi for the appellant. Mr. Harwinder Toor and Mr. Himanshu V. Pradhan i/b. M/s. Crawford Bayley & Co. for the respondent. ..... CORAM : A.S.OKA, J. DATE : JUNE 24, 2011. ORAL JUDGEMENT : The submissions of the learned counsel appearing for the parties were heard on the earlier date. 2. It will be necessary to make a brief reference to the facts of the case. Appellant is the defendant and the respondent is the plaintiff in the suit. The plaintiff has claimed that he is the proprietor of the shop known as Nityanand Beedi Shop. He claims to be the owner of the structure of the shop. His case is that he is in exclusive use, occupation and continued possession of the business of Pan Beedi shop which is more particularly 2 fa980-00 described in paragraph No.1 in the plaint. The contention raised in the suit is that defendant was working with the plaintiff as his employee and in his capacity as an employee, he was looking after the said suit shop. It is alleged that the plaintiff has been paying Rs.20/- per day to the defendant on daily wages basis. It is contended that the plaintiff very often wared the defendant for his inefficiency or negligence. On 10th October, 1988, the defendant demanded a sum of Rs.2,000/- from the plaintiff and the plaintiff paid a sum of Rs.900/-. It is alleged that the plaintiff agreed to pay the balance amount on or before 31st October, 1998. However, the defendant filed a false complaint against the plaintiff and his wife on 23rd October, 1988. It is alleged that the defendant threatened the plaintiff either to pay an amount of Rs.5000/- on or before 9th November, 1988 failing which he would take forcible possession of the said shop premises. It is alleged that after the said incident, the plaintiff approached the trial Court by filing the present suit. The trial Court passed an order of ad-interim injunction restraining the defendant from entering the suit shop and from interfering in any manner with the possession of the possession of the plaintiff over the suit shop premises. 3. The suit was contested by the defendant by filing a written 3 fa980-00 statement. Various contentions were raised in the written statement. The defendant denied the claim of ownership made by the plaintiff. The perusal of the written statement shows that the contention of the defendant is that the plaintiff was never in possession of the suit shop and the defendant was carrying on the Pan Beedi business in the said shop premises since 1966. It is contended that the plaintiff was not the proprietor of the suit shop. It is contended that the plaintiff had executed a leave and licence agreement dated 19th April, 1992 in favour of the defendant. It is alleged that as per the said agreement, deposit of Rs.1000/- was paid to the plaintiff and defendant was paying Rs.100/- per month to the plaintiff. It is contended that by taking undue advantage of ex-parte ad-interim injunction granted by the trial Court, the plaintiff forcibly dispossessed the defendant from the suit shop. It must be noted here that the trial Court passed an interim order under which a Court Receiver was appointed and the defendant was appointed as an agent of the Court Receiver. Later on, the agency of the defendant was terminated and the Court Receiver was directed to keep the suit shop sealed till the disposal of the suit. 4. By the impugned Judgment and decree, the learned trial Judge accepted the case made out by the plaintiff and held that 4 fa980-00 the plaintiff has established his case that the defendant was his employee and that the plaintiff was the owner of the suit shop and the business. The learned trial Judge directed the Court Receiver to put the plaintiff in possession of the suit shop. 5. The learned counsel appearing for the appellant submitted that except for a purported unregistered agreement which has not been duly proved, the plaintiff did not produce any document of title to prove the ownership. He submitted that there is absolutely no evidence to prove that the defendant was the employee of the plaintiff. He submitted that on the contrary, there is evidence of electricity bill, pass book and other documents showing that the defendant was in possession and was running the suit shop. He submitted that the agreement of leave and licence executed by the plaintiff proves that the defendant was never a servant or employee of the plaintiff. He submitted that all the above aspects have not been considered by the trial Court and there is no explanation as to why the electricity continued to be in the name of the defendant. 6. The learned counsel appearing for the plaintiff submitted that the suit shop is a wooden stall and therefore, it is not an immovable property. He submitted that therefore, for 5 fa980-00 establishing the title, the plaintiff need not produce registered document. He submitted that the agreement executed by the predecessor in title of the plaintiff has been proved. The defendant has admitted the title of the plaintiff in the aforesaid Leave and Licence Agreement. He submitted that the defendant has set up ownership in himself which he failed to prove. He pointed out that the registration under the professional tax stands in the name of the plaintiff and the receipt of the payment of professional tax produced by the defendant shows the number of the registration of the plaintiff. He submitted that the shop licence and all tax bills in respect of the suit shop are in the name of the plaintiff which are more than sufficient to prove that he is the proprietor of the business conducted in the suit shop. He submitted that the mere fact that the Bank Passbook and LIC premium receipts produced by the defendant bear the address of the suit shop does not prove his title. Being an employee of the plaintiff, he must have given the address of the suit shop. He submitted that the evidence shows that the suit shop is standing in the name of the plaintiff and that for a long time the defendant was working as a servant of the plaintiff. He submitted that though electricity bill continued to be in the name of the defendant, the plaintiff has explained as to why the electricity bill continued in the name of the defendant, and, 6 fa980-00 therefore, the said bill is not sufficient to prove the case of the defendant. He submitted that no interference is called for. 7. I have carefully considered the submissions. Two points for determination arise in this Appeal. The first point is whether the plaintiff has proved that he is the owner of the suit premises and the proprietor of the business carried on in the suit premises. The second point is whether the plaintiff has established that the defendant was his servant. 8. As far as the first point is concerned, the learned counsel appearing for the plaintiff pointed out that a tax bill issued by the Municipal Corporation records that the suit shop is purely a wooden structure. As far as ownership of the suit shop is concerned, it is not necessary to go into the evidence regarding the title. The defendant himself relied upon an agreement dated 19th April, 1972 of leave and licence executed by the plaintiff in his favour in respect of the suit shop wherein the plaintiff has been described as the owner of the suit shop. Therefore, it is not open for the defendant to contend that the plaintiff is not the owner of the suit shop. 9. The real controversy is regarding the status of the 7 fa980-00 defendant. The specific case made out in the plaint is that the defendant was as employee of the plaintiff. The case in short is that as the defendant was merely an employee of the plaintiff, he was never in possession and that the possession always remained with the plaintiff. Therefore, the relief of prohibitory injunction has been prayed for and there is no prayer for possession. Thus, unless this plea is established, the suit must fail. The only material averments in that behalf is found in paragraph No.4 in the plaint which read thus: “ Plaintiff says that the Defendant was working with him as his employee and he had entrusted him with the job of looking after his said shop premises as and when he use to go for food etc. plaintiff was paying Rs.20/- per day on daily wages basis. The Defendant was very irregular in his attendance and becoming unfit in his duties. The Plaintiff has been very often warning him for his inefficiency on negligency. But, no use. Finally on 10.10.1988 under ill advice the Defendant demanded Rs.2,000/- from him to the Plaintiff gone to native place for which the Plaintiff agreed, looking at the condition of the Defendant. Plaintiff paid him R.900/- being part payment on 6.10.1988 and for balance, the plaintiff told the Defendant that on or before 31/10/1988 he would pay him the said amount. The Defendant got annoyed and went away by threatening the Plaintiff to teach a lesson. On 23.10.1988 under a false complaint of the Defendant and his wife, the Santacruz Police called me at the police station by asking his son to be in the said shop premises. The Defendant wanted to remove articles and things lying in the said shop premises. But when some of the relatives and friends interfered, the Defendant ran away with following items lying in the said shop premises.” 8 fa980-00 10. It is true that there may not be any document in writing appointing the defendant as an employee. However, this relationship is specifically denied by the defendant in the written statement. In the plaint, the plaintiff has not pleaded from what date the plaintiff had employed the defendant. It will be necessary to make a reference to the oral evidence of the parties. In paragraph No.9 of the examination-in-chief, the plaintiff stated thus: “9. The deft. Was serving with me as an employee since 1968 till about 1988. He was working as my employee in my business in the suit shop. I used to pay him salary of rs.5/- per day initially. At the time of filing the present suit or immediately before that Iw as paying him salary at the rate of Rs.20/- per day. The defendant was working in the suit shop as my employee till November 1988. He was not working properly and he used to come late and since I had asked him and not to continue him as my employee sometime in September, 1988. 2. On 1.10.1988, the defts. came to the suit shop alongwith 2-3 persons and demanded an amount of Rs.2000/- from me. I told him that I did not have that much amount with me on that day and that he should come on 6.10.1988. The deft. again came to the suit shop on 16.10.1988 and on that day I paid him Rs.900/-. He accepted that amount and told me that I should pay him the remaining amount on 3.10.1988. On 6.10.1988 also the deft. Was accompanied by 203 persons. On 1.10.1988 the deft. Had also threatened me. I had therefore lodged a complaint with the police at Santacruz police stn. The defts. Also threatened me on 6.10.1988 and on that day also I had lodged a complaint against him with the police.” 9 fa980-00 Thus, for the first time in the evidence, the plaintiff came out with the case that the defendant was serving with him as an employee from 1968 and initially he was being paid salary of Rs.5/- per day. This case was not made out in the plaint. Perusal of the cross examination and in particular paragraph No.14 shows that the plaintiff stated that he was running the suit shop from the year 1953. He further stated that the defendant was employed in the year 1958. The Relevant portion of the said paragraph No. 14 read thus: “ I know the deft. Since 1953. He used to come to my shop. I employed him as a servant in 1958. I have no documentary evidence to show that he was my servant.” Thus, there is variance in the case made out in the plaint, examination-in-chief and cross-examination of the plaintiff. If what is stated in paragraph No.14 of the cross-examination is correct, the defendant was employed by the plaintiff in the year 1958. Apart from the so called agreement of the year 27th March, 1953, there is no document produced on record for showing that in the year 1958, the plaintiff was carrying on business. The registration certificate under the Shops and Establishment Act, 1948 shows that the shop was registered on 26th October 1977. 11. The plaintiff examined one Shiva Babu Shetty as a witness. 10 fa980-00 He came out with an all together new version of the settlement arrived at between the plaintiff and the defendant. The witness states thus: “ I know the plaintiff. He is my neighbour at my native place. I know the defendant. I used to meet the defendant whenever I visited the plaintiff at his shop. On 6 th October, 1988 there was a meeting between the plaintiff and the defendant. The meeting was also attended by Nityanand, Shivram and Vishnu. I was present at the meeting. The meeting was at the residence of the plaintiff. The plaintiff had removed the defendant from his employment. The defendant wanted to go to the native place. He did not have enough funds to go. At the time of the meeting, the plaintiff gave him Rs.900/-. It was decided at the meeting that the plaintiff would pay Rs.2000/- to the defendant towards his balance salary. Vittal was to pay balance of Rs.1100/- to the defendant on 31st October, 1988.” (underline supplied) Neither in the plaint, nor in the examination-in-chief, the plaintiff has made any reference to the settlement arrived at in presence of the said witness. 12. As stated earlier, the electricity meter in the suit shop admittedly stands in the name of the defendant. In paragraph No.15 of the cross-examination, the plaintiff stated thus: “ There is electricity connection in the suit shop since about 1978. I had myself applied for the electricity connection to BSES. However when the persons from BSES had come for inquiry I had gone to 11 fa980-00 my native place. When I returned from my native place the electricity connection was already installed. Thereafter, when I received the electricity bills I found that it was in the name of the deft. When I asked the deft. about it he told me that since I was not present it was issued in his name. He told me that after some days we can again apply for transferring the bill in my name. I had applied to BSES for transferring the bills in my name some time in 1979 but I was asked to submit no objn. of the defts. I had not made an appln. for transfer in writing. The electricity bills still continues in the name of the deft. The deft. Continues to pay the bill but with my money.” Thus, from the year 1978, the electricity connection in the suit premises stands in the name of the defendant and it continued to be in the name of the defendant. It is very difficult to accept that the electricity connection was obtained in the name of servant receiving salary of Rs.5/- per day and it continued in the name of the alleged servant even till the recording of evidence. Existence of electricity connection of the suit shop in the name of the defendant from the year 1978 is not consistent with the case of the plaintiff that the defendant was merely his employee. The matter does not rest here. The defendant relied upon a leave and licence agreement dated 19th April 1972 executed by the plaintiff in his favour. In the examination-in-chief the plaintiff denied to have given the suit shop on leave and licence basis to the defendant. The said leave and licence agreement was produced by the defendant in his evidence and the same was admitted in evidence and was 12 fa980-00 marked at Exhibit-12. The Court noted that the signature of an advocate appearing on the said document was not proved and the rest of the document was proved. In the cross-examination of the defendant, he was given a suggestion by the advocate for the plaintiff that there was no further leave and licence agreement executed after the said agreement dated 19th April, 1972. The said suggestion was accepted by the defendant. In fact, it was brought on record in the cross examination of the defendant that he was paying Rs.100/- per month to the plaintiff and after 1991, he starting paying Rs.125/- per months. 13. Looking to the relief claimed in the plaint, the plaintiff will succeed only if he proves his case that the defendant was his employee. As pointed out earlier, there is a complete variance in the pleadings and evidence as regards the year of commencement of employment and the salary. What is important is that the cross-examination of the defendant shows that the leave and licence agreement executed by the plaintiff on 19th April, 1972 in respect of the suit shop was not disputed by the plaintiff. The leave and licence agreement was to remain in force till 30th April, 1973 with effect from 1st June 1972. If the case of the plaintiff is to be accepted, it would mean that till 1st June, 1972, the defendant was his servant at salary of Rs.5/- per day and on 13 fa980-00 1st June, 1972, his status was converted to a licencee or conductor of the business in the suit shop. It is not the case made out by the plaintiff that after 30th April, 1973, he again re- employed the defendant. The fact of execution of the leave and licence agreement by the plaintiff and the fact that the electricity connection continued in the name of the defendant right from 1978 completely militate against the case of the plaintiff that the defendant was his employee. All these aspects have been completely brushed aside by the learned trial Judge. The issue was in what capacity the defendant was involved in the business. The aforesaid crucial factual aspects and variance in the case made out by the plaintiff have not been noticed by the learned Judge in proper perspective. The suit proceeds on assumption that the defendant was an employee of the plaintiff. The finding of the trial Court on the said issue is based more or less on the fact that plaintiff has proved his title. The plaintiff claims to be in possession on the ground that the defendant is merely a servant. The finding recorded by the trial Court on that aspect is completely contrary to the material evidence on record. As the plaintiff has failed to prove that the defendant was his employee, the suit for prohibitory injunction must fail. It is not a suit for possession on title. In the circumstances, Appeal must succeed and I pass the following order: 14 fa980-00 :: O R D E R :: i. The finding of the trial Court on issue No.1 is confirmed. The finding of the trial Court that defendant was merely an employee of the plaintiff is quashed and set aside. Hence, the impugned decree directing the Court Receiver to hand over the possession is set aside. The suit stands dismissed. ii. The Appeal is allowed on the above terms with no order as to costs. iii. On the prayer made by the learned counsel appearing for the respondent, it is directed that the Court Receiver shall continue to remain in possession of the suit shop and shall not part with possession of the suit shop for a period of 12 weeks from today. (A.S.OKA, J.)