1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1481 OF 1994 Premier Ltd. .. Petitioner versus Shaikh Jalaluddin Amiruddin Karim Ashraff alias Kallu Changu & Ors. .. Respondents Mr.Simil Purohit i/by Wadia Ghandy & Co alongwith Mr.Anand Shah for the petitioner. Mr.C.G.Gavnekar i/by Sunil Singh for respondent Nos.1, 2 and 4. CORAM : A.S.OKA, J. DATE : 5th May 2010. JUDGMENT: . The petitioner-original defendant has taken an exception to concurrent decrees passed by the Courts below in favour of the predecessor of the respondents. For the sake of convenience, the parties are hereby referred to with reference to their status before the trial Court. 2. The plaintiff filed a suit claiming that he was a tenant of the predecessor of the petitioner (Premier Automobiles Ltd). The plaintiff claimed a monthly tenancy in respect of structure admeasuring 20’ X 20’ wherein he was carrying on laundry business. The structure was situated in the residential 2 colony of the petitioner at Kurla, Bombay. The case of the plaintiff was that he occupied the suit premises in the year 1951. The case made out in the plaint is that on 5th December 1975 the plaintiff was dispossessed by the defendant and thereafter the suit structure has been demolished. There is a reference to the proceedings under section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code) as well as a criminal complaint. The prayer made by the plaintiff was for restoration of the suit premises and for perpetual injunction restraining the defendant from parting with the possession of the suit land and/or putting up any structure thereon. The suit was contested by the defendant by filing written statement. The case made out in the written statement in short is that the plaintiff was never a tenant and he was merely a licensee inducted under a leave and licence Agreement executed in the year 1961. It was contended that the licence was renewed from time to time and lastly it was renewed till the month of June 1969. Thereafter, the licence was never renewed. It was contended that the structure of the suit premises was in dilapidated condition and it collapsed in the midnight of 5th December 1975. 3. The trial Court came to the conclusion that the plaintiff has proved that he was a monthly tenant in respect of suit premises and that the plaintiff established that he was dispossessed by the defendant by demolishing the structure. The trial Court held that the defendant has failed to prove that the structure came down in natural course and that it was not demolished by the staff of the defendant. Therefore, the suit was decreed and a mandatory 3 injunction was issued directing the defendant to reconstruct the structure. An appeal was preferred by the defendant. During the pendency of the appeal, under the orders of this Court, the alleged leave and licence Agreements were permitted to be produced by the petitioner-defendant and a permission was granted to lead additional evidence. Evidence of hand-writing and finger print expert was adduced by the defendant. The appeal bench of the Court of Small Causes dismissed the appeal and therefore, the defendant has filed the present writ petition under Article 227 of the Constitution of India. 4. The learned counsel appearing for the petitioner submitted that this was a clear case where the plaintiff was inducted in the suit premises as a licensee. He submitted that the plaintiff admitted in the F.I.R lodged by him that he was a licensee. He submitted that the witnesses Mahadik and Diwanji examined by the defendant had proved the execution of Leave and licence Agreements. He pointed out that both the hands of the plaintiff were amputed and his toe impression was affixed on the agreement. He submitted that there is a categorical opinion of finger print expert after comparison of admitted toe impression and disputed toe impressions that Agreements of Leave and licence were bearing toe impressions of the plaintiff. He submitted that once execution of the Leave and licence Agreements was established, the burden was on the plaintiff to establish his plea of tenancy. He submitted that in fact the plaintiff never disputed the execution of leave and licence Agreements. He submitted that the Appellate Court has come to 4 an erroneous conclusion that the Agreements of leave and licence have not been proved. He submitted that there was no necessity of examining the attesting witnesses. He submitted that the case of the plaintiff was that he was inducted as a tenant in the year 1951. He submitted that the plaintiff could not establish the said case. He submitted that the plaintiff relied upon the alleged rent receipt of the year 1957 which was not at all duly proved. He submitted that on the basis of alleged rent receipts which were not proved, no finding can be recorded that the plaintiff was the tenant. He invited my attention to the finding of the Appellate Court that the suit premises was given by the defendant to the plaintiff with a view to oblige Dr.Rajendra Prasad who was the first President of India. He submitted that this itself shows that there was no intention to create a tenancy. 5. He submitted that the Appellate Court could not have discarded the opinion of the hand writing expert who was examined before the Court. He submitted that on the face of the opinion of the hand writing expert, an adverse inference could not have been drawn against the petitioner- defendant for not examining the witnesses Mr.Raje, Mr.Desai and Mr.Rao. He submitted that the testimony of the plaintiff’s son has to be discarded in as much as he was present in the Court when the deposition of the original plaintiff was recorded. He relied upon a decision of the Allahabad High Court in the case of Lalmani Vs. Bejai Ram Chaudhari and Anr (AIR 1934 Allahabad 840). He submitted that the inference drawn by the Appellate 5 Court that the members of the staff of the defendant must have demolished the suit premises has no basis. He submitted that admittedly the suit premises was in a dilapidated condition. He submitted that in section 145 proceedings initiated by the original plaintiff, a categorical finding was recorded by the learned Magistrate that the suit premises was not demolished by the defendant but it must have been destroyed in hurricane. He submitted that the finding of the Court in proceedings under section 145 was relevant and the same ought to have been read in evidence in view of the law laid down by a Division Bench on Calcutta High Court in the case of Baroda Prosad Roy Chowdhury Vs. Manmatha Nathi Mitra (AIR 1918 Calcutta 544). He placed reliance on a decision of the Apex Court in the case of K.G. Premshankar Vs. Inspector of Police & Anr [(2002) 8 Supreme Court Cases 87]. He submitted that there was no evidence to show that the demolition was made by the petitioner-defendant. 6. The learned counsel appearing for the respondent invited my attention to the findings of both the Courts below. He submitted that rent receipts issued by the petitioner-defendant were duly proved in the evidence of the witness examined by the petitioner-defendant. He submitted that once it is established that the plaintiff was inducted as a tenant unless there is evidence of termination of tenancy, the subsequent leave and licence Agreements were irrelevant. He submitted that the concurrent findings of the Courts below are based on evidence on record with which no interference 6 can be made in writ jurisdiction. He submitted that it is the case made out by the petitioner that there was a storm in Bombay in December 1975 and due to hurricane, the premises came down. He submitted that the said story is completely unbelievable which is rightly discarded by the Courts below. 7. I have given careful consideration to the submissions. At the outset, it must be noted that both the Courts below have made an elaborate discussion of the oral and documentary evidence on record. The Appellate Court has considered the additional documents which were permitted to be produced and especially the evidence of finger print expert Mr.Gajjar. 8. The case of the plaintiff is that he was inducted in the suit premises as a tenant in the year 1951. The case of the petitioner-defendant is that the plaintiff was inducted in the year 1961 under a leave and licence Agreement which was renewed from time to time till 1969. Reliance has been placed by the plaintiff on the rent receipts and the defendant has pressed into service leave and licence Agreements allegedly bearing toe impression of the original plaintiff. It must be noted here that the plaintiff produced two rent receipts. The rent receipts at Exhibit A were shown to witness Mr.N.V.Diwanji, Assistant Personal Manager of the defendant. He specifically admitted that the receipts at Exhibit A were issued by the defendant- company and that the receipts relate to the laundry premises subject matter of the suit. He was confronted with receipt at Exhibit B which is again a rent 7 receipt. He accepted that the rent receipt was issued by the defendant- company which pertains to the suit premises. Both the trial Court and the Appellate Court have adverted to this crucial aspect. The trial Court noted that rent receipts at Exhibit A were for the month of June 1957 and August 1958 and that is how the trial Court accepted the case of the plaintiff that he was monthly tenant in respect of the suit premises at least from 1957 onwards. It must be noted that the witness Diwanji in his evidence stated that the leave and licence Agreement has been produced in the Court of Magistrate at Kurla and he was not possessing any record relating to leave and licence Agreement. The leave and licence Agreements were not produced before the trial Court. In appeal preferred by the petitioner, an application was made by the defendant-tenant seeking production of copies of the Leave and licence Agreements. It appears that the application was rejected by the Appellate Court. The matter was carried to this Court by the petitioner by filing a writ petition. This Court allowed the writ petition and permitted the petitioner to produce additional documentary evidence. It appears that the Appellate Court permitted further evidence of the parties to be recorded on the said documents. The petitioner examined hand writing and finger print expert Mr.Gajjar who opined that the agreements were bearing the toe impression of the plaintiff. The Appellate Court referred to cross-examination of the expert in which he stated that as per the science of the finger print it cannot be ascertained whether the toe impression is of left toe or right toe. This is one of the grounds given by the Appellate Court for 8 not relying upon the opinion of the expert. There is a elaborate discussion by the Appellate Court of the oral evidence as well as report of the expert and his evidence and ultimately the Appellate Court found that the opinion was not worthy of acceptance. 9. In my view, even assuming that the leave and licence Agreements were produced and proved, the same will not help the petitioner for more than one reason. The rent receipts relied upon by the plaintiff which relate to the year 1957 onwards were admitted by the witness examined by the petitioner-defendant. He categorically admitted that the rent receipts were issued by the defendant-company and that the same are in respect of the suit premises. According to the case of the petitioner-defendant, the entry of the plaintiff was in the year 1961 on the basis of the Leave and licence Agreement. The plaintiff successfully proved the rent receipts of the year 1957 and 1958 which were admitted by the witness of the petitioner. The said receipts proved that the plaintiff was inducted as a tenant. It is not in dispute that in the year 1957 the protection of the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 was applicable to the suit premises. Once entry of the plaintiff as a tenant was established, the possession of the plaintiff was protected under the said Act of 1947. It is not the case of the defendant that there was a surrender of tenancy by the defendant at any point of time. It is not the case of the defendant that the relationship between the landlord and tenant was brought to an end by 9 obtaining a decree of competent Court on one of the grounds of eviction under the said Act of 1947. In absence of determination of tenancy or proof of surrender, even assuming that there were subsequent Leave and licence Agreements, the plaintiff will not be deprived of the protection of the said Act of 1947. It is pertinent to note that the alleged Leave and licence Agreements could not be produced by the defendants though the suit was pending for a period of six years. Apart from the finding of fact of the Appellate Court on the proof of Leave and licence Agreement, the aforesaid aspect, namely, the protection available to the plaintiff under the said Act of 1947 defeats the case of the defendant. 10. As far as demolition of the suit structure is concerned, though there is no averment to that effect in the written statement, the witness Diwanji in the cross-examination stated as under: “.... The shops are situated near staff colony. Generally in winter season during the period 1975 was normal except for one day when there was a storm during the mid-night of that day. This was on 5th and/or 6th Dec.1975. The suit premises collapsed in the said storm. I myself did not see the same being collapsed. There were other shed also but except for suit premises no other shed collapsed on that day. Some damage was caused to the other shed. .....” 10 11. Thus, case of destruction of the suit premises in storm was made out in the cross examination. Thus a very improbable and a new case was made out that on 5th December 1975 in the city of Mumbai there was a storm which resulted in the collapse of the premises. The witness admitted that there are other premises and sheds in the same locality but except for the suit premises no other shed collapsed. Thus, a new case was made out at the time of trial by the defendant that the so called storm in the city of Bombay in December 1975 destroyed the suit premises. There was absolutely no evidence adduced by the defendant to prove that there was such a storm in a December 1975 in Mumbai. That is how both the Courts below accepted the case of the plaintiff that the suit structure must have been demolished by the defendant. The original case pleaded in the written statement that the suit premises was in dilapidated condition was virtually given up by the petitioner-defendant at the time of trial and a new case of destruction of the premises due to storm was made out. When the new case made out was admittedly not substantiated, now the petitioner-defendant cannot fall back on the original case that the premises came down on its own. Thus, the petitioner-defendant neither proved the case of collapse due to its dilapidated condition nor proved the case of collapse due to storm. Therefore, an inference was drawn by the Courts that the suit premises was demolished by the staff of the defendant. Therefore, the conclusion drawn by the Courts below of demolition at the instance of the petitioner cannot be disturbed. 11 12. A submission was made that evidence of the son of the plaintiff will have to be discarded. On the basis of the rent receipts, the plea of tenancy was established by the plaintiff and therefore, even assuming that the evidence of the son is discarded, it will not improve the case of the petitioner. 13. A reliance was placed on finding recorded by the learned Magistrate in proceedings under section 145 of the said Code of 1973. The decision of the Apex Court in the case of K.G.Premshanker (supra) does not lay down that the finding of the criminal Court is relevant in a suit for declaration filed in the Civil Court. The learned counsel for the petitioner relied upon a decision of the Division Bench of the Calcutta High Court in the case of Baroda Prosad Roy Chowdhury Vs. Manmatha Nath Mitra (A.I.R 1981 Calcutta 544). Close scrutiny of the said judgment shows that what is held by the Division Bench is that the reasons recorded in orders passed in proceedings under section 145 cannot be relied upon. But the fact that a proceeding was filed and order was passed thereon must be taken into consideration as a part of history of the case. Thus, the Division Bench has not laid down that findings of the Court of Magistrate can be relied upon by a Civil Court. The said finding in the present case is given by Court of Magistrate of a limited jurisdiction in a proceedings of summary nature and therefore, the said finding have not been considered by the Courts below. 12 14. This is not a case where interference can be made in exercise of power of superintendence of this Court. There is no merit in the petition and the same is accordingly rejected. Rule is discharged with no orders as to costs. 15. At this stage, the learned counsel appearing for the petitioner seeks continuation of interim relief. I find that interim relief was granted in the year 1994 in terms of prayer clause (c). The said interim relief will continue to operate till 18th August 2010. (A.S.OKA,J)