* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 776 OF 2009 Shri. Vilas Kedari Nikam .......Appellant/Orig.defd V/S. Shri. Rajnikant Appaji Shinde .....Resp/Orig.Plff ------- Ms. S.M. Holmagi h/f. Mr. M.V.. Holmagi, adv.for appellant. Mr. D.M. Joshi, adv.for respondent. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 18th DECEMBER, 2009. P.C. :- 1. This appeal which was filed in the year 2000 has come up for admission for the first time, nine years thereafter. It appears that the appeal was not numbered until recently due to non-removal of office objections. The appellant who is the original defendant challenges by this appeal the judgment and decree dated 20th October, 1999 passed by the Bombay City civil court decreeing the suit filed by the respondent. 2. Heard the counsel for both sides for admission of the appeal. 3. The facts of the case stated in brief are as follows :- * 2 * . The respondent was carrying on business therefrom in the name and style of `V.N. Cycle Mart of hiring and repairing bicycles with ’ the assistance of his mother, Savitribai. Sometime prior to the year 1964, Shamji Karamji the employer of the respondent and owner of the property at Shamji Karamsi Wadi, Kama Galli, Ghatkopar had allotted him an open space admeasuring 10 feet x 17 feet for the purpose of his business. The land is a corner space to the west of the compound facing the road in Shamji Karamsi Wadi. The respondent had constructed a shed at the space and used to store and park his bicycles in the shed. The appellant is the brother-in-law of younger brother of the respondent. With the permission of the respondent, the appellant used to sometime sit in the cycle shop alongwith Savitiribai to assist in the business. Sometimes, he sat there, doing his own work also. About 4 to 5 years prior to filing of the suit, the landlord had handed over the property to Punit Builders for development. This gave rise to the prospect for the respondent to get alternate premises in the construction that was to come up on the land. Since then, the attitude of the appellant changed and he started harassing the respondent and his mother. Therefore, the respondent withdrew his permission to the appellant to sit in the cycle shop. The appellant then brought bicycles and kept the same about 15 to 20 feet away from the shop. Therefore, the respondent filed the suit herein for a declaration that the appellant has no * 3 * right to trespass on the suit herein being the shop for a permanent injunction to restrain the appellant from entering into the premises and/or disturbing the respondent s peaceful possession of the premises and ’ disturbing the business. 4. The appellant in his written statement denied the entire case of the respondent and claimed that the sp[ace of the shed was in fact acquired by him for his business of cycle repairing and hiring in the name and style of V.N. Cycle Mart. According to him, `V.N. stands for his own initials. ’ The appellant however in the written statement has not given any particulars whatsoever of the acquisition of the premises and the business carried therefrom. On consideration of the pleadings, the trial court framed the following issues for its consideration. 1. “ Does the plaintiff prove that he was in exclusive use, occupation and possession of the Shed admeasuring about 10 ft x 17 ft and the road side corner space to the west of the compound facing the road in the property namely Shamji Karamshi Wadi, Kirol Road, Ghatkopar (West), Mumbai-400 086 ? 2. Does the plaintiff prove that he was carrying on business of bicycle hiring and repairing in the suit premises ? 3. Does the plaintiff proves that the defendant was gratuitously allowed to sit in the suit premises alongwith the plaintiff or his mother-in-law for some period and thereafter the defendant discontinued to sit in the suit premises ? 4. Does the defendant prove that he has independent right in or upon the suit premises ? * 4 * 5. Does the plaintiff is entitled to relief of declaration and injunction as sought for by him in the plaint ? 6. What relief and order ?” 5. The respondent examined himself in support of his case. The appellant after cross-examining the respondent on a couple of days did not attend the court and suit came to be decreed thereafter. 6. Ms. Holmagi, the learned counsel for the appellant, submits that the trial court erred in decreeing the suit without giving sufficient opportunity to the appellant to cross-examine the respondent and to lead his own evidence in the matter. It is contended that the trial court ought not to have taken into consideration the evidence of the respondent, as his cross examination was not completed. Ms. Holmagi, submits that the cross-examination of the respondent could not be completed on account of ill-health of his advocate, Mr.Holmagi. 7. Most of the grounds of the appeal relate to lack of opportunity to the appellant. I will first deal with the same before touching on the merits of the case. The record shows that the trial in the suit had commenced on 31st August, 1998. The examination-in-chief of the respondent was completed on 7th September, 1998. The cross- examination was started 7 months thereafter i.e. on 4th March, 1999. It * 5 * was continued on 10th March, 1999. Then after some adjournments, on 18th October 1999, when an application was made for an adjournment on account of ill-health of Advocate Mr. Holmagi, the learned Judge adjourned the matter by awarding costs quantified at Rs.500/- and posted the matter to 22nd October, 1999. On the adjourned date, once again an application was made for an adjournment, this time on the ground of the learned advocate being out of station. Therefore, the court awarded further costs of Rs.1,000/- to be paid to the respondent. The appellant did not comply with either of the orders. He has not paid the costs as awarded by the court. Therefore, the learned judge consequently proceeded under Order 17 Rule 3B for pronouncement of judgment, by treating the cross-examination to be closed. None of these facts are disputed by the appellant. There is no explanation whatsoever forthcoming for non-compliance with the order of costs awarded by the Bombay City Civil Court. In the circumstances, no fault can be found with the Bombay City civil court for proceeding the matter under Order 17 Rule 3 and the next relevant provision of Rule 2 reads as follows :- O.17 R.3. Court may proceed nothwithstanding either party fails to “ produce evidence etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further * 6 * progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,- R.2 Costs of adjournment- In every such case the court shall fix a day for the further hearing of the suit, and [shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fit] [Provided that,- (a)........ (b)....... (c)......... (d)........ (e)...... 8. This brings me to the merits of the case. As is discussed in the impugned judgment, there is extensive evidence produced by the respondent of acquisition of the premises as well as ownership of the business carried therefrom. He deposed that the land admeasuring 10 feet x 17 feet in Shamji Karamsi Wadi in a corner of west-side of the building was given to him by the then owner and landlord Shamji Karamsi Seth. The respondent was working with Shamji Karamsi. In that connection the landlord had issued two letters giving no objection to keep cycles and auto-rickshaw, which are marked as Exhibit-A collectively. The respondent was issued a Certificate under the Bombay Shops and Establishments Act by the B.M.C. in respect of the business of V.N. Cycle Mart. The electricity connection to the cycle shop stands in the name of the respondent. The electricity bills produced are at Exhibit-D collectively. The respondent also produced bills for municipal * 7 * taxes (Exhibit-C) collectively, and 6 bills issued by BSES (Exh-D) collectively. He produced three receipts dated 5/2/1981, 5/12/1989 and 27/11/1993 issued by the Bombay Municipal Corporation under the Shops and Establishments Act for renewal of registration of his establishment. The respondent had paid the municipal taxes (Exhibit-H) collectively. There was a final notice issued by the Assistant Collector (Exhibit-I) and the notices issued by BMC calling upon the respondent to produce any evidence in respect of the existence of the suit structure since prior to the datum line, 17th April, 1964 as it alleged that the suit shed is an unauthorized structure. The respondent had replied to the notice by his letter dated 2nd October, 1980. It appears that later when the property was sold by the landlord, the builder issued an advertisement was issued in the Free Press Journal wherein the respondent was shown to be the tenant in respect of the structure (Exhibit-K), One Pratap B. Majithia, the partner of the builder has executed an affidavit stating that the respondent would be given an alternate accommodation admeasuring 8 feet x 12 feet in the newly constructed building. All these documents standing in the name of the respondent clearly establish that the business of V.N. Cycle Mart carried out from the premises in dispute is owned by the respondent and not by the appellant. The appellant has made an attempt to explain all the documents relating to the business * 8 * standing in the name of the respondent by claiming that he had got the documents issued in the name of the respondent, because the respondent is closely related to him. This is has been rightly disbelieved by the Bombay City Civil Court. In the circumstances, there are no disputed questions arising in the appeal for consideration of this court. Hence, the appeal is liable to be dismissed in limine, without admission. 9. During the pendency of the suit, the Bombay City Civil Court by the order dated 8th May, 1990 appointed Court Receiver, High Court, Bombay as Receiver of the suit structure. By the order dated 21st January, 1991 passed in the appeal from order, this court directed that the Court Receiver shall not give possession to anybody. When the suit was disposed off by the impugned judgment and order, unfortunately the Bombay City Civil Court did not pass the order of discharge of the Court Receiver. As a consequence, the Court Receiver simply continued in respect of the suit structure. On 17th June, 1994 representative of the court Receiver visited the suit structure in pursuance of the order dated 20th April, 1994 and noticed that the roof of the suit shed had completely fallen and its tin shed wall had become rusty and broken. He therefore submitted his report dated 28th June, 1994 to this court. Thereafter, the court Receiver obtained estimate for costs of the probable repairs to the suit shed, which was about Rs.50,070/-. As the court Receiver was not * 9 * able to get the work of repairs done, by the order dated 6th May, 1998 the appellant who had deposited an amount of Rs.50,070/- with the Court Receiver towards the expenses of repairs was permitted to carry out repairs to the suit structure by utilising the amount of Rs.50,070/- deposited with the Receiver. Accordingly, the Receiver returned the amount of Rs.50,070/- to the appellant on 3/5/1998. Since then, the appellant has not intimated the Court Receiver regarding the repairs to the suit shed. Therefore, the Court Receiver has filed his report dated 19th November, 2009 seeking directions in respect of the suit shed. The appellant has filed his reply to the Receiver s report. Apparently, the ’ respondent has been occupying and using the premises since May, 1998. In his affidavit-in-reply the appellant gives no explanation whatsoever for not informing the Court Receiver about the repairs to the suit shed and about its occupation. It is shocking that even the Court Receiver has not bothered to make any inquiries in respect of the same, until the present appeal came up for admission. It is thus seen that the appellant has been in possession of the suit shed without any agency agreement and without payment of any royalty whatsoever. However, since the respondent has also not taken any steps whatsoever in respect of the suit shed during all these years, this court is not inclined to pass any order as regards any royalty to be paid by the appellant to the respondent. * 10 * The appellant however cannot be allowed to continue to occupy the suit shed. He is also not entitled to claim the expenses of repairs incurred by him as he has utilized the shed without paying any royalty to the Court Receiver. In these circumstances, the appeal is dismissed with costs. The Court Receiver shall hand over possession of the suit shed to the respondent within a period of 6 weeks from today. 10. The Court Receiver is discharged without taking any accounts , but on recovering his costs, charges and expenses. [JUDGE]