1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1025 OF 2008 M/s. Shaw Wallace & Co. Ltd. ..Petitioner. Vs. The Oriental Insurance Co. Ltd. and others ..Respondents. ... Mr. P.K. Dhakephalkar, Senior Advocate with Mr. Niranjan P. Shimpi for the Petitioner. Mr. V.Y. Sanglikar for Respondent No.1. ... CORAM: DR. D.Y. CHANDRACHUD, J. 20th June, 2008. P.C. : Rule, made returnable forthwith. Counsel appearing for the First Respondent waives service. By consent of the learned counsel, taken up for hearing and final disposal. 1. The proceedings are pending before the Estate Officer in a proceeding initiated by the First Respondent for eviction and for recovering arrears of rent and damages under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Before this Court it is common ground that the Petitioner has already surrendered possession of the premises to the First Respondent. The date on which possession was actually surrendered is a matter in dispute since according to the Petitioner possession was surrendered on 30th September, 2003 whereas according to the First Respondent possession was handed on 25th May, 2004. The date on which 2 possession was handed over need not detain these proceedings since that was not an issue before this Court at the present stage. The challenge is at this stage to an order dated 14th December, 2007 passed by the Estate Officer. 2. By the order impugned in these proceedings the Estate Officer has rejected an application filed by the Petitioner for the impleadment of certain third party companies viz. Sabmillar India Limited, Mysore Groveries Limited and MBL Investments Limited. According to the Petitioner, by agreements entered into with the aforesaid companies the Petitioner had transferred the management, business and administration of the premises to those companies. On this ground impleadment of the third party companies was sought. The Estate Officer is not in error in dismissing the application for impleadment of the aforesaid third parties. The First Respondent claims privity of contract between it and the Petitioner. The Petitioner was a licensee of the Third Respondent. In the event that the Petitioner had in turn entered into certain agreements with third parties that cannot be a ground for compelling the First Respondent to implead those third parties. The First Respondent has correctly instituted proceedings against 3 the Petitioner and the application for impleadment was therefore justifiably rejected. 3. The second ground of challenge is a direction which has been issued by the Estate Officer in the concluding part of his order directing the Petitioner to lead evidence first. The question as to who must lead evidence first in a proceeding under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 has been considered in a judgment of the Supreme Court in New India Assurance Company Ltd. v. Nusli Neville Wadia1. The Supreme Court held that where a composite proceeding is initiated by a landlord for the recovery of possession and for the award of damages respectively under Sections 4 and 7 of the Act, it is for the landlord to establish firstly his need for the premises and secondly the quantum of damages claimed from the occupant. In such an event it is for the landlord to lead evidence first to establish the claim. Paragraphs 29 and 31 of the judgment of the Supreme Court contain an elaboration of the position in law as follows : “Furthermore a proceeding may be initiated under Section 4 simpliciter. A composite proceeding may also be initiated both under Sections 4 and 7 of the Act. In the latter category of cases the landlord would be 1 (2008) 3 SCC 279. 4 required to establish not only the bona fide need on its part but also quantum of damages to which it may held to be entitled to, in the event that an order is passed in favour of the establishment.” “When an application for eviction is based on such grounds, which require production of positive evidence on part of the landlord, in our opinion, it would be for it to adduce evidence first; more so in a composite application where the evidence is also required to be led on the quantum of damages to be determined by the Estate Officer.” In this view of the matter the direction by the Estate Officer to the Petitioner to lead evidence first on the quantum of damages / compensation is manifestly unsustainable and would have to be set aside. The First Respondent has instituted a proceeding for the recovery of damages under Section 7. It is for the First Respondent to establish its claim by leading evidence. During the course of the hearing Counsel appearing for the First Respondent submitted that the First Respondent has tendered a compilation of documents and may not desire to lead any oral evidence at all. Counsel appearing for the Petitioner has submitted that in that event the Petitioner would reserve to itself a right to contend that in the absence of oral evidence, the compilation of documents upon which the First Respondent relies would not stand proved. It is not necessary for this Court to express any view one way or the other 5 on that aspect since these are the matters to be decided by the Estate Officer in the event that the First Respondent decides that it is not leading any oral evidence. The Petition is accordingly disposed of by setting aside the direction issued by the Estate Officer directing the Petitioner to lead evidence in the claim for damages under Section 7 of the Act. In the first instance, in view of the judgment of the Supreme Court in New India Assurance Co. Ltd. (supra), it would be for the First Respondent to substantiate the claim for damages by leading evidence. 4. The application for impleadment of third parties was correctly rejected by the Estate Officer and no interference has been made in respect of that part of the order. The Petition shall accordingly stand disposed of. There shall be no order as to costs. *****