1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.833 OF 2007 IN SUIT NO. 590 OF 2007 Suresh K. Chhabria ....Plaintiff V/s. Avinash S. Rohira & Anr. ....Defendants Mr.J.G. Shukla i/b M/s.G.H. Shukla & Co. for the Plaintiff. Mr.Pankaj Sawant i/b Mr.M.B. Shirsat for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 13TH AUGUST, 2009. P.C. :- 1. The Plaintiff has filed the suit for possession of a commercial shop premises admeasuring 200 sq.ft. According to the Plaintiff, the Defendants were permitted to use the premises only on caretaker basis for the purpose of running the textile business. The Plaintiff himself and his father earlier had a licence for carrying on the said business. It is not possible therefore to reject the Plaintiff’s case that the premises were given out only on a caretaker basis. 2. Nor is it possible to reject at this stage the Defendants’ case that Defendant No.1 is the tenant of the said premises. According to the Defendants, it was agreed between the parties that a rent of Rs.2500/- per month was payable with an increase of Rs.500/- every three years. 2 3. There is no written agreement between the parties on the basis whereof the rival contentions can be tested. It is necessary, therefore in the present case to proceed on the basis of the last undisputed position. 4. There is no dispute that the Defendants are in possession. The Plaintiff’s only case is that the Defendants are not in exclusive possession. According to the Plaintiff, he has carried on business from the said premises as an estate agent. 5. Prima-facie, it is difficult to accept this case of joint possession at this stage. The Defendants have produced evidence establishing their possession of the premises. Indeed, their possession is not disputed. What is important to note however is that the electricity connection and the bills and the telephone connection and the bills stand in the name of the Defendants. The board outside the shop indicates the name of the Defendants’ business. On the other hand, there is no physical evidence whatsoever of the Plaintiff’s possession of the suit premises. There is not even a visiting card indicating the said premises as the place from which the Plaintiff carried on or carries on business as an estate agent. In the circumstances, on the balance of probability at the prima-facie stage, it must be held that the Defendants have been in exclusive possession of the premises. 6. Mr.Sawant has reiterated the undertaking given at the ad- interim stage in the proceedings before the Small Causes Court, Bombay that the Defendants will not dispose off, encumber, part with possession of or create any third party right, title and/or interest in, to, upon or in respect of the suit premises. He further states that the nature of the business also 3 will not be changed. The undertaking is accepted. 7. In these circumstances, it was not necessary for me to consider the preliminary objection as to the jurisdiction. It is however, made clear that in the event of the Plaintiff filing any proceedings in the Small Causes Court and taking out any application for interim reliefs therein, the same would be decided on its own merits. The only finding regarding the Defendants being in exclusive possession shall operate that too at the interim stage. Mr.Sawant states that arrears as per the Defendants’ calculation will be deposited in the Small Causes Court within eight weeks from today and that further payments also shall be deposited in the Small Causes Court. It is made clear that the same will be without prejudice to the rights and conditions of the Plaintiff and the Defendants. This order will not preclude the Court in such proceedings, if adopted, from passing orders regarding the Defendants depositing any further amounts as a condition of their continuing in possession or otherwise. 8. The Notice of Motion is accordingly disposed of. However, if such amounts are deposited, the Plaintiff shall be entitled to withdraw the same also without prejudice to the Plaintiff’s rights and contentions in this suit, in the Defendants’ suit in the Small Causes Court and in any other proceedings that may be adopted by any of the parties in respect of the said premises.