:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 18 OF 2009 CIVIL REVISION APPLICATION NO. 18 OF 2009 CIVIL REVISION APPLICATION NO. 18 OF 2009 Shokey Agarwal @ Payal Gupta ..Petitioner versus Satyarani Lakhpatrai Agarwal ..Respondent Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. Nikhil Sakhardande and Ms. Gauri Godse for Petitioner. Mr. N. Walavalkar, Sr. Advocate i/b. Mr. O. P. Pandya for Respondent. WITH WITH WITH ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 347 OF 2009 NOTICE OF MOTION NO. 347 OF 2009 NOTICE OF MOTION NO. 347 OF 2009 IN IN IN SUIT NO. 4386 OF 1998 SUIT NO. 4386 OF 1998 SUIT NO. 4386 OF 1998 Satyarani wd/o. Lakhpatrai Agarwal ..Plaintiff versus Payal Gupta @ Shokey d/o. Lakhpatrai Agarwal & Ors. ..Defendants Ms. Jyotsna V. Vyas i/b. Mr. O. P. Pandya for Plaintiff. Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. Nikhil Sakhardande i/b. M/s. Patil Gangarkar & Co. for Defendant No. 2. CORAM : DR. D. Y. CHANRACHUD, J. CORAM : DR. D. Y. CHANRACHUD, J. CORAM : DR. D. Y. CHANRACHUD, J. :2: DATE : 29TH APRIL, 2009 DATE : 29TH APRIL, 2009 DATE : 29TH APRIL, 2009 P.C. P.C. P.C. Civil Revision Application No. 18 of 2009 1. The Appellate Bench of the Small Causes Court allowed an Appeal preferred by the respondent and set aside a declaration issued by the learned Trial Judge. The petitioner, who is the original plaintiff, is the daughter of the respondent, who is about 80 years of age. The petitioner instituted a declaratory suit against her mother in the Small Causes Court seeking two reliefs, viz.:- "(a) that it may be declared that the Defendant is not entitled to dispossess the plaintiff from the suit property premises i.e. Flat Nos. 18 and 45 situate on the 9th floor of the building known as Vellard View, Vellard View Premises Co-operative Society Ltd., 14th Tardeo Road, Hajiali, Bombay 34, which suit property premises are adm. 1850 sq. ft. carpet area and bounded on the North by Tardeo Road, on the South by Atlamount Hill, on the East by Sahkar Nivas and on the West by Hira Panna Shopping Centre; (b) The Defendant, her servants and agents be permanently restrained by an Order and injunction of this Hon’ble Court from dispossessing the Plaintiff or interfering with the possession of the Plaintiff except with due process of law." :3: 2. The premises consist of a residential flat on the ninth floor of a building known as Vellard View at Haji Ali, Mumbai and admeasure 1,850 sq. ft. The petitioner is the daughter of Lakhpatrai Agarwal and the respondent. She was married on 29.4.1980 and came to reside in the flat, after matrimonial disputes had arisen between her and her spouse, together with her daughter. The petitioner obtained a divorce on 30.10.1991. The respondent is admittedly the owner of the flat. 3. The basis of the claim in the suit was an alleged Agreement of Tenancy said to have been executed by the respondent on 16.10.1997 and a receipt evidencing possession. The defence was that the Agreement was fabricated. The Trial Judge in the Small Causes Court decreed the suit. The respondent had relied upon the report of a handwriting expert, which was discarded by the learned Trial Judge. The Appellate Bench of the Small Causes Court held that save and except for the two documents, viz. the Agreement of Tenancy and the Receipt of Possession, there was no document on record to establish the claim of the tenancy. The respondent had in the course of her cross :4: examination admitted her signatures on the Agreement. The Appellate Bench of the Small Causes Court, on a review of the evidence, came to the conclusion that the Agreement of Tenancy had not been acted upon. 4. Now, admittedly clause 2 of the Agreement of Tenancy stipulates that the petitioner would pay the maintainance outgoings of the Co-operative Housing Society in respect of the premises, which the respondent as owner was to adjust towards the payment of the monthly rent. Admittedly, no rent receipt was produced on the record and as a matter of fact the petitioner during the course of her cross-examination admitted that there was no documentary evidence to show that she had paid the outgoings to the Co-operative Society. The Secretary of the Co-operative Society adduced evidence in support of the case of the respondent. The Appellate Bench of the Small Causes Court noted that the bye-laws of the society require the permission of the society before a tenancy is created by the owner in favour of any person. The Secretary stated that the petitioner had neither paid any charges of the society nor had she, as a matter of fact, obtained the permission of the :5: society. The absence of evidence to show the payment of rent and the absence of permission of the society are important circumstances to indicate that the alleged agreement of tenancy between mother and daughter was not acted upon. 5. Essentially, two submissions have been urged in support of the Civil Revision Application. Firstly, it has been submitted that an Agreement of Tenancy was entered into on 26.9.1987 and the respondent had during the course of cross-examination admitted her signature on the document. Secondly, the defence was based on a report of the handwriting expert and on a plea of forgery. The Trial Court rejected the report of the handwriting expert interalia on the ground that he had failed to compare the signatures with the originals and even the Appellate Court referred to the opinion of the handwriting expert as only tentative. In these circumstances, it was submitted that there was no evidence to displace the inference of tenancy that should arise from the Agreement dated 16.10.1997. 6. Both the submissions are not tenable. The findings which have been arrived at by the Appellate :6: Bench of the Small Causes Court are based on the evidence on the record. The question as to whether the agreement does or does not bear the signature of the respondent is not dispositive of the question as to whether the Agreement was acted upon. The evidence on record supports the inference of the Appellate Bench, as a first Appellate Court, that the agreement was never acted upon. There was at the highest an agreement between a mother and her daughter. The evidence demonstrates that the petitioner neither paid rent to the mother nor for that matter had she paid the outgoings of the Co-operative Society. 7. The learned counsel appearing on behalf of the petitioner sought to place reliance on the notes of evidence dated 20.6.2000, during the course of which the petitioner sought to produce the bill of the Co-operative Society of the year 1998. The petitioner failed to prove those documents and, on the contrary, her admission in the notes of evidence dated 30.7.2002 clearly shows that she had no documentary evidence of the payment of outgoings. This is also corroborated in the evidence of the Secretary of the Co-operative Society. This is coupled with the circumstance that the permission :7: which was required under the bye-laws of the society for creation of a tenancy was never taken. In these circumstances, this court is not inclined to interfere with a finding of fact arrived at by the Appellate Bench of the Small Causes Court in Appeal, particularly having regard to the settled parameters governing the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure, 1908. The Civil Revision Application shall accordingly stand dismissed. Notice of Motion No. 347 of 2009 8. The respondent to the Civil Revision Application has instituted a suit on the Original Side of this Court seeking a decree for possession. In the suit, a Notice of Motion has been taken out for appointment of a Receiver and for a direction appointing the plaintiff as agent of the Receiver without security and royalty. The Notice of Motion has been placed for hearing before this Court together with the Civil Revision Application. 9. While disposing off the Civil Revision Application, this Court has confirmed the finding of the Appellate Bench of the Small Causes Court, which :8: dismissed the declaratory suit filed by the 1st defendant (to the suit before this Court). In the declaratory suit before the Small Causes Court, an injunction was sought restraining the mother from dispossessing her daughter (the plaintiff before the Small Causes Court and the 1st defendant in the suit before this Court) without due process of law. Accordingly, a suit has been instituted for possession before this Court. 10. Prima facie, having regard to the findings which have been arrived at by the Appellate Bench of the Small Causes Court and which have been confirmed in the Civil Revision Application, it is apparent that the defendants have no valid right or interest in the suit premises to remain in occupation. In the circumstances, an appropriate case has been made out for appointment of a receiver. The Court Receiver shall stand appointed as Receiver of the residential flat in terms of prayer clause (a). The Court Receiver shall however in the first instance not dispossess the defendants but shall furnish them an opportunity of accepting the agency of the Receiver subject to usual terms and conditions in regard to the payment of royalty and security. In the event the defendants fail to accept the agency :9: of the Court Receiver, on the terms and conditions that may be fixed by the Receiver or in the event of a default, the Receiver shall thereupon appoint the plaintiff to the suit on the Original Side of this Court as the agent of the Receiver without any royalty or security. 11. The Notice of Motion is accordingly disposed of. 12. In order to enable the petitioner to the Civil Revision Application and defendants to the suit before this Court, to take recourse to their remedies in appeal, the Court Receiver is directed to defer action on the basis of the Order passed by this Court for a period of four weeks from today. (DR. D. Y. CHANDRACHUD, J.) (DR. D. Y. CHANDRACHUD, J.) (DR. D. Y. CHANDRACHUD, J.)