1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3072 OF 2009 Narendra N. Vaishya. ..Petitioner. V/s. Smt.Induben R. Parekh & Anr. ..Respondents. Mr.A.V.Anturkar i/b. Mr.A.C.Shah for petitioner. Mr.Mukesh Chheda for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 25, 2009. DATE : MARCH 25, 2009. DATE : MARCH 25, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Only three points have been pressed before this Court to assail the correctness of the view taken by the two Courts below. 3. The first point is that the Appellate Court has not dealt with the issues raised by the Petitioner in the cross-objection on its own merit. The argument of the Petitioner clearly overlooks that the Appellate Court has examined the pleadings and evidence on record to conclude that the Plaintiff has established the case that the Defendant was a gratuitous licensee. Having said so, it necessarily 2 follows that there is no question of dilating any further on the claim of the defendant that he was a lawful subtenant in the suit premises. The Trial Court as well as the Appellate Court’s Judgment if read, it would appear that the Courts below have recorded as of fact that the Defendant has failed to produce any tangible evidence to show that he was a lawful subtenant. In the circumstances, there is no merit in this submission. 4. It is next contended that the specific case made out by the Plaintiff in paragraph-15 of the plaint is that the premises were let out to the Defendant No.1 for consideration- of Defendant No.1 carrying out stitching work of the customers of the Plaintiff as well as their predecessor. Relying on this averment in paragraph-15 of the plaint, it was argued that the Plaintiff has conceded the fact that the Defendant No.1 was inducted in the suit premises for consideration. If so, it necessarily follows that the Petitioner/defendant was not a gratuitous licencee as such. This argument will have to be stated to be rejected. It is based on distorted reading of averments in paragraph-15. The expression "consideration" used in para-15 of the plaint, which has been pressed into service, is obviously a product 3 of loose drafting of the draftsman of the plaint. What it means is that in lieu of or guarantee to render services of stitching clothes of the customers of the Plaintiffs and their predecessor, the Defendant No.1 was allowed to use portion in the suit premises to conduct his tailoring shop. Such service rendered by Defendant No.1 does not take the colour of payment of licence fee or charge for the usage of the suit premises for his tailoring shop. It is not the case of the Petitioner that the Petitioner was not allowed to charge his fees or charges from the customers of the Plaintiffs directed to him for stitching their clothes. If that case was to be pleaded and proved it would have been possible to contend that the Petitioner was running his tailoring shop without accepting any charges from the customers of the Plaintiffs-which service was rendered in lieu of licence fee or charges payable for the usage of premises to conduct his tailoring shop. And, therefore, was not a gratuitous licensee. However, that is not the case on hand. In the circumstances, there is no substance even in this submission. 5. That takes me to the third and the last submission made across the bar. Reliance is placed on the averments in paragraph-9 and paragraph-16 of 4 the plaint where the Plaintiffs have asserted that on account of old age first Defendant was helped by the second defendant in the business of tailoring and that the first Defendant had later on stopped attending the business and the second defendant was looking after and carrying the business of tailoring. Relying on this averment, it is contended that in that case the Defendant No.2 was in exclusive control of the tailoring business conducted from the suit premises and if it is so, his status would be that of a person at best unlawfully inducted by the Defendant No.1. The argument once again will have to be stated to be rejected. It is not the case of the Defendant No.2 that for using the part of the premises he was paying any consideration either to the Defendant No.1 or for that matter to the Plaintiffs. On the other hand, the defendant No.2 was and always have been claiming through the Defendant No.1 being his son. In other words, the defendant No.2 was not claiming independent right on his own but only through the Defendant No.1 who has been held to be a gratuitous licensee. Thus understood, even this submission does not commend to me. Accordingly, the Petition should fail. The same is dismissed. 6. At this stage, Counsel for the Petitioner 5 submits that the Petitioners may consider of carrying the matter in appeal for which the decree of eviction passed in respect of the suit premises be kept in abeyance for some time. There is no difficulty in accepting this request. It is ordered that the decree passed by the Courts below shall remain in abeyance for a period of four weeks from today on condition that both the Defendants and all the heirs of the Defendant No.1 who were impleaded as legal heirs and representatives before the Appellate Court shall file undertaking within one week from today, failing which it will be open to the Plaintiff to proceed with the execution of the decree without further reference to the Court. 7. The Counsel for the Respondents invited my attention to the fact that the Petition as presented before this Court is only by Defendant No.2 and not at the instance of heirs of Defendant No.1. The Defendant No.1 had expired during the pendency of the appeal and his heirs and legal representatives were brought on record before the Appellate Court itself. However, they have not been made party to the present Writ Petition. In that case, the Petition will have to proceed as if presented only by Defendant No.2 and it will have to be assumed that the other heirs of 6 defendant No.1 have accepted the decree passed against the Defendant No.1 and have no intention to challenge the same. Needless to observe that Defendant No.2 is also one of the heir of Defendant No.1 but has not chosen to espouse the cause for himself and for and on behalf of other heirs to represent the estate of the Defendant No.1. There is no such statement in the Petition. In the circumstances, it was thought appropriate to direct that all the heirs and legal representative of the deceased defendant No.1 shall also file affidavit of undertaking so as to obviate any further complications at the time of execution; further, it would also establish the bonafide of Defendant No.2 and the other heirs and legal representatives of the Defendant No.1 in the wake of their request for time to go in appeal. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)