1 cra477 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.477 OF 2008 M/s.Beauty Dry Cleaners & Ors. ...Applicants vs. Mukesh Srinivas Agarwal & Anr. ...Respondents Ms Manjiri Parasnis for the applicants Mr.Sanjay Kshirsagar for the respondents. CORAM : A.S.OKA,J. DATE : NOVEMBER 18, 2011 ORAL JUDGMENT: 1 Heard learned counsel for the applicants and the learned counsel for the respondents. On 22 nd July 2011, this Court passed an order that revision application shall be disposed of at the stage of admission. Accordingly, revision application is taken up for final disposal. 2 The revision applicants are the original defendants and the respondents are the original plaintiffs. The suit premises is a shop premises admeasuring 100 sq.ft situated on the ground floor of the property bearing CTS no.1511, Shivaji Nagar, Pune more particularly described in paragraph 1 of the plaint. The case made out in the plaint is that the first applicant is the tenant of the respondents in respect of the suit shop at the monthly rent of Rs.50/-. It is contended that the suit shop was let out only for the purpose of business of of Dry Cleaners. It is alleged that since couple of years 2 cra477 prior to filing of the suit, the first applicant was not using the suit shop for the purpose for which it was let out. It is alleged in the plaint that the first applicant has sublet the suit shop to the second applicant (M/s.Samrat Tours and Travels). By amending the plaint, it was alleged that the first applicant has sublet the suit shop to the third applicant and that the first applicant was illegally profiteering from the suit shop. 3 It was contended that the respondents purchased the larger property in which the suit shop is situated in the year 1991 for running the business of Lodging and Boarding. It was contended that Lodging business is run under the name and style of Park Lodging and Boarding and that the business of boarding is run in the name and style of Pragati Restaurant. It was alleged that the premises of Pragati Restaurant was adjacent to the suit shop and in the year 1995, the Pune Municipal Corporation demolished the said premises. It is contended that the respondents have no place to run the restaurant and therefore, the business of lodging is adversely affected as the customers occupying the rooms cannot be provided with food and snacks. Therefore, apart from the ground of illegal sub letting, the possession was sought on the ground of bona-fide and reasonable need to start a restaurant. 4 Written statement was filed by the first and second applicants denying various averments in the plaint. It was denied that the first applicant has unauthorizedly sublet the suit shop to the 3 cra477 second applicant. It was denied that the second applicant was the sub-tenant of the first applicant. In the written statement, it was contended that the proprietor of the first applicant was Mr.Raman Govindsingh Choudhary and his elder brother was the third applicant Dagdusingh Govindsingh Choudhary. It was contended that the said two brothers were the only earning members of the family of 22 members. In paragraph 19 of the written statement, it was contended that for meeting the financial needs of growing family and to enable the educated unemployed nephews to earn livelihood, business in the name and style of the second applicant was started by the joint family in the suit shop and no outsider was involved in the said business. It is contended that the business of dyers and dry cleaners was continued in the suit shop. After amendment of the plaint, there was an additional written statement filed by first to third applicants in which it was contended that the third applicant has been looking after the business of laundry in the suit shop since 1973. In the original written statement it was admitted that it was the first applicant who was the tenant. In the additional written statement, allegation of the sub-tenancy by the first applicant in favour of the third applicant was denied. 5 After the parties adduced evidence, the Trial Court dismissed the suit. A Decree for possession has been passed by the Appellate Court on the ground of bona fide requirement and illegal subletting. 4 cra477 6 Before adverting to the submissions made by the learned counsel for the applicants, it will be necessary to make a reference to the order dated 17 th April 2010 passed by this Court. Considering that there was some controversy about the extent of area in possession of the respondents on the ground floor of the property, this Court appointed a Court Commissioner under Rule 9 of Order XXVI of the Code of Civil Procedure,1908. Accordingly, the Court Commissioner submitted a report. A prayer was made by the applicants before this Court seeking permission to cross examine the Court Commissioner on the ground that the applicants have objected to the report of the Court Commissioner. By order dated 22 nd July 2010, the permission to cross examine was denied. However, the applicants were permitted to file an affidavit. By order dated 29 th March 2011 passed in civil application no.317 of 2010, this Court recorded the statement of the respondents in the affidavit to the effect that the Commissioner s report will not be relied upon at the time of hearing of the revision application. Accordingly, the applicants did not press for their prayer for cross examination of the Court Commissioner. 7 Civil application no.400 of 2010 has been now filed by the applicants praying for appointment of another Court Commissioner. 8 The learned counsel for the applicants argued in support of the civil application by contending that without their being any application, this Court found that the appointment of the Court Commissioner 5 cra477 for local investigation was necessary in as much as it was necessary to make enquiry as regards the availability of the premises on the ground floor. She submitted that in view of the statement made by the respondents which is pointed out above, and in view of the denial of permission to cross examine the Court Commissioner, it is necessary to appoint a fit and proper person as the Court Commissioner so that full effect can be given to the order passed by this Court dated 7 th April 2010 which records the necessity of the appointment of the Court Commissioner for local investigation. She submitted that the hearing of the revision application be deferred till the Court Commissioner submits the report. 9 On merits, the learned counsel for the applicants submitted that large premises are in possession of the applicants. She pointed out that there is a categorical admission that except for four shops including the suit premises, rest of the ground floor is in possession of the respondents. She pointed out that in the cross examination of the third applicant, a suggestion was given by the Advocate for the respondents that there were six rooms on the ground floor which were being used for business of lodging. She pointed out that the correctness of the said suggestion was denied by the third applicant. She submitted that apart from the admission in the cross examination of the first respondent, the respondents themselves brought on record that there are six rooms available on the ground floor and thus, the case of non-availability 6 cra477 of the premises on the ground floor is completely falsified. The learned counsel therefore, submitted on their own showing, the respondents have got adequate premises on the ground floor. In any case, this material aspect has not been disclosed by the respondents in the plaint and in evidence. 10 As far as the ground of subletting is concerned, she relied upon the decision of this Court in case of C.C.YI (Dr.)Medical Practitioner,Bhiwandi vs. Janakidevi Anantlal Gupta [2001 (4) Mh.L.J. 114]. She submitted that mere occupation is not sufficient to infer either sub-tenancy or parting with possession. She pointed out that evidence on record shows that the second applicant is nothing but a family business of the first applicant. He pointed out that the agency has been taken by the third applicant in the name of the proprietor of the first Applicant of Samrat Tours and Travels conducted by one Irphanbhai and the possession has not been parted with in favour of any stranger. She submitted that the case of the first applicant is that the members of the joint family of the proprietor of the first applicant including the third applicant who is the brother of the proprietor of the first applicant has been carrying on the business in the suit shop and by no stretch of imagination, the action of the applicants will amount to creation of sub-tenancy as there is no transfer of interest. She submitted that there is no evidence adduced by the respondents to show that the first applicant is profiteering and earning income by parting with possession of the suit shop. She, 7 cra477 therefore, submitted that even assuming that the second applicant is in possession, that is no ground to come to the conclusion regarding creation of sub tenancy. 11 The learned counsel for the respondents supported the impugned Judgment and decree. He submitted that there is no adverse admission given by the first respondent and in fact his statement in the evidence is that apart from the suit shop there is no other constructed premises available on the ground floor and rest of the property consists of open space. He submitted that the restaurant premises on the ground floor has been proved to be demolished and there is no premises available on the ground floor for running the restaurant. He submitted that availability of premises on the ground floor for running restaurant is a matter of necessity for the lodging business which is being run on the upper floor. He submitted that no interference can be made with the impugned Judgment and decree. 12 I have carefully considered the submissions. The first point will be of the plea of illegal subletting. In paragraph 5 of the plaint, it is stated thus : 5 The defendant no.1 unauthorizedly sublet a portion of the suit premises to Defendant no.2 without the authority and permission of the plaintiffs. The defendant no.2 is occupying the portion of the suit premises since 1995 and is transacting the business of Tours and Travels in 8 cra477 the said suit premises. Hence, the plaintiffs are entitled for possession of the suit premises from the defendants. It is seen from the pleading and deposition of the Defendants that defendant no.1 has sublet the suit shop to defendant no.3 and defendant no.1 is illegally profiteering thereby. This subletting is unlawful being without permission of the plaintiff. In paragraph 9, it is stated thus : 9) The cause of action for the suit arose when the Defendant no.1 sub let the portion of the suit premises to Defendant no.2 and changed user of the premises The cause of action also arose when the portion of the Pragati Restaurant of the plaintiff was demolished by PMC. The cause of action continues to arise there after from time to time. . The cause of action against defendant no.3 arose for the first time when Defendant no.3 deposed as witness of Defendants on 25/1/2000 claiming to be in exclusive possession of the suit premises 13 As pointed out earlier, the second applicant is M/s.Samdrat Tours and Travels. It is specifically pleaded in the plaint that the first applicant which is a proprietory concern is the tenant in respect of the suit shop. 9 cra477 14 In the written statement of the first and second applicants, in paragraph 5, it is admitted that it was the first applicant who was the tenant in respect of the suit shop. There is denial of allegation of sub tenancy. In the further part of the written statement, there is some explanation for the business of the second applicant being carried on in the suit shop. The relevant portion of paragraph 19 reads thus : 19 That the defendants say and submit Defendant nod.1 has not unauthorizedly sublet a portion of the suit premises to meet the financial ends of a growing family and to enable the educated unemployed nephews to earn and support their families started the business in the name and style of defendant no.2 defendants says and submits that like any business, business under the name any style of defendant no.2 has also been started by the joint family and there is no outsider involved in it and there is no question of any rent between the defendants interse and the entire possession is with defendant no.1 and its family members... (underline added) 15 Thus, it is contended that the proprietor first applicant started the business of second applicant for the benefit of his nephews. The fact that the business of the second applicant is carried on in the suit shop has been admitted. There is an additional written statement filed by the first to 10 cra477 third applicants in which while dealing with the allegations regarding sub tenancy, it was contended that the third applicant was looking after the laundry business in the suit shop from 1973. 16 The proprietor first applicant did not step into witness box. The third applicant stepped into witness box. He stated that the business of laundry was a joint family business of he himself, his brother, (the proprietor of applicant no.1) and four sons. In paragraph 7 of the cross examination he admitted that his brother Raman (Proprietor of the applicant no.1) was the tenant in respect of the suit shop. In further cross examination, he stated that being the member of the family, he was carrying on the business in the suit shop. It will be necessary to note what was stated in paragraph 13 of his cross examination : 13)I started traveling business in the year 1996 in the name Pardeshi Tours and Travels prior to 1996, had no other business than Landry. Samrat Tours and Travels at Aurangabad belongs to Irfanbhai. His agencies at different places. I have no business in the name of Samrat travels. I am agent at Pune in the name of Raman personally is not doing the business of There is no written agreement of agency. I had instructed my advocate about agency of my business. I cannot a any reason why it is not in the W.S. It is correct that the contents in para 9 in W.S to the effect that business in the name of defendant no.2 is done by joint family is 11 cra477 incorrect. There is a board of Samrat Tours Travels. (Underlines added) He stated that in the year 1996, he started business of Pardeshi Tours and Travels. Prior to 1996, he had no other business except the laundry business. He stated that the business of Samrat Tours and Travels at Aurangabad belongs to Irphanbhai and his agents are at different places. He stated that he has no business in the name of Samrat Tours and Travels but he was the agent at Pune of the said Irphanbhai. 17 Most importantly, he stated that it was correct to say that the contents of paragraph 9 of the written statement to the effect that the business in the name of the second applicant is done by the joint family is incorrect. He admitted that there is board of Samrat Tours and Travels on the suit shop. In the cross examination he stated that the suit shop consists of open space admeasuring 100 sq. ft and business of Samrat Tours and Travels is done in the open space. 18 All these aspects which have come on record in the evidence have been considered in detail by the Appellate Court. The fact that Raman, the Proprietor of the first applicant is the tenant is an admitted position. In the written statement, the case made out by the applicants was that the business of the second applicant was started by the said Raman to ensure that his nephews earn livelihood. In the written statement it was 12 cra477 contended that the joint family started business in the name and style of the second applicant. It is reiterated in paragraph 19 of the written statement that the business of the second applicant has been started by the joint family and there was no outsider involved. To support this contention, the said Raman, the proprietor of the first applicant chosen not to enter the witness box. The third applicant who stopped into witness box, while admitting that Raman was the tenant stated that he was also looking after the business in the suit shop. He took a totally inconsistent stand in evidence by denying that the business of the second applicant was run by the joint family. He claimed that the business of the second applicant belongs to Irphanbhai and he has appointed agents at different places. He claimed to be an agent of the said Irphanbhai at Pune. He stated that there is no written agency agreement. He admitted that all these aspects were not mentioned in the written statement. Thus, by the only witness examined by the applicants, it is brought on record that the business of the second applicant is owned by a stranger by the name Irphanbhai. The witness gave up the case that the business was of joint family and came out with a new case that he was the agent appointed by Irphanbhai. Thus, what is brought on record is that the business owned by Irphanbhai who is the stranger to the family is being conducted in the suit shop. No evidence was adduced to prove alleged agency. It pertinent to note that though the third applicant stated that he along with the first applicant was paying income tax jointly, 13 cra477 income tax returns were not produced on record which could have indicated that the business of the second applicant was carried out only as an agent of Irphanbhai. 19 Thus, as stated earlier, what is brought on record is that the business owned by Irphanbhai is being carried out in the suit shop. Though it was contended that the third applicant was carrying on the business as the agent of Irphanbhai, the fact that there was such agency has not been proved either by producing the documentary evidence or by examining the said Irphanbhai. It is admitted that the business of M/s.Samrat Tours and Travels which is admittedly of Irphanbhai is being carried on in the suit shop and it is not established that the third applicant is his agent. Hence, it is established that a business of a stranger is being carried on. The applicants could not adduce convincing evidence that agency was taken by the third applicant. The Appellate Court has rightly drawn adverse inference for not examining the first applicant as a witness. That is how, the only possible inference of subletting was drawn by the Appellate Court. The argument that no profiteering is established cannot be accepted as the applicants have withheld important evidence. The first applicant did not step into witness box and alleged income tax returns jointly filed by the first and second applicants are not produced. Therefore, it is not possible to disturb the finding of fact recorded by the Appellate Court on the issue of illegal sub tenancy. 14 cra477 20 Now coming to the point regarding bona fide need, the need pleaded was that no other premises was available to the respondents on the ground floor to start restaurant as the old restaurant premises was demolished by the Municipal Corporation. It will be necessary to make a reference to the cross examination of the first respondent and in particular paragraph 5 thereof. Relevant part of the paragraph reads thus : 5....The construction of this building is made about 25 years back or so. I cannot say if 2.5 FSI is consumed. This plot is 100 East-West and near about 100 South-North. The set back from the road side is about 10 . The building structure is approximately 75 50 . It is ground plus two floors structure. The 34 rooms are constructed on the 1 st and 2 nd floor. There is only one tenant on the ground floor who is the defendant and the other three shops are sold out on ownership by the previous owner. The remaining area of the ground floor is in our possession excluding the three shops and suit premises. (underline supplied) Thus, the statements in the cross examination do suggest that apart from three shops and the suit shop, there is other area on the ground floor in possession of the respondents. If the remaining area except the four shops was open to sky, the first respondent would not have stated that the remaining area of the ground floor was in their 15 cra477 possession excluding the suit shop and three shop premises. He would have clearly stated that except the four shops, there was no constructed area on the ground floor in his possession. This indicates that apart from the suit premises, there were other premises on the ground floor in possession of the respondents. In the cross examination of the third applicant, the following suggestion was given : 16)...On first and second floor, it is Park Lodge. It is correct that in the Eastern Northern corner on the ground floor there are six rooms. I don t whether these are used for Park Lodge. It is correct that those rooms are at rear side. The frontage of suit property is on western and Norther side. My shop is at Western side. It is not correct that plaintiff had no premises for hotel business... (Underline supplied) Going by the said suggestion given by the advocate for the respondents, the respondents admitted that there were six rooms in their possession on the ground floor. No evidence was adduced by the respondents to show that the said six rooms were used for lodging business. Therefore, the Appellate Court could not have accepted the case made out by the respondents that no constructed premises on the ground floor were in possession of the respondents. The respondents themselves brought on record that there were other premises in their possession in the form of six rooms which were allegedly used for lodging business. Therefore, the plea of bona-fide 16 cra477 requirement which proceeds on the assumption that no constructed premises on the ground floor are available to start a restaurant will have to be rejected. Therefore, interference is required to be made in the finding recorded on the issue of bona fide requirement. 21 As far as civil application no.400 of 2011 is concerned, the only object of filing the same was to bring on record a report of new Court Commissioner, as regards the extent of premises on the ground floor. As the finding on the issue of bona fide need is required to be set aside, it is not necessary to consider the same on merits. 22 Hence, I pass the following order : i) Impugned Judgment and Decree of eviction is confirmed on the ground of unauthorized subletting. However, the finding on the issue of bona fide need of the respondents is quashed and set aside. ii)Civil application no.400 of 2011 stands dismissed. iii)Ad-interim relief granted by this Court on 22 nd August 2008 will continue to operate for a period of three months from today subject to condition that the applicants shall not create any third party rights and shall not part with possession of the suit shop. JUDGE