-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.369/2009 Shri Babi @ Tulshidas Sitaram Kanekar, Aged about 81 years, married, R/o. H. No. 180-7-1, Near Ponda Municipality, Ponda Goa. …...... Petitioner. Versus 1 Shri Moreshwar Nagendra P. Navelkar, R/o. Syne Court Bldg., Opp. Annapurna Apts, 2nd Floor, Near Gomantak Bhavan, St. Inez, Panaji Goa. 2 Shri Pandurang Sitaram Kanekar, R/o. Kanekar Building, Shantinagar, Ponda Goa. …...... Respondents. Mr. N. N. Sardessai, Advocate with Mr. Deep Shirodkar, Advocate for the petitioner. Mr. U. R. Tamba, Advocate for respondent no.1. Mr. A. Kakodkar, Advocate for respondent no. 2 CORAM :- N. A. BRITTO. DATE :21st June, 2010. -2- ORDER The petitioner herein is the elder brother of respondent no.2, tenant. In this Writ Petition, the petitioner has challenged the Order dated 19.1.2009 of the learned Administrative Tribunal, Panaji, refusing leave to him to file an appeal against the order of eviction passed against his brother, the said tenant dated 27.2.2006. 2. Some of the undisputed facts may be stated to dispose of this writ petition. 3. The respondent no.1/landlord had a lease agreement with respondent no.2/tenant dated 30.4.1969. Respondent no.1/landlord filed eviction proceedings under Goa Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 against respondent no. 2, tenant, on the ground of personal requirement. Both the parties namely the landlord and the tenant remained present before the Rent Controller on 29.8.2005 and the tenant sought time to file his reply and the case was adjourned, first from 28.9.2005 to 28.10.2005 and thereafter proceeding proceeded ex-parte, and as a result of which, -3- after recording the evidence of landlord and his witnesses, the learned Rent Controller proceeded to pass the order of eviction against the tenant directing him to hand over possession of the premises within a period of 30 days. 4. The landlord then filed an application for execution and by Order dated 11.11.2008 the Rent Controller interms of section 50 of the said Act read with Rule 13 of the Rules framed thereunder directed the Mamlatdar to evict the respondent no.2, tenant, from the suit premises and hand over vacant possession to respondent no.1, landlord. 5. The proceedings against the respondent no.2, tenant have proceeded ex-parte not only before Rent Controller but also before the Administrative Tribunal as well as before this Court, and although before this Court appearance was put on his behalf, the learned counsel appearing on his behalf has chosen to remain absent and it has been submitted at the Bar, the proceedings are only being watched by the tenant. -4- 6. Be that as it may, the petitioner claiming to be tenant and stating that on 4.12.2008 his said brother had handed over to him a notice dated 1.12.2008 issued by the Mamlatdar, filed an appeal before the learned Administrative Tribunal and as the petitioner was not a party before the Rent Controller, filed an application seeking leave to file the appeal which came to be dismissed by the order, impugned herein. 7. It appears that the petitioner before approaching the Tribunal, filed an application to the Mamlatdar on 4.12.2008 stating that he was residing in the suit premises as a tenant for about 40 years and sought stay of execution of the order of the Rent Controller. 8. After filing the present petition, the petitioner filed SCS no.16/2009/A with an application for temporary injunction which came to be dismissed by Order dated 24.6.2009 and that order has attained finality. The petitioner then claimed that he was the mundkar of the suit premises before the Mamlatdar, in proceedings filed under -5- Section 8-A of the Goa Daman and Diu Mundkars (Protection from Eviction) Act, 1975. The Mamlatdar was pleased to issue a notice to the landlord dated 8.9.2009, of the said application but as the learned Mamlatdar did not grant any stay of the proceedings before the Rent Controller, the petitioner preferred an appeal to the Deputy Collector and by Order dated 16.9.2009 the Deputy Collector has ordered to maintain status quo, and the Court is informed that the proceedings before the Deputy Collector stand at that stage. 9. The petitioner, it appears, filed several documents before the learned Administrative Tribunal at the time of seeking leave to file appeal, against the order of Rent Controller dated 27.2.2006. The learned Administrative Tribunal has rejected the application, interalia, observing that the petitioner has not produced any lease agreement executed between him and the landlord in his favour or any rent receipts issued in the name of the petitioner but on the contrary the landlord had produced the lease agreement dated 30.4.1969 executed between the said landlord(respondent no. 1 herein) and the tenant(respondent no. 2) which proves that it is respondent no. 2 who -6- was the tenant and was ordered to be evicted by the Rent Controller. The learned Tribunal also observed that the petitioner has not mentioned as to how he was inducted in the suit premises by the landlord in as much as there was no evidence whatsoever to indicate the existence of joint tenancy. The learned Tribunal observed that the petitioner was the brother of the original tenant, the respondent no. 2 herein, and was ordered to be evicted and that the application was filed to deprive the landlord of the fruits of the decree in collusion with his brother, the tenant who had no case to resist the decree or challenge the same. The learned Tribunal further observed that the bills and photo copies of documents produced by the petitioner were in the name of landlord and accepted the submission that the said documents proved the occupation of the suit premises by the petitioner but did not prove that there was tenancy in his favour and assuming the petitioner was in occupation of the said premises, his occupation was that of trespasser. Learned Administrative Tribunal further observed that petitioner had miserably failed to prove that he had right to tenancy to occupy the suit premises. The learned Tribunal noted that the petitioner did not claim that he was the member of the -7- family of the original tenant i.e respondent no. 2 who resided with him and thus failed to make out a case for granting leave to file an appeal and therefore proceeded to reject the application filed by the petitioner. 10. As submitted, and as can be seen the application filed to the Mamlatdar as well as to the learned Administrative Tribunal the case of the petitioner was that he was a tenant. Counsel on behalf of the petitioner has made it clear that the petitioner does not claim to be a sub-tenant nor claims a joint tenancy alongwith his brother, respondent no.2, who has been ordered to be evicted. It is also not the case of the petitioner that he was member of the family of the original tenant and it appears that the petitioner is elder to respondent no.2, the tenant. It can also be seen from the memo of appeal that at one stage the petitioner claimed that the suit house was allotted joint occupation of the petitioner and the respondent no. 2 but in the year 1975 the respondent no. 2 left the house forever and shifted to his own building at the address given in the cause title. Now it can be seen from the notice dated 8.9.2009 of the joint Mamlatdar that the -8- petitioner has claimed to be a mundkar. 11. Be that as it may, the learned Civil Judge, Senior Division in dismissing the application for temporary injunction filed by the petitioner observed that the petitioner/plaintiff cannot expect the defendant no.1/landlord to file eviction proceeding against him as there was no relationship or contract between the plaintiff and the landlord which gave right to the plaintiff to occupy the suit house and that order dated 27.2.2006 passed by the Rent Controller has attained finality. Learned Civil Judge, Senior Division, also observed that the petitioner/plaintiff has failed to show any documentary proof as a tenant in respect of suit house. Although plaintiff has produced electricity bills and water bills, defendant no.1/landlord specifically pleaded that he has electrified the suit house so also water connection was obtained by him to facilitate the use of suit house by the respondent no.2 who was tenant. The learned Civil Judge, Senior Division, further observed that plaintiff has not been able to show any rent receipts, tenancy agreement or any other claim between him and the respondent no.1/landlord in support of his alleged claim of -9- tenancy and since the plaintiff was not the party to the agreement of tenancy the question of filing eviction proceedings did not arise. The learned Civil Judge, Senior Division, also observed that in case cause of action for the petitioner/plaintiff had arisen for the first time on 4.12.2008, the suit came to be filed only on 9.3.2009 and this was a serious lapse, omission and lethargy which spoke volumes about the weakness of the case of the plaintiff and consequently of the application for temporary injunction, and, therefore proceeded to dismissed the same. Learned C. J. S. D., also refer to the case of M/s U. K. Printers and Stationers v/s Yeshwant Laad, ( 1999(2) Goa L. T. 1) wherein this Court has observed that in a suit by landlord against a lessee for ejectment, without joining sub-lessee as a party and obtaining a decree does not amount to collusive decree or fraud on the Court. In the absence of written consent by landlord, there is no right for sub-tenant to remain in possession. No semblance of right to occupation was shown and therefore, the injunction was refused. 12. Shri Sardessai, learned counsel appearing on behalf of the petitioner would submit that the petitioner had produced documents in -10- the form of election card for the year 2003, ration card of the year 2006, electricity bills of the year 1993, water bills and a payment of Rs. 2200/- to the landlord( at page 45 of the paper book) which according to the learned counsel proves that the case of tenancy claimed by the petitioner. The learned Counsel submits that incase the petitioner was a trespasser, as held by the learned Tribunal then the petitioner's eviction could not have been ordered by the Tribunal and in that regard. Shri Sardessai has placed reliance on Hiralal Vallabhram versus Kasturbhai Lalbhai and others, (AIR 1967 Supreme Court 1853). Learned Counsel has submitted that landlord filed the proceedings for eviction in collusion with his brother, respondent no. 2, and although the premises were obtained on the ground of personal requirements the landlord did not execute the order of execution for almost 2 years. Learned counsel submits that the order of eviction affects the petitioner and some authority had to decide the claim made by the petitioner on merits. Learned counsel submits that since the petitioner was likely to be affected by execution of order of Rent Controller, the learned Tribunal ought to have granted leave and allowed the petitioner to file appeal to be disposed off on -11- merits. 13. As already stated respondent no. 2, petitioner's brother/tenant has chosen to remain absent. 14. On the other hand, learned Advocate Mr. Tamba appearing on behalf of respondent no.1/landlord would submit that this Writ petition has been filed by the petitioner by suppressing facts. Learned counsel submits that the order dated 24.6.2009 of the learned Civil Judge, Senior Division, Ponda, has been suppressed by the petitioner and though it was brought to the noticed of the Court, the petitioner has chosen not even to amend the Writ petition. Learned counsel submits that the order dated 8.9.2009 of the Mamlatdar and that of Deputy Collector dated 16.9.2009 have also been suppressed. Learned counsel Mr. Tamba also points out that the petitioner in his application to the Mamlatdar dated 4.12.2008 suppressed the facts that he came to know of the Order of execution through his brother. Learned Counsel submits that the petitioner has disclosed in para 19 of the appeal that it is his brother, respondent no. 2 who had handed -12- over the notice dated 1.12.2008 issued by the Mamlatdar. Learned Counsel submits that this averment of para 19 makes it clear that both the brothers have colluded to deprive the landlord the fruits of the order of execution and that is the conclusion which learned Tribunal has arrived at. Learned counsel has placed reliance on Rupchand Gupta versus Raghuvanshi(Private) Ltd and another, (AIR 1964 SC 1889) to say that there could not be collusion even incase the landlord had filed eviction proceeding knowing that the petitioner was residing in the suit premises. Learned Counsel has also placed reliance on S. R. Radhakrishnan and others versus Neelamegam, [(2003) 10 Supreme Court Cases 705] and has submitted that it is settled law that one does not become a tenant by mere payment of rent and that in the absence of a rent receipt regarding payment of rent in his favour the plea of tenancy could not be said to have been established. Reliance is also placed on Bhairab Chandra Nandan versus Ranadhir Chandra Dutta ( 1988(1) All India Rent Control Journal page 143), contending that the said case is very close to the facts of the case at hand wherein one brother had sub let the premises to his other brother, without the consent of the landlord and therefore the Court -13- had held that there was no question of respondent's brother being only a licencee and not a sub-tenant. 15. The Apex Court in Rupchand Gupta(supra) has observed that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it was not suggested by the sub-lessee that the lessor had even a plausible defence to the claim for ejectement. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. Where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub- lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this -14- and so the omission cannot be said to be an improper act. The mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded. 16. In my opinion the findings of the learned Tribunal that the petitioner has miserably failed to prove that he has a right of tenancy to occupy the premises cannot be faulted at all. This is a case where the boot of collusion appears to be on the other foot. The landlord was not required in law to join the petitioner in eviction proceedings as held by the Apex Court. On the contrary the averments of para 19 of the memo of appeal clearly show that there is collusion between the petitioner and his brother, respondent no.2. The landlord might have had his own reasons not to execute the eviction order immediately. The petitioner cannot derive any advantages of that. There are now two findings given, one by the learned Tribunal and the other by the learned Civil Judge, Senior Division, that the petitioner -15- prima facie has failed to prove that he is the tenant of the premises. The findings have to to be restricted to that only. That the petitioner prima facie is not a tenant, has now been determined by the Civil Court, the right forum, and that decisions has become final. Although the learned Tribunal has termed the petitioner a trespasser, his status appears to be of a sub tenant in the light of what the Apex Court has held in Bhaira C. Nandan(supra)if not a licencee of the subtenant and in a suit for eviction, the sub tenant alognwith his licencee are bound to be evicted in the process of execution of a decree of eviction. The documents produced at the most prove his occupation of the premises. Most of the documents produced are in the name of the landlord. A solitary payment without date cannot be taken as proof of payment of rent. Is that a payment of rent for 22 months as against 40 years of occupation? The conclusion arrived at by the learned Tribunal is based on the material produced by the petitioner and therefore cannot be interfered with in Writ jurisdiction and, in fact no other view is possible. The learned Tribunal has not ordered eviction of the petitioner by the impugned Order and as such the observation of the Apex Court in Hiralal ( supra) would be of no assistance to the case of -16- the petitioner. All that the learned Tribunal was required to examine before granting leave to appeal was to find out whether the petitioner had proved prime facie that he was a tenant of suit premises and since the petitioner had failed to prove even a semblance of right of tenancy, the learned Tribunal proceeded to dismiss his application and that order cannot be faulted. 17. There was no lease agreement between the petitioner and the landlord; on the contrary the agreement was between the landlord and the defendant no. 2, the tenant. No rent receipts issued by the landlord have been produced. It is quite possible that petitioner was residing alongwith his brother, respondent no. 2, who is tenant and later independently of him and for that reason the petitioner had with him the said documents on which reliance has been placed by the petitioner and which have already been referred to herein above, but the said documents/or payment made do not at all prima facie prove the claim of tenancy put forth by the petitioner. As already stated when a tenant is ordered to be evicted, the sub tenant or the licencee of the tenant has to go alongwith him and that is the law laid down by -17- the Apex Court in the case of Rupchand Gupta(supra) as well as Hiralal Vallabhram(Supra's). The application before Tribunal and now this writ petition is nothing but an attempt on the part of the petitioner to deprive the respondent no.1 landlord the fruits of the order of eviction obtained by him. The petition has also been filed by suppressing various orders referred to herein above and therefore on that count also deserves to be dismissed with exemplary costs. Different pleas taken by him before different fora prove the dishonesty and falsity of his case. The petitioner has deprived the landlord the possession of the suit premises for over one and half year. On facts the petitioner has invited dismissal of the petition with exemplary costs. As a result, the Writ petition is hereby dismissed. Petitioner to pay costs of Rs. 15,000/- to the respondent no. 1. Costs to be deposited within a period of 15 days. Rent Controller/ Mamlatdar to expedite the execution proceedings. N. A. BRITTO, J. vn*