1 (WP4701.01) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4701 OF 2001 1. M/s National Non-Ferrous ) Industries, ) 234-C, Maulana Azad Road, ) Cross Lane, Bombay 400 008 ) ) 2A. Shri Bharat Shashikant Patel ) 142, Bowers Street, ) Jersey City, New Jersey 07307, USA ) ) 3A. Smt. Mona Hasit Patel ) 19, Kenton Park Road, Kenton Harrow, ) Middlesex HA38UB, U.K. ) ) 3B. Shri Bharat Shashikant Patel ) 142, Bowers Street, Jersey City, ) New Jersey, 07307, U.S.A. ) ) 3C. Smt. Parul Kanaiya Kansara ) 147, Bowers Street, Jersey City, ) New Jersey, 07307, U.S.A. ) ) 3D. Kum. Bhavna Shashikant Patel, ) 20, Jay Mahal, “A”, Road, ) Churchgate, Mumbai 400 020 ) ....Petitioners. V/s 1. M/s R.B. Patel & Co. ) a Partnership Fir, doing business ) at Industries 234-C, Maulana Azad ) Road, Cross Lane, Bombay 400 008. ) ) 2. Rajnikant Gordhandas Patel, ) 234-C, Maulana Azad Road, Cross Lane, ) Bombay 400 008. ) ....Respondents 2 (WP4701.01) Mr. C.M. Korde, Senior Counsel with Mr. Milind Jadhav & K.R. Daviervala i/b Mulla & Mulla and CBC for the Petitioners. Mr. Jayesh Bhatt for the Respondent. CORAM: V. M. KANADE, J. DATE : 12th August, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Petitioners and the learned Counsel appearing on behalf of the Respondent. 2. Petitioners are original Plaintiffs and Respondents are original Defendants. For the sake of convenience, parties shall be hereinafter referred to as “Plaintiffs” and “Defendants”. 3. Plaintiffs are a partnership firm. Defendants also are a partnership firm. Defendants i.e. the Petitioners herein are aggrieved by the judgment and decree passed by the Small Causes Court whereby the suit filed by Plaintiffs was decreed and order of eviction was passed against Defendants and 3 (WP4701.01) order was also passed for payment of mesne profits after holding inquiry under Order XX Rule 12. Against this order, Defendants preferred an appeal before the Appellate Bench of the Small Causes Court which appeal also was dismissed and against the said two orders passed by the lower Courts, Defendants have preferred this Writ Petition under Article 227 of the Constitution of India. 4. Brief facts which are relevant for the purpose of deciding this Writ Petition are as under:- 5. Plaintiffs and Defendants, initially, were partners in the Plaintiffs’ firm and apart from the Plaintiffs’ firm, there were three family firms and three branches were partners of the said three firms. Thereafter, there was separation between the three families and Plaintiffs took over the firm viz. M/s R.B. Patel & Co., whereas Defendants took over the firm viz National Non-Ferrous Industries (For short “NNFI”) At this stage, it is not relevant to refer to the other firms. M/s R.B. Patel & Co. were lessees in respect of plot of land which was taken from Hooseini Lakdabazar Ltd admeasuring 11000 4 (WP4701.01) sq.ft. Out of this total area, a structure was erected on 3000 sq.ft and 85% of the structure continued to be occupied by M/s R.B. Patel & Co. i.e. Plaintiffs and 15% of the structure i.e. 1700 sq.ft was with Defendants – NNFI. According to Plaintiffs, this area of 1700 sq.ft was given to Defendants by virtue of leave and license agreement dated 10/8/1972 and it was given on personal consideration and nominal charge of Rs 25/- per month was to be paid by Defendants. According to Plaintiffs, Defendants were causing obstruction to Plaintiffs for entering the premises and that they were also causing nuisance and, therefore, by advocate’s notice dated 19/7/1977, the said agreement was revoked and suit for possession and mesne profit was filed under section 41 of the Provincial Small Cause Courts Act, 1887. 6. Written Statement was filed by Defendants and several pleas were taken in the said Written Statement. It was contended that the suit was not maintainable under section 41 of the Provincial Small Cause Courts Act and that the Court had no jurisdiction to try and entertain the suit claim of Plaintiffs and that the suit ought to have been filed 5 (WP4701.01) under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short “Bombay Rent Act”). It was then contended that there was non-joinder of parties since other partners were not joined as Defendants and that Defendants were not the only partners of Defendant No.1 – Firm. Then prior history in respect of the old firm was given in para 7 of the Written Statement. It was then contended that pursuant to directions which were given by one Shri Hasmukh Gandhi, Advocate, High Court, Bombay, who was appointed as an Arbitrator for the purpose of dividing the three firms among three branches of the family, each branch would get one Wing of the business and also premises to enable them to carry on their business coming to their share independently. It was further contended that, accordingly, auction took place in the presence and guidance of the said Shri Hasmukh Gandhi, Advocate, High Court, Bombay and Defendants got the business of NNFI alongwith the premises for price of Rs 1,50,000/- and that rough sketch of the premises was prepared and signed by each of the partners and also by the said Shri Hasmukh Gandhi, Advocate. 6 (WP4701.01) It was then contended in the Written Statement that they were the owners of the said structure which came to their share in view of averments made in para 9 and that they were in exclusive use, occupation, possession, enjoyment of the same. It was then contended that it was agreed between the parties that Defendants would pay to Plaintiffs Rs 25/- per month in respect of the land underneath the suit premises, being proportion of the lease rent of the entire land, payable by Plaintiffs to lessors M/s Hooseini Lakdabazar Ltd and that in view of acquisition of the shares, on payment of Rs 1,50,000/-, they became absolute owners of Defendants’ firm and also the premises. It was then contended that Defendants are liable to pay to Plaintiffs a proportional rent of Rs 25/- in respect of the lease rent of the land in question. However, though this amount was offered and tendered, Plaintiffs did not accept the same. Then, it was further contended in the Written Statement that, though, for the aforesaid reasons, Plaintiffs got executed from Defendants an agreement dated 7 (WP4701.01) 30/8/1972 it was couched in the language of leave and license. However, according to Defendants, Plaintiffs had assured that the said agreement was not intended to be acted upon as the same was executed only with a view to over come technicalities or difficulties under the said lease. It was alternatively contended in the Written Statement that in view of the facts mentioned in the Written Statement in paras 9 and 10, they were tenants of the Plaintiffs in respect of the land underneath the suit premises and not the structure thereon. It was also contended that they were owners of the said structure and were protected under the provisions of the Bombay Rent Act. It was also contended that though the agreement was purported to be that of leave and license, this was only for the sake of convenience to overcome technical difficulties with regard to lease of the land and, lastly, it was contended without prejudice to other grounds and, alternatively, that they were deemed tenants of the Plaintiffs in respect of the land underneath the suit premises and or suit premises within the meaning of the Bombay Rent Act. The averements made in the Plaint, 8 (WP4701.01) however, were denied. 7. Trial Court framed issues. Plaintiffs examined Rajnikant Patel (P.W.1) who was cross-examined at length by Defendants and Defendants examined Shashikant Patel. However, after his examination in chief was partly recorded, he did not turn up and after number of adjournments were given, the evidence of Defendants was closed by the Trial Court. Trial Court, thereafter, decreed the suit and appeal against the said order was dismissed. 8. Mr. Korde, the learned Senior Counsel appearing on behalf of the Defendants i.e. Petitioners herein submitted that he wanted to urge only one point. He submitted that both the Courts below had clearly committed an error of law which was apparent on the face of record by not taking into consideration the defence of Defendants that they were protected tenants in view of section 15A of the Bombay Rent Act and, therefore, since the said agreement was executed on 10/8/1972 prior to amendment of 1973 which came into force on 1/2/1973, both the Courts below ought to have 9 (WP4701.01) dismissed the suit filed by Plaintiffs. He invited my attention to the notice given by the advocate dated 19/7/1972, leave and license agreement and the averments in the Plaint in support of his submissions. It was submitted that perusal of the notice clearly spelt out that the said agreement was a leave and license agreement. He submitted that in para 1 of the said notice, it was stated that Plaintiffs had permitted Defendants to use a portion of the premises on payment of nominal charge. Then, in para 3 of the said notice, it was mentioned that Defendants had not paid any compensation or license fee from September, 1972 till today. Much emphasis was placed on the word “compensation or license fee” and it was submitted that it was clearly understood that an amount Rs 25/- which was to be paid to Plaintiffs was a compensation or license fee. It was also pointed out that, as mentioned in para 3 of the said notice, Defendants were called upon to pay up all the arrears of license fee till 30/6/1977. The learned Senior Counsel also invited my attention to para 10 of the said notice in which it was stated that Plaintiffs had terminated/withdrawn, cancelled and revoked the license granted to Defendants. Then the 10 (WP4701.01) learned Senior Counsel invited my attention to the agreement dated 10/8/1972. It was submitted that In clause 1 of the said agreement, it was specifically stated that Defendants were entitled to exclusively use a portion of the said premises mentioned in blue colour in the plan annexed thereto and that Plaintiffs would be entitled to use exclusively a portion of the premises covered by red coloured line in the plan and that one portion which was shown in green colour was to be used in common by the parties thereto. Then, the learned Senior Counsel invited my attention to clause 6 of the said agreement which stated that Defendants would pay to Plaintiffs proportionate amount of the total rent of entire premises in consideration of the said arrangement. The learned Senior Counsel then invited my attention to the Plaint. He submitted that in para 5 of the plaint, there is specific averment that Plaintiffs were requested by Defendants to permit them to continue the business in the Plaintiffs’ premises on leave and license basis and that the Plaintiffs in consideration of the close family relations permitted Defendants to use portion of their premises. It was also submitted that it was specifically 11 (WP4701.01) mentioned that the terms of the license had been recorded in the formal writing dated August 1972. Similarly, it was submitted that, in para 6 of the plaint, there was a clear reference to the license which was granted to Defendants. Then, it was submitted that in para 8 of the plaint, it was stated that Defendants had not even paid nominal amount representing the compensation which they had agreed to pay under the agreement. Similarly, in para 9, it was contended that by advocate’s notice, license which was granted was terminated by Plaintiffs. The learned Senior Counsel then invited my attention to the prayer clause in the Plaint. It was submitted that the Plaintiffs had asked for a declaration that Defendants were licensees of Plaintiffs in the suit premises and that Defendants’ license being duly terminated they had no right to continue to be in occupation of the said premises. After having invited my attention to the aforesaid documents and averments in the Plaint, the learned Senior Counsel invited my attention to the definition of the word “licensee” as defined under section 5(4A) of the Bombay Rent Act. It was submitted that the person who was in occupation of the premises under a 12 (WP4701.01) subsisting agreement for licence given for a licence fee or charge, would fall within the definition of section 5(4A) as licensee. It was submitted that the word which was used in the said section was “occupation”. It was submitted that Defendants were not only in exclusive possession of part of the premises but the said premises was given under an agreement for licence and it was given for licence fee or charge. It was submitted that all the three ingredients were found in the notice which was given by Plaintiffs’ advocate, leave and licence agreement dated 10/8/1972 and averments made in the plaint and, therefore, they were deemed tenants in view of provisions of section 15A of the Bombay Rent Act. It was, therefore, contended that both the Courts below ought to have dismissed the suit filed by Plaintiffs and ought to have held that Defendants are deemed tenants. It was submitted that it was not necessary for Defendants to lead evidence since from the averments made in the plaint and the documents on which reliance was placed by Plaintiffs itself, this fact was established by Defendants and that a specific plea to that effect had been taken in the Written Statement. He invited my attention to 13 (WP4701.01) various paragraphs in the Written Statement wherein such a plea was taken by Plaintiffs. Reliance was placed on two judgments; one was the judgment of the learned Single Judge of this Court in Fill (Firose) B. Elavia and another vs. F.R. Engineer1 and the other was the judgment of the Supreme Court in Mani Nariman Daruwala vs. Phiroz Bhatena2. Reliance was also placed on the judgment of the Supreme Court in Deepak Agro Foods vs. State of Rajasthan and Others3 and more particularly on para 17 of the said judgment. It was, therefore, submitted that the decree was a total nullity since it was passed under section 41 of Provincial Small Cause Courts Act and the only remedy which was available to Plaintiffs was to file proceedings under the Bombay Rent Act. 9. Mr. Korde, the learned Senior Counsel appearing on behalf of Defendants/Petitioners also submitted that period of lease was linked with the lease which was executed by the erstwhile M/s R.B. Patel & Company with Hooseini Lakdabazar Ltd and that there was no definite period 1 1987(1) Bom.C.R.1 2 AIR 1991 SC 1494 3 (2008) 7 SCC 748 14 (WP4701.01) mentioned for the expiry of the said licence. It was contended that, therefore, that was one another incidence which clearly showed that it was a licence and the period of licence was linked with the lease period. 10. On the other hand, the learned Counsel appearing on behalf of Plaintiffs submitted that the submissions made by the learned Senior Counsel appearing on behalf of Defendants were misconceived. He submitted that concurrent finding of fact was recorded by both the Courts below wherein contention of Defendants that they were protected tenants was not accepted and that the cogent reasons were given for not accepting the said contention. It was submitted that while exercising jurisdiction under Article 227 of the Constitution of India, power of this Court to interfere with the concurrent finding of fact is very limited. Reliance was placed on several judgments of the Apex Court and this Court in support of the said submission. It was then submitted every available plea was taken by Defendants in their Written Statement and that some of the pleas were conflicting pleas and, therefore, it was submitted that on one 15 (WP4701.01) hand it was contended that Defendants were owners of the suit structure and that they had purchased the suit structure on payment of Rs 1,50,000/- and alternatively it was contended that they were protected tenants. It was submitted that no evidence was led by Defendants to prove/establish the case pleaded by them in the Written Statement. It was submitted that though several particulars were given, after the evidence of Defendants’ witness was partly recorded, the said witness thereafter did not turn up to complete his examination-in-chief and did not make himself available for cross-examination and, therefore, the Court had no other option but to close the evidence of Defendants and this fact was never agitated thereafter by Defendants either before Trial Court or before the lower Appellate Court and, therefore, Defendants did not lead any evidence. It was then contended that Defendants did not become party to the lease which was renewed by Hooseini Lakdabazar Ltd in favour of Plaintiffs. It was then contended that definition of “licensee” as defined under section 5(4A) of the Bombay Rent Act was given a narrow meaning and, on the other hand, the term “license” which was defined under 16 (WP4701.01) the Easement Act was defined in a wider manner. It was submitted that if the legislature had intended that the word “license” as defined under the Indian Easements Act, 1882 should also be defined in a similar way as under the Bombay Rent Act, the legislature would have mentioned this fact in the definition itself. It was submitted that, therefore, wide meaning of the term “license” as defined under the Indian Easements Act could not be given to definition under the Bombay Rent Act. It was then submitted that since much emphasis had been laid on the term “license fee or charge” as also the word “nominal” since these words were not defined under the said Act, dictionary meaning would have to be seen. He, therefore, invited my attention to the dictionary meaning of the words “charge”, “fee”, “license” and “nominal” with reference to definition in various dictionaries. It was also submitted that in the definition of the word “license” under the Bombay Rent Act, member of the family was clearly excluded and that no specific provision was made in respect of commercial premises. He then invited my attention to the deposition of Plaintiffs more particularly para 7 of the said deposition and submitted that 17 (WP4701.01) in view of the said deposition, it was clear that exclusive possession was not given to Defendants since the keys of outer lock were with Plaintiffs. It was then submitted that in a case where the firm consisted of partners and who had expired during pendency of the suit, the other partners who were then brought on record could not claim protection under the Bombay Rent Act. Reliance was placed on the judgment of learned Single Judge of this Court in Vijaya Madhukar Desai and others vs. Bharat Shantilal Mehta and others1. It was submitted that the learned Single Judge in the said case had clearly observed that after death of the original partners, the partners who were then inducted could not claim protection and that they were held to be illegal subletees. Attention of this Court was invited to the conduct of Defendants to point out that no reply was given to the notice. Counsel for the Plaintiffs/Respondents also invited my attention to the averments made in the Written Statement and submitted that both the Courts below have taken the view that the said amount of Rs 25/- was not a charge or fee. 1 2011(2)Mh.L.J. 768. 18 (WP4701.01) 11. Mr. Korde, the learned Senior Counsel appearing on behalf of Defendants, in rejoinder, submitted that the lower Appellate Court while holding that Defendants are not protected tenants had only relied on the averment made by Defendants in their Written Statement that they were paying Rs 25/- as rent for the land and not the structure and on the basis of the said averment alone, the lower Appellate Court did not accept the submission of Defendants. It was submitted that the lower Appellate Court, therefore, had clearly committed an error of law apparent on the face of record by relying only on the said averment in the Written Statement. It was then submitted that so far as question of exclusive use and possession is concerned, the definition under section 5(4A) clearly indicated that what was necessary was occupation of the premises. He also invited my attention to the agreement and clauses 1 and 2 of the said agreement which indicated exclusive use. He, therefore, submitted that the submission of Plaintiffs on this point was not correct. He also submitted that so far as the submissions regarding continuation of other Defendants as 19 (WP4701.01) partners is concerned, it was contended that all along Defendants had contended that there were other partners who were not brought on record by Plaintiffs and this averment was made in the Written Statement from the beginning and, after death of two Defendants, other partners were brought on record and, therefore, the ratio of the judgment on which reliance was placed by the Counsel for Plaintiffs was not applicable to the facts of this case. 12. I have heard both the Counsel at length. Before I take into consideration rival submissions, very briefly it will be necessary to take into consideration scope of the power which can be exercised by this Court under Article 227 of the Constitution of India. In its several judgments, the Apex Court has emphasized that while exercising power under Article 227 of the Constitution of India, this Court is not expected to re-appreciate the evidence and decide the Petition under Article 227 as if it is an appeal. The Apex Court in its recent judgment in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil1 has taken into 1 2010(6) Mh.L.J.661 20 (WP4701.01) consideration various earlier judgments of the Apex Court and has summarized the power of this Court under Article 227 in para 62. It will be fruitful to reproduce the exact words of the Apex Court in para 62 of its judgment which reads as under:- “62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In 21 (WP4701.01) cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within