NMS1050-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1050 OF 2010 IN SUIT NO.998 OF 2010 Gazebo Restaurant and Departmental Store Pvt.Ltd. And Anr. .. Plaintiffs Versus Aktar Qureshi @ Aktar Kamlu Qureshi and Anr. .. Defendants Mr.M.M.Vashi i/b.M.P.Vashi & Associates for plaintiffs Mr.Ankit Lohiya with Ms.S.R.Waghmare and Y.H.Mulani i/b. Mulani & Co. for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th September 2010. P.C.: 1] With the consent of both sides, the notice of motion is heard finally. The plaintiffs have filed this suit claiming the following reliefs:- (a) that it be declared that the defendants are not entitled to enter upon the suit premises and/or remain in the suit premises and/or use the counters/ racks for selling their goods; NMS1050-10 2 (b) that the defendants be permanently restrained by an order and injunction of this Court from entering upon or remaining in the suit premises and/or use the counters/ racks for selling their goods; (b-i) that the defendants be ordered and decreed to pay to the plaintiffs a sum of Rs.1,50,000/- with 18% interest from 19th January 2010 onwards as more particularly shown in particulars of claim which is annexed as Exh.”F”. (c) That pending the hearing and final disposal of the suit the defendants and/or their hirelings or any persons claiming through them be restrained from entering upon or remaining in the suit premises and/or use the counters/ racks for selling their goods;” 2] In furtherence of the said final reliefs, a notice of motion is moved for interim reliefs and particularly to prevent the defendants or any person claiming through them from entering upon the premises and/or remaining therein and/or use counter, racks for selling their own goods. NMS1050-10 3 3] An application for ad-interim reliefs was made on 28th April 2010 and my attention was invited by both learned Counsel to the observations of this Court and particularly in para 3. The same reads thus:- “3. After having considered the entire record, it is difficult to accept the case of the plaintiffs that the defendants were appointed to work as salesman because no specific terms and conditions on which the defendants were made to work as salesman is brought on record. The plaintiffs claim that they have shops and establishment licence in the name of their shop i.e. Gazebo Restaurant and Departmental Store Pvt.Ltd., and according to them the business of the shop premises is carried out by the plaintiffs. If that is so, in order to make out a case in that behalf and in the wake of resistance on the part of defendants, it was absolutely necessary for the plaintiffs to produce few invoices to show that the goods are sold by the plaintiffs and not by any of the defendants. It was also necessary for the plaintiffs to make out prima facie case as regards their case that commission on daily basis was paid. It was necessary for the plaintiffs to set out that commission of a particular NMS1050-10 4 amount was being paid on few days prior to 18.1.2010. No specific figure is mentioned in the plaint to say that a particular amount is paid to the defendants for having worked for a particular date. The affidavit dated 6.2.2010 is equally vague as regards the payment of commission. Prima facie the said affidavit appears to have been procured by the plaintiffs for purpose of placing their case before the Court. The said affidavit is required to be seen with doubt on account of affidavit dated 1.3.2010 executed by atleast 9 persons.” 4] For appreciating rival contentions, it would be necessary to note the allegations in the plaint. The plaintiffs are filing a suit for declaration and for permanent injunction on the basis that one Harsh Saigal, Kamlesh Saigal, Goldie Sud and Shilpa Sud are owners of immovable property more particularly described in para 3 of the plaint. It is stated that there is ground plus three upper floor building situate on the said land and there is also independent garage situate on the ground floor. The plaintiffs No.1 is tenant of a part of the ground floor premises and an independent shop. Plaintiff No.2 is a licensee in respect of a part of the ground floor NMS1050-10 5 premises and these premises are shown on the rough sketch of the plan marked as Annexure A to the plaint. 5] First plaintiff has a shop and establishment licence in his name for the front portion and he has also rent receipt and electric meter in its name and is paying the electricity bill by cheque. Copies of these documents are at Annexures B, C and D to the plaint. As far as the back portion of the premises is concerned, plaintiff No.2 has taken the same on leave and licence basis under a registered agreement for sale dated 17th December 2005. 6] In para 7, 8, 9 and 10 of the plaint, this is what is averred by the plaintiffs:- “7. The plaintiffs state that the plaintiffs have evolved a business system, whereunder salesmen are appointed to sell ladies fashion wear and eatables. Each salesman is paid a commission on the quantum of turn over achieved by the salesman. The payment of the commission is made at the end NMS1050-10 6 of the day and on daily basis. The defendants are such two salesmen appointed by the plaintiffs. There is no fix place allotted to any of the salesmen and they keep on shifting from counter to counter. The plaintiffs state that he existing salesmen have set out the aforesaid facts on affidavit which is annexed as Exh.E.” “8. The plaintiffs state that due to bad performance of the defendants in selling goods, the plaintiffs did not want the service of the defendants. With the result, the plaintiffs orally informed the defendants not to enter upon the suit premises from 18th January 2010.” “9. The plaintiffs state that the lock and key on the front side of the suit premises is with the first plaintiff and lock and key of the back portion of the suit premises is with the plaintiff No.2. The watchman and representative of the plaintiffs open the suit premises and allow the salesmen to enter upon the suit premises. There are no internal partitions/ NMS1050-10 7 galas/ shops in the suit premises. As stated hereinabove, there are only moveable counters/ racks. Therefore, neither the defendants nor any other salesmen can claim to be in possession of any portion of the suit premises. Moreover, the defendants and other salesmen only work on day to day basis for the plaintiffs and earn commission depending on the total turnover/ sale. However, after 18th January 2010, the defendants are forcibly entering upon the suit premises and insisting on working as salesmen of the plaitiffs. As the said premises are frequented mostly by ladies it is not in the interest of the business, reputation and goodwill of the plaintiffs to create a scene at site. It is also not advisable to enter into any physical confrontation with the defendants.” “10. The plaintiffs state that the defendants are forcibly entering upon the suit premises and insisting on selling their own goods from any available counter. Therefore, the directors of the first plaintiff and 2nd plaintiff tried to lodge a police complaint. However, the Khar police NMS1050-10 8 station has treated the dispute as a civil dispute and has refused to register the complaint. With the result, the plaintiffs have no other alternative but to file the present suit.” 7] It is on the basis of these allegations and averments that the instant suit with the aforequoted prayers has been filed. 8] The notice of motion is supported by an affidavit of Mr.Amit Makhija who is one of the Directors of the plaintiffs and he states that the suit has been filed for aforestated reliefs and while confirming the plaint averments, he states that the plaintiffs have been hiring salesmen who are paid compensation at the end of the day and on daily basis on the basis of the sale/ turnover achieved by each salesmen and on 18th January 2010, the defendants have been told not to enter the premises and work as a salesman as the defendants could not achieve the desired turn over/ sale. 9] At this stage, it would be pertinent to notice that plaintiff has annexed to the plaint as Annexure E, an affidavit which is stated to have NMS1050-10 9 been signed by about 42 persons who confirm the business arrangement. They state that they worked as salesmen on commission basis by selling goods from counter/ rack put up on ground floor of the building known as Meleagrina Building situate on the said plot. They confirm that the defendants have also been working under the same arrangement and now they are forcibly entering the premises although the arrangement has come to an end. 10] It would be of some relevance to note that the defendants have opposed the prayers in the notice of motion not by mere denials but by stating that the plaintiffs have suppressed true and correct facts from this Court. It is stated in the affidavit in reply of defendant No.2 that Harsh and Kamlesh Saigal are also co-owners of the suit building. They have filed several cases in order to protect the illegal shopping centre which is erected in the southern compound of the building. A case is also registered against them for harassing tenants of the building. They have purported to annexed copy of the conveyance by which the property was purchased and in the schedule of conveyance that is the tenant list, the area occupied by the plaintiff No.1 is shown to be of only 612 sq.feet NMS1050-10 10 whereas in the plaint it is shown as entire southern compound. Therefore, the plaintiffs are laying a claim to a portion which is not conveyed to them under the conveyance, is the plea raised in paras 5 and 6 of the affidavit in reply. 11] Thereafter, it is urged that once the building was purchased the said co-owners encroached on the southern side compound and thereafter put up sign board advertising sale of stalls. It is stated that the Director of plaintiff No.1 Mr.Goldie Sud has victimized illiterate persons like defendants and induced them to pay heavy amounts thereby possession of the illegal stalls have been given after collecting Rs.5 lakhs each from the defendants and on monthly charges of Rs.1200 for which no receipt was issued by the plaintiffs and when defendants demanded the same, plaintiffs told them, that the same cannot be issued because the shopping centre has some problems and the matter was pending before the Court. 12] In paras 9 and 10, it is stated as under:- “9. I stated that the plaintiffs have totally suppressed NMS1050-10 11 from this Court that on 26th January 2010 the staff of the plaintiff No.1 in assistance with Goldie Sood and others had tried to dispossessed myself and the defendant No.1 forcibly and without following due process of law from our two stalls in the said Gazebo Shopping Centre and thereafter, I and the defendant No.1 have lodged complaints with the Khar police station, pursuant to which a F.I.R., has been duly registered against the said Goldie Sood and others and the said Goldie Sood is wanted in the said F.I.R. No.50 of 2010.” “10. I further state that having failed to obtain forcible possession of the our shops the plaintiffs have now come to this Court by making misleading statements that I and the defendant No.1 are not in possession and that we should be restrained from entering the premises when in fact what the plaintiffs ought to have done is that they should have filed a substantial suit for recovery of possession.” NMS1050-10 12 13] On this basis, there are several allegations made and what is contended thereafter is that the story of departmental store is false and vexatious and there are no documents to satisfy and prove the claim that the plaintiffs are running a shopping centre. There are denials of the averments and allegations that the defendants are the salesmen of the plaintiffs. In para 21 the issue of jurisdiction is raised on the basis that both defendants are tenants of the suit premises and, therefore, by virtue of Maharashtra Rent Control Act, 1999 the suit will not be maintainable. The issue of jurisdiction be framed and tried as a preliminary issue under section 9A of CPC. 14] Without prejudice to these contentions, it is stated that the claim of plaintiff No.1 that he is tenant is also not valid because none of the documents in that behalf are produced. There are also contentions raised with regard to non production of any salary slip and once again it is reiterated that a sum of Rs.5 lakhs has been paid and montly rent of Rs. 1200 is being paid. In para 27, this is what is stated:- “27. With reference to para 9, the contents are denied. NMS1050-10 13 I deny that the lock and key of the front side of the suit premises is with the plaintiff No.1 and the lock and key of the back portion of the suit premises is with the plaintiff No.2. I deny that the watchman and representatives of the plaintiffs open the suit premises and allow the salesmen to enter into the suit premises. I deny that there are no internal partitions etc. in the suit counters and racks. I state that the Municipal Corporation of Greater Mumbai had served a notice dated 19th September 2008 under the provisions of the Maharashtra Regional and Town Planning Act, 1966. I deny that I and the defendant No.1 and other salesmen are working on day to day basis and earning commission depending on the total turnover. I state that the said contentions are false as we are selling our own goods from the premises which are in our occupation and possession.” 15] On this basis the prayers for interim reliefs are contested and it is urged that the notice of motion be dismissed. NMS1050-10 14 16] It is pertinent to note that the defendants deny that they have been engaged as salesmen or any commission has been paid to them. Instead, they state that they are selling their own goods from the premises which are in their occupation and possession. They lay a claim of tenancy in respect of these premises. 17] It is on these averments and allegations that I have heard the learned Counsel for parties. 18] Mr.Vashi, learned Counsel for plaintiffs submitted that the observations in the ad-interim order and particularly those reproduced above, cannot prevent this court from considering the prayer of the plaintiffs for interim reliefs. Mr.Vashi submits that for appreciating the claim of the plaintiffs, the allegations in the plaint must be considered in their entirety. The plaint will have to be read as a whole and not in bits and pieces. He submits that any para if read in isolation, then, possibly it is conveyed that there is some relationship, wherein the defendants are employed and/or have been engaged as salesmen. However, on a fair, NMS1050-10 15 complete and proper reading of the plaint, what the plaintiffs have alleged is that there is large portion/ area in their premises. It is something like huge hall. Persons like defendants are allowed to bring in their goods and articles for sale. These articles are sold by the parties during fixed hours. There is no identified portion or an fixed area nor is their any demarcation of the space from where the articles are sold. There is no fixed place for trading. All such persons are given an area which is available for disposal of their goods, wares and articles. They cannot make any claim on the basis of either tenancy or otherwise. In such circumstances and when the defendants have denied that there was any relationship of master and servant, then observations at the ad-interim stage need not detain this court from considering the plaintiffs’ request for grant of interim reliefs independent of the same. 19] Mr.Vashi submits that the matter must not be considered only in the light of assertions in the plaint and averments but the court must also consider at this prima facie stage whether the defendants have proved that they have any right to remain in the property as tenants or otherwise. Neither any rent receipt is produced nor are any details of the alleged NMS1050-10 16 tenancy shown. The persons who have inducted the defendants allegedly as tenants are not named. The period for which they are allegedly occupying the premises as tenants has also not been mentioned. There are no details of the rent and other charges, leave alone, the manner in which they are payable. 20] For all these reasons and when the defendants could not show any semblance of right to remain in the property, then, this court must grant the interim relief as the plaintiffs ownership of the property or their rights as a tenant or under a leave and licence agreement which is duly registered, are not prima facie disputed. Once documents are produced and title of the plaintiff is not disputed, then, it is for the defendants to show under what authority or permission, if any, they are occupying the premises. 21] On a query from the Court as to whether the allegations and averments read with prayers would raise an issue of jurisdiction of this Court or not, Mr.Vashi fairly submits that the plea of tenancy as raised should atleast be prima facie substantiated. If there is some material and NMS1050-10 17 if there is any identifiable area which is stated to be covered by the relationship of licensor and licensee or landlord and tenant, then possibly on other things being shown, the issue of jurisdiction had some substance. However, on a vague plea and when there are contradictory stands taken, this Court should not decide the said plea. On the attention of Mr.Vashi being invited to a decision of this Court to the decision reported in 1990 Mh.L.J. 1104 (Causeway Chemist Vs. Abdul Kadir – Appeal From Order No.465 of 1985 dated 3rd August 1990), Mr.Vashi submits that there are several distinguishable features. In that case, the area was clearly identifiable. There, the respondent was permitted to put up a wooden cupboard upon a portion of the premises under an agreement in writing which was dated 2nd June 1955. It was the case of the appellant admitting receipt of Rs.65 per month inclusive of electricity charges. That was a case of revocation of licence by the appellant and upon such revocation, he approached civil court and claimed the relief of possession/ mandatory injunction. It is in such circumstances, that the trial court’s order, holding that it has no competence and jurisdiction to decide this issue, was upheld. Mr.Vashi was at pains to point out that the plea in the said matter was based upon section 5(8) of the Bombay Rent Act, 1947. There, the NMS1050-10 18 Court came to a clear conclusion that there was affixation of the cupboard on the portion of the property. He invites my attention to paras 4 to 6 of the said judgement and submits that the law laid down therein will not apply to the facts of the present case. Equally, according to Mr.Vashi, this Court’s jurisdiction is not ousted even on the basis of the law laid down in the decision of Full Bench of this Court reported in 2007 (5) Mh.L.J. 341 (Prabhudas Damodar Kotecha Vs. Smt.Manharbala Jeram Damodar). Mr.Vashi submits that there, section 41 of the Presidency Small Causes Court Act, 1882 as amended by he Maharashtra Act of 1976 was analysed and it was held that a gratuitous licensee in possession of an immovable property cannot be evicted or ousted by approaching a civil court but the party seeking his ouster must approach the competent court named in section 41 viz., Presidency Small Causes Court at Mumbai. He submits that even the said judgement would have no application to the facts of the present case. 22] On the other hand, it is contended by Mr.Lohia appearing for defendants that the ad-interim order passed by this Court and the observations therein would show that the claim of the plaintiffs is not NMS1050-10 19 genuine and bonafide. They have approached the Court with a conflicting claim. It is not possible for them to now argue that there is no relationship of employer and employee. Merely urging across the bar that the defendants are not their salesmen would not suffice. The plaintiffs have argued the matter before the learned Single Judge of this Court at an ad-interim stage on the specific plea that the defendants were engaged as salesmen who were allowed to sell their Articles and goods on commission. It was payable to the defendants on daily sales. It is on the basis that such an arrangement being discontinued, that the suit has been filed. Now, plaintiffs are seeking to controvert the claim of defendants of tenancy. That would mean permitting them to set up a different case. Mr.Lohia argues that the plaintiffs must succeed on the basis of their own case and not on the inconsistencies in the defence raised by the defendants. Even otherwise, Mr.Lohia’s submission is that the matter is covered by the law laid down in “Causeway Chemist” (supra) because there reference is made to earlier decisions of this Court. Once there is a plea raised that the defendants were allowed to enter the property, remain therein and sell their goods and articles daily by stacking and storing them, then, something more is made out and this is not a case of tresspass NMS1050-10 20 or the initial authority to occupy coming to an end and, therefore, defendants being labelled as tresspasser. For all these reasons, he submits that the motion be dismissed. All the more, because the pleas raised would show that there is a license given, albeit, gratuitously. 23] With the assistance of the learned Counsel for parties, I have perused the plaint and the annexures thereto so also affidavit in reply and the annexures thereof. I have also perused the order passed at the ad- interim stage by the learned Single Judge. While it is true that the learned Judge has in para 1 of his order set out plaintiff’s case in brief but in para 2 of his order, he has referred to the defendant’s case of they being put in charge of respective cubicals on terms and conditions and they are carrying on their business. Learned Judge in para 2 of his order referred to the affidavit dated 6th February 2010 executed by various persons confirming the arrangement. He has also referred to an affidavit which is annexed by the defendants to their reply. It is clear from the perusal of the order that the learned Judge has referred to the plaint allegations and observed that the plaintiffs have not produced any documents to show the payment of commission. They have also not shown as to how the NMS1050-10 21 defendants were made to work as salesmen. The learned Judge has, therefore, referred to the affidavits and found that the claim is not supported and hence declined ad-interim order. 24] Before me, however, both sides argued on the basis on their rival versions and cases. It is not as if an attempt was made only to dislodge the plaintiffs case on the basis of averments and allegations in the plaint but the defendants argued by relying upon the decisions of this Court that there is a claim of tenancy or in any event there is a right to remain in the property which right is spelt out from the contents of the affidavit in reply. I have made it clear to both