:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.540 OF 2007 CIVIL REVISION APPLICATION NO.540 OF 2007 CIVIL REVISION APPLICATION NO.540 OF 2007 Shri Chandrabhushansing Sadhusing Yadav Age:56 yrs., Occ: Service, Resident of 1/8, Chandralok Co-operative Housing Society, Plot No.89, Shivganga Nagar, Ambernath (East), District Thane ...Applicant. v. Shri Shreshtha Chandra Burman Adult, residing at Near Block No.A-104, Kurla Camp, Ulhasnagar 421 004,Dist.Thane. ...Respondent. Mr.P.D.Dalvi, adv. for the Applicant. Mr.R.M.Agarwal, adv. for the Respondent No.1. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 7th February, 2008. DATE: 7th February, 2008. DATE: 7th February, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Revision applicant is the original defendant and the landlord while the respondent is the original plaintiff and he was licensee in the suit premises. The suit premises were taken by the plaintiff from the defendant under leave and licence agreement. According to the plaintiff leave and licence was entered into on 28th October, 1997 and it was for 11 months. Therefore, period of leave and licence was to expire on 28th September, 1998. However, on 2nd August, 1998 defendant with the help of his hirelings forcibly dispossessed the plaintiff from the suit premises. Plaintiff also lodged report with the police but no action was taken. In such circumstances, he filed Regular Civil Suit No.173 of 1998 under Section 6 of the Specific Relief Act for possession of the suit premises. The suit was contested :2: by the defendant and according to him leave and licence agreement was entered into on 1-9-1997 for a period of 11 months and the said period had expired on 30th July, 1998 and after expiry of that period on 2nd August, 1998, the plaintiff had himself handed over possession of the suit premises to the defendant. Relations between the parties were cordial and of faith. However, later on the plaintiff has filed false suit under Section 6. As he had vacated the premises himself, the suit is not tenable and is liable to be dismissed with cost. 2. Several issues were framed by the learned trial Court. Plaintiff did not examine himself on the ground of his ill health but his son Satyajeet, aged about 27 years, was examined and according to him, he himself was working alongwith his father in the suit shop and was carrying on business of making grills. The defendant examined himself and four other witnesses in respect of his claim that the possession was handed over by the plaintiff on 2nd August, 1998. Taking into consideration the oral and documentary evidence on record, the learned trial Court accepted the plea of the plaintiff and rejected the contention of the defendant. In the result, suit for possession under Section 6 of the Specific Relief Act came to be decreed against the defendant. Therefore, the defendant has preferred the present revision application against the impugned :3: judgment and order. 3. Heard the leaned counsel for the Parties and perused the evidence as well as documents relied upon by the parties. 4. Evidence led by the plaintiff reveals that plaintiff was first inducted as a licensee under the leave and licence agreement dated 19th October, 1996. That agreement was for a period of 11 months. Licence fee was fixed at Rs.1,400/- per month and the plaintiff had also deposited Rs.20,000/- with the defendant/landlord. He had agreed to vacate the premises on expiry of period of licence, i.e., on 18th September, 1997. That agreement was signed by the wife and son of the defendant. Original document was with the defendant and xerox copy of the same was produced before the Court and it was marked Exhibit 64. The learned counsel for the defendant/applicant vehemently contended that neither the original document was produced before the Court nor any notice was issued to the defendant to produce original document and the document, purporting to be xerox copy of the original document, was produced during the evidence of witness P.W.Satyajeet and this document has been wrongly admitted and exhibited in the evidence, and, therefore, it is liable to be rejected.The learned counsel contended that in view of the leave and licence :4: agreement Exhibit 43 dated 1-9-1997, is relevant for the present suit. According to him, this document shows that premises were lying vacant and the possession was given to the plaintiff on the basis of this document, which is signed by the plaintiff and defendant both and it is also signed by the the wife of the defendant as a witness. 5. If both these documents are compared, it appears that language of these two documents is almost identical except changes wherever it was necessary. It is material to note that the leave and licence agreement Exhibit 43 appears to have been drafted and prepared on the stamp paper, which was purchased on 24-9-1997. The first sentence of the document reads " THIS AGREEMENT OF LEAVE AND LICENCE IS made and entered into at Ambernath, on this 1-9-1997". If the stamp paper was purchased on 24-9-1997, it was impossible to execute leave and licence agreement on 1-9-1997. In the second clause on the second page of the said agreement, it is mentioned that the period of licence has been fixed by the parties as 11 months and the same shall be commenced from the date of execution by these persons, i.e., from 28th October, 1997. It may be noted that while all the terms of the agreement are typed, the date 28th October, 1997 is hand written. The space for writing the date after the word ’from’ was left blank in the typed document and, therefore, the date has been put in handwriting. :5: After that nowhere date is mentioned about the execution of the document. In view of the fact that stamp paper on which this document was written was purchased on 24-9-1997, it is clear that this document could not have been executed on 1-9-1997. The person, who had typed the terms of the agreement had left the date blank so that the date of the commencement of the leave and licence agreement could be entered into by the parties and therefore, the date 28th October, 1997 was written in handwriting. 6. It will be relevant to refer to the terms of the earlier leave and licence agreement Exhibit 64. That document was prepared on the stamp paper purchased on 17th October, 1996 and the leave and licence agreement appears to have been entered into and executed on 19th October, 1996. It shows that monthly compensation was fixed at Rs.1,400/-. Period of licence was 11 months, i.e., from 19th October, 1996 to 18th September, 1997. It also shows that an amount of Rs.20,000/- was deposited by the plaintiff with the defendant/landlord for due performance of the contract and for taking care of the shop. This amount was to be refunded to the licensee on expiry of licence and on handing over possession of the shop. Even though the learned counsel for the defendant/landlord vehemently contended that this document is not genuine, in the cross-examination the defendant had admitted each and every term of the :6: contract dated 19th October, 1996. He admitted that the plaintiff was inducted in the suit premises on 19th October, 1996 and that the licence was for eleven months. He further admitted that the compensation was fixed at Rs.1,400/- per month and that the plaintiff/licensee had deposited Rs.20,000/- as per his right. Admittedly the amount deposited under both the agreements was same and only compensation was enhanced from Rs.1,400 to Rs.1,600 at the time of second agreement. The defendant admits that he had not refunded an amount of Rs.20,000/- to the plaintiff when he had vacated the premises. It is difficult to understand how the licencee would vacate the premises without accepting deposit amount of Rs.20,000/-. It was to be refunded to him at the time of vacating the same. 7. It is material to note that as per the first leave and licence agreement, terms of which are clearly admitted by the defendant in the cross-examination, the licence period was to expire on 18th September, 1997. It is difficult to understand if licence period under that agreement was up to 18th September, 1997 why the plaintiff would enter into another agreement from 1-9-1997 and that too by increasing the compensation amount. The learned counsel for the defendant emphasised on the contents of third paragraph of the agreement, which shows that the suit shop was lying vacant and the possession was given to the :7: plaintiff/licencee on that day. However, same words are found in both the documents. It is impossible to believe that if the parties wanted to renew the agreement and entered into fresh agreement, why the licencee would remove all his material from that shop to some other shop and then came back to the said shop. Taking into consideration these circumstances, it appears that the licence period under the first agreement was to expire on 18th September, 1997 and, therefore, it can not be believed that on 1st September, 1997, fresh agreement was entered into and on that day shop was lying vacant and the possession of the vacant shop was given to the plaintiff on that day. In all probabilities, the plaintiff was in possession of that shop on that day and was expected to be in possession upto 18th September, 1997. Even the date 1-9-1997 in the opening sentence of leave and licence agreement Exhibit 43 appears to be wrong. It may be a typing mistake because the stamp paper itself was purchased on 24-9-1997. Normally it was expected that the fresh leave and licence agreement would be entered into with effect from 19th September, 1997 but some how it was not executed on that day and it appears that it must have been actually executed on 28th October, 1997 and, therefore, in the second clause, period of licence was shown as 11 months commencing from 28th October, 1997. As such period of licence would expire on 27th September, 1998. There could be no valid reasons for :8: the plaintiff to vacate the premises on 2nd August, 1998. The contention of the defendant that the period of licence was expired on 30th July, 1998 and, therefore, he had vacated the premises on 2nd August, 1998 does not appear to be correct. It appears that he is trying to take benefit of the date 1-9-1997, which was wrongly written on the document. 8. The defendant examined himself and four others witnesses in support of his contention that the plaintiff had actually vacated the premises on 2nd August. One of the witnesses was a driver of the tempo, who was examined to show that the plaintiff had transported his goods from the said shop to different place. The learned trial Court rejected the evidence of this witness. At one place, the learned trial Court observed that the names of these witnesses were not mentioned in the written statement and that was one of the reasons for rejecting the evidence. The reason does not appear to be correct. It was not necessary for the defendant to plead the evidence but merely because of this mistake, findings of the trial Court can not be said to be wrong, perverse or illegal. 9. The learned counsel for the defendant/applicant vehemently contended that the plaintiff himself was not examined and that is the ground to dismiss the suit and in support of this, he placed reliance on Vidhyadhar v. Vidhyadhar v. Vidhyadhar v. :9: Manikrao & Anr. AIR 1999 SC 1441 Manikrao & Anr. AIR 1999 SC 1441 Manikrao & Anr. AIR 1999 SC 1441. In paragraph 16 of that judgment, Their Lordships observed as follows: "16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. AIR (1927) Privy Council 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat MANU/MP/0042/1970 also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. AIR (1971) Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. AIR (1974) Punjab & Haryana 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box. In the present case, in stead of plaintiff himself, his son P.W.1 Satyajeet was examined. His evidence shows that his father, i.e., the plaintiff had suffered fracture of both the legs due to fall from a tree and, he had also suffered from heart attack, therefore, he was unable to move from the house and, therefore, he could not appear before the Court. It is true that he stated at one place that he would not examine any :10: witness except father and himself but his father was not examined. However, evidence of P.W.1 Satyajeet reveals that he and his father both were carrying on business of the shop and, therefore, P.W.1 Satyajeet was fully aware about the terms of the contract and about the facts of this case. According to him on 2-8-1998 at about 11.30 a.m., the defendant had come alongwith 15-16 persons including Advocate Chhotu Panthaliya and by giving threats, they had forcibly taken possession. In his presence, this incident occurred and according to him at the relevant time, his father was not present because he had gone to Tarapur. It shows that when actual act of dispossession was committed, this witness was present and the plaintiff himself was not present. In these circumstances, merely because the plaintiff himself was not examined and his son Satyajeet was examined, this case can not be thrown away. 10. Taking into consideration the evidence on record, I am convinced that the learned trial Court was right in holding that the defendant/landlord had forcibly dispossessed the plaintiff without following due process of law and, therefore, the trial Court was right in passing the decree for possession. The learned trial Court has discussed the evidence minutely. Even if for the sake of arguments, two views are possible about the facts, merely because second view is also possible, view taken by the trial Court can not be set :11: aside and reversed by the revisional Court. In the revision under section 115 of the Code of Civil Procedure, the Revisional Court has to find out whether the impugned order is illegal, wrong or perverse. Taking into consideration the evidence on record, it is impossible to come to such a conclusion. 11. In view of the above circumstances, Revision Application stands dismissed. 12. At this stage, the learned counsel for the defendant makes a request to stay execution of the decree for a period of eight weeks and also makes a statement that if the defendant/applicant does not succeed in Supreme Court, he would vacate the premises within eight weeks from this day. In view of this, the execution of the decree shall remain stayed for a period of eight weeks from this day subject to the defendant/revision applicant filing written undertaking within two weeks that if he does not get relief from the Supreme Court, he would peacefully vacate the premises and hand over the possession to the plaintiff within eight weeks from this day without any objection. :12: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)