1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7479 OF 2008 Shri Adhik Nivrutti Karande. ..Petitioner. V/s. Dr.Mrs. Anuradha Sanjay Joshi ..Respondent. Mr.Uday P. Warunjikar for petitioner. Mr.G.S.Godbole i/b. Ashish S. Naik for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 4, 2009. DATE : APRIL 4, 2009. DATE : APRIL 4, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Only three contentions have been raised before this Court. The first argument is that the arrangement between the parties was that of lease and not leave and licence agreement. This is a question of fact, which has been considered by the two Courts below. Both the Courts below have concurrently found that the agreement was nothing but leave and licence agreement. There is no reason to doubt the correctness of the said finding. In the circumstances, this argument does not take the matter any further. 2 3. The next argument is that the tenor of the arrangement between the parties was that on expiry of the period under first agreement on 28th February, 2004, the parties would enter upon fresh arrangement on providing escalation in respect of monthly licence fee, which obviously was a separate agreement on expiry of 11 months’ period after February, 2004. The third agreement came into being when the petitioner agreed to pay further escalation on the licence fee and which was accepted by the licensor. Relying on this circumstances, it is argued that the parties would be governed by the third agreement; whereas the present action has been instituted on the basis of the first agreement dated 28th March, 2003. To buttress this submission, Counsel for the Petitioner relied firstly on the reply given to the suit notice. In the Advocate’s reply reliance was placed on paragraph-9 at page 29. What is overlooked is the stand taken in the reply by the Petitioner. According to the Petitioner, it is stated that the Petitioner had obtained the suit premises for his use for a period of five years on monthly rent, which has to be increased yearly, as stated in the registered instrument and which five years period has to expire on 27th March, 2008. The case as is now pressed into service was not stated in this reply. 3 4. Be that as it may, the stand taken by the Petitioner fairly concedes that the outer limit of the licence period was to expire on 27th March, 2008. That period is already over. Consequent to expiry of the said period the only option for the Petitioner is to vacate the premises unless the licensor was willing to extend the licence for further period. In that sense, all arguments of the Petitioner should fail on this count alone. 5. Reliance was then placed on the written submission filed by the Petitioner before the lower Court which indeed raised the point now canvassed before this Court. The fact remains that no written agreement has been executed between the parties for the subsequent period. This position is conceded by the Counsel for the Petitioner. Significantly the argument of of the Petitioner is dependent upon the written agreement dated 28th March, 2003, which is a registered document. For, the argument proceeds on the basis of clauses in the said agreement. In other words, the assumption of the Petitioner that there was second agreement and later on third agreement which was prevailing is devoid of merit. In the circumstances, even this argument will have to be 4 stated to be rejected. 6. The last contention raised before me is that although the premises were let out for residential purpose in terms of the agreement between the parties, in fact, the Petitioner was using the premises for office, which means that premises were given for non-residential purpose. In such a case, provisions of Section 24 of the Rent Act will have no application. The argument is an argument of desperation. The parties will be governed by the written agreement. Significantly, on the argument of the Petitioner, it necessarily follows that, the Petitioner has changed the user of the suit premises. That has been done without any prior written permission of the licensor in this behalf. No such communication has been produced or such case put to the Respondent’s witness. In other words, the parties will be bound by the written agreement in which the purpose of letting out is stated to be residential purpose. If so, the provisions of Section 24 will govern proceedings and no fault can be found with the decision of the two Courts below. 7. Accordingly, this Petition fails. The same is dismissed. 5 8. At this stage, Counsel for the Petitioner submits that the Petitioner may like to carry the matter in appeal for which reason interim protection granted to the Petitioner be continued at least for 8 weeks. This request will have to be turned down on the basis of the stand taken by the Petitioner himself before the lower Court. According to him, licence period was up to five years which has expired in March, 2008. The Petitioner, in that sense, is in unauthorised occupation of the suit premises. The indulgence can be shown to the Petitioner only if the Petitioner was to deposit entire amount specified by the Court below payable by the Petitioner to the Respondent within one week from today. It is only then the Petitioner can seek indulgence from this Court. In addition, the Petitioner shall deposit further sum of Rs.30,000/- within one week towards the compensation amount for a period of 8 weeks from today, as is requested by the Counsel for the Petitioner. Failure to deposit above said amount within one week from today, it will be open to the Respondent to proceed against the Petitioner in accordance with the law. However, if the amount is deposited in time, no precipitative steps be taken by the Respondent for a period of 8 weeks from today. 6 Besides depositing the amount as aforesaid, the Petitioner shall file usual undertaking in this Court within one week from today. The undertaking should also contain that on expiry of 8 weeks the Petitioner shall hand over vacant and peaceful possession directly to the Respondent without requiring the Respondent to resort to execution proceedings. The amount deposited by the Petitioner be made over to the Respondent. . Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)