1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4091 of 2008 Sabina Vazir .. Petitioner versus Inamodin Shokatali Nensey .. Respondent ... Mr.Mahesh Joshi for the petitioner. Mr.N. Engineer i/b M/s.Mansukhlal Hiralal & co. for the respondent. CORAM : A.M.KHANWILKAR, J DATED : 29th July 2008 P.C.: 1. Heard counsel for the parties. 2. Perused the relevant documents and the decision of the two courts below. In my opinion, no fault can be found with the concurrent view taken by the court below in directing the petitioner to hand over possession of the suit premises to the respondent applicant. The courts below have 2 concurrently found that in terms of clause no.11 of the stated agreement for sale executed between the parties in May 2004, the parties never intended to treat the possession of the petitioner over the suit premises as a part performance of agreement of sale. In fact, the leave and licence agreement dated 7th July 2004, if read as a whole leave no manner of doubt that the parties were ad-idem that all other agreements between the parties will stand superseded, save and except the said leave and licence agreement. Even the learned Single Judge of this court had occasion to advert the said clause no.21 of the leave and licence agreement in its order dated 10th March 2008, while rejecting the prayer for ad-interim relief claimed by the petitioner in the suit for specific performance instituted in relation to agreement of sale executed in May 2004. Even that finding will bind the parties. I am informed that no appeal has been carried against the said decision. 3. Be that as it may, I am conscious of the fact that the said finding is recorded in some different proceedings between the parties. However, the argument of the petitioner can be addressed also in the context of clause no.21 of the leave and licence agreement. On reading the said clause, I 3 have no hesitation in adopting the same reasoning as noted in order dated 10th March 2008 passed by the learned Single Judge of this court. In other words, on reading clause no.11 of the agreement of sale and clause 21 of the leave and licence agreement dated 7th July 2004, which has been executed in subsequent point of time, it leaves no manner of doubt that the parties were ad-idem that the possession of the suit premises in relation to the suit premises would continue to be only in the capacity of licensee. No more and no less. 4. Admittedly, the licence period has expired, the petitioner was liable to vacate the suit premises. Having failed to do so, the respondent licensor had no option but to take recourse to remedy of proceedings under Maharashtra Rent Control Act. Both the courts below have answered the issue against the petitioner which, in my opinion, is the appropriate view in the fact situation of the present case and does not warrant any interference in exercise of writ jurisdiction under Article 227 of the Constitution of India. 5. Counsel for the petitioner,however, would contend that both the authorities below have glossed over the fact that even after execution of the leave 4 and licence agreement dated 7th July 2004, the respondent has executed indemnity bond in favour of the petitioner on 29th July 2004. The argument of the petitioner is that the execution of indemnity bond in subsequent point of time would clearly belie the claim of the respondent that clause no.21 of the leave and licence agreement was to prevail and would supersede the agreement of sale executed in May 2004. 6. In my opinion, this argument is an argument of desparation. For, no factual foundation has been laid in the reply by the petitioner before the first authority taking up this specific plan. Instead, the petitioner has merely adverted to the indemnity bond dated 29th July 2004 without elaborating anything further. In other words, this contention is not taken in the written reply. Moreso, counsel for the petitioner is unable to point out from the judgement of the two authorities below that such contention was specifically canvassed before the lower courts. It cannot be disputed that the argument is one to persuade the court to take the view that the "intention of the parties" behind executing the indemnity bond dated 29th July 2004 was to undo the effect of clause 21 of the leave and licence agreement dated 7th July 2004. That 5 obviously is a question of fact which ought to have been specifically asserted and put in issue before the first authority. Having failed to do so, it is not open to the petitioner to agitate this argument for the first time that too across the bar. Significantly, no such ground has been taken even in the present writ petition filed before this court. 7. Hence, this petition is devoid of merits. The same is dismissed. 8. At this stage, counsel for the petitioner submits that the operation of this order be stayed for a period of 12 weeks so as to enable the petitioner to take up the matter in appeal before the Apex Court. This prayer is opposed by the counsel for the respondent on two grounds. Firstly, that the petitioner has still not complied with the direction issued by the authorities below to pay sum of Rs.30,000/- per month from 1st January 2005 till handing over vacant possession of the suit premises. Besides request for 12 weeks time is excessive. 9. I am in agreement with both the submissions canvassed by the counsel for the respondent referred to above. In the circumstances, the operation of this order as well as the impugned orders will be 6 kept in abeyance subject to petitioner depositing the entire amount directed by the court below within one week from today and also file usual undertaking in this court within one week from today. On complying with this direction, the order may be kept in abeyance for a period of six weeks from today. In the event the petitioner fails to file usual undertaking within one week and/or fails to deposit the entire amount directed by the court below in this court till one week, the respondent will be free to take such steps as may be advised for effectuating the order of possession passed by the authorities below. 10. After the amount is deposited by the petitioner in terms of this order, respondent will be free to withdraw the same without prejudice to the rights and contentions of the petitioner in the proposed appeal to be filed before the Apex Court. 11. Ordered accordingly. (A.M.KHANWILKAR, J)