:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1561 OF 2008 M/s. Bombay Cycle & Motor Agency Ltd. ..Petitioner Vs. 1. The Oriental Insurance Co. Ltd. and ors. ..Respondents Mr. Rafiq Dada, Senior Advocate, with Mr. R.M. Jayakar i/by M/s.Jayakars for petitioner. Mr. V.Y. Sanglikar for respondent no.1. Mr. Minoo Siodia with Ms. Aarti Jumani i/by Rustomji & Ginwala for respondent no.3. CORAM: CORAM: CORAM: B.H. MARLAPALLE,J. B.H. MARLAPALLE,J. B.H. MARLAPALLE,J. Reserved Reserved Reserved on : March 12, 2008. on : March 12, 2008. on : March 12, 2008. Pronounced Pronounced Pronounced on : on : on : March 17, 2008. March 17, 2008. March 17, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Rafiq Dada the learned Senior Counsel i/by M/s. Jayakars for petitioner. 2. Rule. Respondents waive service. By consent the Rule is taken up for final hearing forthwith. 3. In Case No.2, 2A & 2B of 2001 pending before :2: the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short the Act), the petitioner had filed an application praying for directions to the applicant-company (present respondent no.1) to lead evidence first and on considering the reply filed by the applicant-company and the averments of the respective parties, the said application came to be rejected by the Estate Officer on 28/1/2008. The said interlocutory order has been impugned in this petition. 4. The petitioner-tenant had submitted the said application before the Estate Officer on the basis of the judgment rendered by the Apex Court in the case of New India Assurance Company Ltd. vs. Nusli Neville Wadia and anr. [2007 (14) SCALE 556] [2007 (14) SCALE 556] [2007 (14) SCALE 556] and the subsequent judgment of this court (DB) in the case of Nandini J. Shah and anr. vs. Life Insurance Corporation of India and ors. rendered on 31/1/2008. The Estate Officer reproduced paras 25 to 28 and 30 of the Apex Court judgment in the case of Nusli Neville Wadia (Supra) and for the reasons recorded and reproduced as follows, he held that it was not necessary to direct the applicant-company to lead :3: evidence, discontinuing the evidence partly tendered by the First Opposite Party:- "In my opinion, the Opposite Party No.1 would not fall under the second category of tenants. It is not the case of the 1st Opposite Party that Opposite Party Nos.2 and 3 are not inducted into possession and no repairs or renovations are carried out. The defence of Opposite Party No.1 is that there is no breach of the terms and conditions of the lease, the induction of Opposite Party Nos.2 and 3 are with the knowledge and approval of the Applicant Company as against the claim for eviction on the grounds of breach of terms and conditions of tenancy, subletting and putting up unauthorised constructions at the application premises. Therefore, in my opinion the positive evidence that it was allowed to occupy the application premises and that renovation/repair were carried out with the consent of the Applicant Company are to be produced by the Opposite Party No.1 which are then to be rebutted by the Applicant Company. :4: Therefore, in the facts and circumstances of the case on hand, it would be for Opposite Party to lead evidence first." 5. The Estate Officer also noted that the Opposite Party No.1 i.e. the present petitioner has already led their evidence in chief examination and the witness has also been cross-examined by the other opponents i.e. 2 and 3 and the witness was also partly cross-examined by the Applicant-company earlier to the cross-examination by Opposite Party Nos.2 and 3 and now to be continued to be cross-examined and at this stage a change in the course of the proceeding would not be desirable. 6. Mr. Dada the learned Senior Counsel referred to the observations made by the Apex Court in Nusli Neville Wadia’s case (Supra) in paras 25 to 31 and the observations made by this court in the case of Nandini J. Shah (Supra) and submitted that the applicant-company is first required to lead oral evidence and the Opposite Party No.1 i.e. the present petitioner will be required to lead evidence in rebuttal, more so because the petitioner has denied :5: the allegations of breach of terms, conditions and covenants in the lease agreement as well as the allegation of non payment of rent and evading its contractual liability. It was further submitted and as noted by the Estate Officer, the Opposite Party Nos.2 and 3 were inducted in the application premises with the knowledge and consent of the applicant-company and prima facie documentary evidence in support of these contentions have also been placed before the trial court. Copies of certain correspondence between the applicant-company and the Opposite Party No.1 have also been placed before this court and as referred to in the Written Statement filed before the Estate Officer opposing the application for eviction. He, therefore, submitted that as per the law laid down by the Apex Court in Nusli Neville Wadia’s case (Supra), the present case falls in the second category of tenants and the mere fact that one witness of the petitioner-company was cross-examined by respondent nos.2 and 3 would not be a reason, not to direct the applicant-company to lead evidence first. 7. Mr. Sanglikar the learned counsel for the :6: applicant-company, on the other hand, while supporting the impugned order, pointed out that a similar application was filed by the petitioner and the same was dismissed by the Estate Officer on 15/5/2002. The said order was not challenged before any higher forum and, therefore, it received finality. On 10/8/2006 the petitioner had submitted one more application seeking directions to the applicant-company to continue the cross-examination of Shri T.D. Lal who was the witness of the petitioner and the said application was rejected on 15/9/2006. Writ Petition No. 139 of 2007 was filed before this court, on the Original Side, challenging the said order dated 15/9/2006. The Estate Officer, who had passed the order dated 15/9/2006 was, in the meanwhile, transferred and, therefore, the only grievance raised in Writ Petition No.139 of 2003 was regarding framing of issues. This court by its order dated 2/7/2007, while dismissing Writ Petition No.139 of 2007, observed that such issues are not necessary to be framed under the Act because Order-XIV of CPC is not applicable in such proceedings. Mr.Sanglikar pointed out that the petitioner filed the third application for the very same prayer or at least the second :7: application and, therefore, it was nothing but to review the order passed on 15/5/2002 and having regards to the provisions of Section 114 read with Order-47 of CPC, the second application filed and which has been now rejected was nothing but a review application, which was not maintainable. He also submitted that even in the interlocutory stages the doctrine of res judicata would be applicable and once an application seeking directions against the applicant-company to lead evidence first was rejected, the second application for the same relief was not maintainable and in support of these arguments Mr.Sanglikar has relied upon the following decisions:- (a) Satyadhyan Ghosal and ors. vs. Smt.Deorajin Debi and anr. [AIR 1960 SC 941]. (b) Ajit Kumar Rath vs. State of Orissa and ors. [AIR 2000 SC 85]. (c) Hanu Kumar Jain vs. Archana Kumar and anr. [(2005) 1 SCC 787]. 8. In paras 25 to 31 in the case of Nusli Neville Wadia (Supra), their Lordships stated as under:- :8: "25. Although Section 5 ex-facie does not make any classification in regard to the two classes of tenancies but the same is evident from the decisions rendered by this Court as also by the different High Courts. 26. The occupants of public premises may be trepassers, or might have breached the conditions of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite cessation of contract of service. 27. However, there may be another class of tenants who are required to be evicted not on any of the grounds mentioned hereinbefore but inter alia on the ground, which requires proof of the fairness and reasonableness on the part of the landlord which may include requirement for its own use and occupation. 28. Furthermore a proceeding may be initiated under Section 4 simplicitor. A :9: composite proceedings may also be initiated both under Sections 4 and 7 of the Act. In the latter category of cases the landlord would be required to establish not only the bona fide need on its part but also quantum of damages to which it may hold to be entitled to, in the event that an order is passed in favour of the establishment. 29. Admittedly in these cases two notices for eviction were issued. If the contention of Mr. Lekhi is correct, the first notice was not required to be withdrawn and the second notice was not required to be issued, specifying the grounds on which the eviction of the respondents were sought for. 30. When an application for eviction is based on such grounds, which require production of positive evidence on part of the landlord, in our opinion, it would be for it to adduce evidence first; more so in a composite application where the evidence is also required to be led on the quantum of :10: damages to be determined by the Estate Officer. 31. There may be a case where the tenant may take a defence which discloses no prima facie case in which event the Estate Officer may ask him to lead evidence. But there may be cases where the ground of eviction, having regard to the defence taken by the occupants may be required to be gone into. 8A. On referring to the above observations, this Court in the case of Nandini J. Shah (Supra) observed as under:- ". The judgment of the Division Bench of this court and its affirmation with additional grounds and principles by the Supreme Court clearly establishes that the order of the Estate Officer impugned in these writ petitions cannot stand on the scrutiny of law. Firstly, in these cases, the Corporation has to prove whether there has been any breach of conditions of lease in subletting the premises :11: without their authority or consent and user has been changed in violation of the terms of the contract. The present cases are not one where either the petitioners have admitted that they are unauthorised occupants or it can be so construed unequivocally from the record before the Estate Officer. The parties are in dispute with regard to various features and grounds on which the eviction of the parties is claimed. Primary onus lies upon the Corporation to establish its claim by leading documentary as well as the oral evidence. Of course, the onus would also lie upon the petitioners who claim that the petition should be dismissed. They will have to prove their own status in the premises in question and the fact that they have not committed any of the breaches referred to. The general rule of one who claims must prove is equally applicable to a proceeding before the Estate Officer with the exception that where unauthorised occupation is admitted or it is so undisputably evident from the record that there is no possibility of the authorised :12: occupancy of the petitioner. The Supreme Court in the above judgment has specifically observed that the Evidence Act may not be strictly applicable but its underlying principles would apply to the proceedings before the Estate Officer. Thus, the basic concept of one who claims must to prove would be applicable within its limitation. In the cases in hand, no such irresistible finding, prima facie, can be recorded that the petitioners (tenants/occupants) are unauthorised occupants or that the subletting is established." 9. The eviction application filed by the applicant-company makes out the following grounds:- i) the Opponent No.1 has committed breaches of terms, conditions and covenants given by it in the lease agreement; ii) even after expiry of lease period, the Opponent No.1 did not approach the Applicants for renewal of lease; :13: iii) the Opponent No.1 did not pay even the agreed rent and evaded its contractual liability; iv) the Opponent No.1 has in breach of covenants given in the lease agreement parted with possession of/inducted the Opponent Nos.2 and 3 in a part of the Application premises without the consent/permission of the Applicants and the Opponent No.1 is even recovering monetary compensation from the Opponent Nos.2 and 3. v) the Opponent No.1 has carried out illegal and unauthorised structural additions and alterations in the Application premises without the Applicants consent and these alterations have prejudicially affected the Application premises and even structural stability, causing serious prejudice to the Applicants. . In its Written Statement, th :14: petitioner-company has refuted all the above grounds by referring to specific documents like letters between the parties etc. For instance, on the point of non renewal of lease period, it has been pointed out that though the lease period had expired on 31st October, 1977 the Opponent No.1 continued to pay the rental charges of Rs.5,350/- per month to the applicant-company which, in turn, continued to accept the same without demur or protest and in the circumstances the lease period automatically stood renewed for a further period of five years i.e. upto 31/10/1982 as provided in the lease agreement dated 19/12/1968. After 31/10/1982 again the Opponent No.1 had approached the applicant-company for renewal of lease but without any success. Thus, it is not an undisputed case of non renewal of lease agreement and failure to pay the rental charges as set up by the Opponent No.1 before the Estate Officer. Similarly for the induction of Opponent Nos.2 and 3, it has been specifically averred in the Written Statement that they came to be inducted with the consent and approval of the applicant or its predecessor-company. Reference in this regard has been made to the letters dated 10/2/1970, 24/12/1971, 8/1/1972, 29/1/1972 :15: issued by the New Great Insurance Company of India Limited to the petitioner-company and the letter dated 28/4/1971 addressed jointly by M/s. Caltex (India) Limited and the present petitioner to the New Great Insurance Co. of India Ltd. and so also the letter dated 31/1/1972 addressed by the petitioner to the New Great Insurance Company of India Ltd. These letters, prima facie, support the contentions of the petitioner-company that the Opponent Nos.2 and 3 were not unauthorised occupants or they were not inducted without the consent and approval of the applicant-company. Hence, the above quoted observations of the Division Bench of this court in the case of Nandini J. Shah (Supra) are squarely applicable and consequently it would be necessary by following the very same principle reiterated by the Division Bench of this Court to direct the applicant-company to lead evidence first. However, the Estate Officer noted that the evidence of the Opponent No.1-company had already commenced and, therefore, at that stage a change in the course of proceeding would not be desirable. This view of the Estate Officer is not in keeping with the well settled principles of law in the facts of this case. :16: 10. In addition, let us examine the contention of Mr.Sanglikar that the second application was nothing short of a review application and the same was not maintainable. It is true that the order passed by the Estate Officer on 15/5/2002 was not challenged by the petitioner-company and it was submitted by Mr.Dada the learned Senior Counsel that the proceedings before the Estate Officer remained dormant for more than 3 years and subsequently the Estate Officer was transferred and, therefore, they did not proceed to challenge the said order and in the meanwhile the Supreme Court’s judgment in Nusli Neville Wadia’s case was pronounced. Admittedly, the first application was filed by the Opposite Party No.1 on 3/5/2002 and it was rejected on 15/5/2002. The Judgment in Nusli Neville Wadia’s case has been pronounced by the Supreme Court on 13/12/2007 but the Judgment of this Court which was a subject matter before the Supreme Court was rendered on 3/3/2006. Mr.R.P. Mondkar, who was the first witness of the Opposite Party No.1, died before his evidence could be completed and, therefore, the affidavit of Mr.T.D.Lal by way of examination-in-chief was filed on 12/4/2006. On 22/4/2006 the applicant-company had :17: started the cross-examination of Mr.T.D. Lal but without completing the said cross-examination the Estate Officer had directed the Advocate of the applicant-company to stop the cross-examination and called upon the Opponent Nos.2 and 3 to cross examine the said witness inspite of the protest by the Opposite Party No.1, as per the order dated 15/9/2006 and this order was challenged in Writ Petition No. 139 of 2007. Between 20/6/2003 and 19/1/2006 the Estate Officer did not hold any hearing. Opposite Party Nos.2 and 3 are supporting the Opposite Party No.1. Mr. Dada, therefore, rightly referred to the following observations made by the Apex Court in Ajit Kumar Rath’s case:- ".......The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercise only for correction of a patent error of law or fact which stares in :18: the face without any elaborate argument being needed for establishing it....." 11. In the instant case, the Estate Officer right from the beginning appears to have proceeded on the basis that the Opposite Parties had admitted or indisputably they were guilty of breach of the lease agreement and Opposite Party Nos.2 and 3 were inducted without the knowledge/consent of the applicant-company. If regards be had to the averments made in the Written Statement as well as the correspondence referred therein and the lease agreement dated 19/12/1968, the observations made by the Division Bench of this court in Nandini Shah’s case are squarely applicable and the earlier order passed by the Estate Officer on 15/5/2002 or the impugned order is a patent error staring in the face and, therefore, the Estate Officer had committed grave error in directing the petitioner-company to lead evidence first. If the impugned order is to be followed, the petitioner will lead evidence first, followed by the evidence of the applicant-company in rebuttal and thereafter the evidence of the petitioner-company in rebuttal for rebuttal and this :19: course of recording evidence cannot be accepted. The principle of one who claims must to prove as reiterated by the Division Bench in Nandini Shah’s case (Supra) is applicable in the instant case and is required to be followed. It is the applicant-company which has claimed that the Opposite Party No.1 has acted in breach of the lease agreement and has inducted Opposite Party Nos.2 and 3 without its consent/approval and the same allegations have been denied by the Opposite Parties and this denial is not a mere denial but it is supported by some correspondence between the parties and all these documents are required to be proved while recording the oral evidence. In any case, no prejudice is likely to be caused to the applicant-company if it is called upon to lead the evidence first. It should be primarily concerned to get the pending cases decided as per law and expeditiously. The learned counsel for the petitioner-company has submitted that it has to examine in all three witnesses and Mr.Lal is the first witness whose affidavit, by way of examination-in-chief, is on record. Admittedly, the proceedings under the Act as initiated by the Estate Officer are summary proceedings and they are required :20: to be concluded without any further delay. No progress was recorded for almost for three years i.e. from 2/6/2003 to 19/1/2006. It would be, therefore, necessary to direct the Estate Officer to decide the pending cases expeditiously and within a fixed period. 12. In the premises, this petition succeeds and the same is hereby allowed. The impugned interlocutory order is hereby quashed and set aside. The applicant-company is directed to commence its evidence first before the Estate Officer. The list of witnesses of the applicant-company shall be submitted within two weeks from today. The recording of evidence of the applicant-company shall be completed within four weeks from submission of the list of witnesses and if required the recording of evidence shall be continued on day to day basis. The Opposite Party No.1 will commence its evidence within one week from the completion of the evidence of the applicant-company and the evidence will start with the cross-examination of Shri Lal by the applicant-company. The recording of evidence of the Opposite Party No.1 shall be completed within four weeks from its commencement and if required on day to :21: day basis. The cases be heard and finally decided by the Estate Officer preferably before 31st July 2008. The respective parties have undertaken before this court to assist the Estate Officer to maintain the time schedule. 13. Rule is made absolute accordingly with no order as to costs. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)