CRA. 46-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 46 OF 2011 Bali Ram Dukhi ...Applicant Vs. Deninners Pvt. Ltd. ...Respondents *** Mr. M. P. Vashi, Sr. counsel i/b Ms. M. P. Vashi & Associates, for the Applicant. Mr. H.S.S. Murthy i/b Ms. P. M. Bhansali, for the Respondents. *** CORAM: V. M. KANADE J. DATE : JUNE 20, 2011 P.C. 1. Heard the learned senior counsel appearing for the applicant and the learned counsel appearing for the respondents. Applicant is the original defendant. Respondent is the original plaintiff. For the sake of convenience, parties shall be referred to as the ‘plaintiff’ and the ‘defendant’. 2. Brief facts are as under- . Plaintiff had filed a suit for eviction of the defendant on the CRA. 46-11 - 2 - ground that the licensee has committed breach of agreement by encroaching upon the property of the plaintiff, plaintiff has terminated the agreement of leave and license, which was entered into by the plaintiff and the defendant on 1-9-1967 and the period of license was expired and that the defendant had neglected to pay compensation as per leave and license agreement and had also committed breach of the agreement by extending the area of the suit premises by 17’ x 10’ without the knowledge and consent of the plaintiff. In view of this, a notice was issued by the plaintiff through his advocate dated 12th April 1989 and the said agreement was revoked and defendant was called upon to hand over quiet and peaceful possession of the suit premises under Section 41 of the Presidency of the Small Causes Court Act. 3. Defendant filed the written-statement and in the written- statement it was contended that plot of land on which structure was constructed, was declared as a slum under the Slum Improvement Act which declaration was notified in the Gazette dated 28th April, 1988. Secondly, it was contended that defendant is a tenant in respect of the suit premises and he was in use and occupation of the same since 1962. It was contended that defendant was in possession of the land admeasuring 52’ x 53’ since prior to 1962 and thereafter manager of the CRA. 46-11 - 3 - plaintiff Mr. Jain approached him and took his signature on some agreement which turned out to be an agreement of ‘leave and license’. It is contended that he had paid the rent regularly till 1960 and no receipts were issued by the plaintiff. The trial Court decreed the suit and held that defendant was a licensee of the suit premises, by taking into consideration this admission in the written-statement and other facts and circumstances which are brought on record. This judgment and decree was confirmed by the lower appellate court. 4. The learned counsel appearing on behalf of the defendant submitted that suit was liable to be dismissed since description of the suit premises was not mentioned in the plaint. He invited my attention to the plaint, more particularly paragraph 1 of the plaint. He submitted that even Schedule was not given at the end of the plaint, for the purpose of giving particulars regarding exact location of the premises. In support of the submissions, he relied on judgment of Punjab and Haryana High Court, in the case of – Paramjit Singh & Anr., Petitioner vs. Smt. Balwinder Kaur, Respondent 1. He submitted that even as required under Order VII, Rule 3 of the C.P.C., the sketch map was also not annexed to the plaint. Reliance is also placed on the judgment of the Karnataka High 1 AIR 1985 Punjab and Haryana, 255. CRA. 46-11 - 4 - Court, in the case of – Ambanna, Appellant vs. Ghanteappa, Respondent 1 . It is further contended that contents of the said ‘leave and license’ agreement were not proved since witness examined was a power of attorney holder and he was not aware of the facts though it transpired that the agreement was executed, and therefore, both the courts below had clearly erred in relying on his evidence in respect of ‘leave and license’ agreement. 5. On the other hand, it is submitted by the learned counsel appearing on behalf of the plaintiff that description of the property was mentioned in paragraph 3 of the plaint. In paragraph 1, 3 of the ‘leave and license’ agreement specific details regarding situation of the property has been mentioned. It is submitted that both the courts below had given a finding to that effect, and therefore, this court while exercising the jurisdiction under Section 115 of the Code of Civil Procedure, could not interfere with the said finding of fact. Secondly, it is submitted that defendant had not disputed the execution of the ‘leave & license’ agreement, which is evident from the evidence on record. It is, therefore, submitted that the revision application is liable to be dismissed. 6. In my view, there is much substance in the submissions 1 AIR 1999 Karnataka 421 CRA. 46-11 - 5 - made by the learned counsel for the plaintiff and the submissions made by the learned counsel for the applicant cannot be accepted. The plaintiff in the plaint has mentioned in paragraph 1 as under- “1. The Plaintiffs are a company incorporated under the Indian Companies Act having their office shown in the title hereinabove. The Defendant is the licencee of the Plaintiffs in respect of the premises being an open space admeasuring 25’ x 36’ situate in the compound of the plaintiff’s property at Jogeshwari (West), Bombay 400 102. The said premises is hereinafter referred as suit premises.” 7. Similarly, in paragraph 3(a) of the plaint reads as under- “3. The Plaintiffs submit that the relevant clauses of the said agreement for the purposes of suit are as hereinafter recited :- (a) The Licensors have given leave and licence to the Licencee to occupy the plot of land admeasuring 25’ x 36’ north side of their land in their property known as Dettinners Compound at the corner of Ghodbunder Road and Kabristan Road, at Jogeshwari, as their Licencee and with their permission and leave and licence to occupy the said plot of land for a period of 11 months only from 1st October 1962 (Clause 1);” 8. The ‘leave and license’ agreement also gives description as CRA. 46-11 - 6 - under- “WHEREAS the second party requires some accommodation temporarily to have some open plot or place to keep vehicles temporarily, and has therefore approached the first party, who have got open land in their premises at Ghodbunder Road and Kabristan road, at Jogeshwari, known as Detinners compound, and requested the first Party to grant him permission and Leave and Licence in respect of open land admeasuring 25 ft. x 36 ft. on the north side of their plot, open land temporarily for a period of 11 months from 1st October, 1965.” 9. Apart from mentioning the premises in Clause (1) of the agreement, in the recitals also the description of the property has been mentioned. Plaintiff is seeking possession of the premises 25’ x 36’, which is the land mentioned in the ‘leave and license’ agreement and not the other area which has been encroached. It, therefore, cannot be said that description of the property has not been mentioned. In the judgment in the case of Paramjit Singh (supra) on which reliance is placed by the learned counsel for the defendant, in paragraph 2 thereof, it is observed as under- “2. On the face of it the frame of the suit is vague and indefinite. The suit pertains not only to moveable but also immoveable property of which no particulars have been set CRA. 46-11 - 7 - out to enable it to be identified. Besides seeking a declaration that the plaintiff was the owner of the moveable property specified in the annexure to the plaint (which was valued at Rs.950/-), a further declaration was sought that the plaintiff was also the owner in possession of all other properties left by Bakhtawar Singh. In the alternative, a permanent injunction was asked for to restrain the defendants from interfering with the aforesaid properties or claiming any right therein. It is pertinent to note that the “other properties left by Bakhtawar Singh” were situated in places beyond the local jurisdiction of the trial Court, namely : in village Pahrwala, Goraya and Dhubewal. This was so mentioned in the plaint itself.” 10. In the said case, therefore, the exact location of the premises was not mentioned at all in the plaint “since it was only mentioned that the plaintiff was also the owner in possession of all the other properties left by Bakhtawar Singh.” Further it was mentioned that these properties were situated in places beyond the jurisdiction of the trial Court in village Pahrwala, Goraya and Dhubewal. The learned Single Judge, relying on Section 16 of the Code of Civil Procedure has further observed that “apart from the court having no jurisdiction, the description of the property being not given”. The learned Single Judge further observed in paragraph 5 as under- CRA. 46-11 - 8 - “5. Furnishing of sufficient particulars of material facts, which include the relief sought, is the legitimate duty of the opponent. The court is indeed duty bound to lend its assistance to ensure that the opposite party knows the case it has to meet, as also the nature and scope of the relief claimed. Denial here can lead to failure of justice which, undoubtedly, cannot be countenanced.” 11. Under these circumstances, the court held that High Court in such circumstances, for want of further and better particulars in respect of description of suit property could interfere in revision and set aside the order. The ratio of the said judgment, in my view, will not apply to the facts of the present case, since, in my view, description of the property has been properly mentioned. 12. Similarly, reliance is also placed on the judgment of the Karnataka High Court, in the case of Ambanna (supra), in paragraph 3 as under- “3. In paragraph 3 of the plaint it shows that out of Sy. No. 258, 6 acres and 7 guntas as item No. 1 and item No.3 out of Sy. No. 260 measuring 7 guntas and given out of Sy. No. 261, 59 acres and 9 guntas. What is the total extent of survey numbers and what are the boundaries of the property are not given. Therefore, it is not possible to identify the property leaving alone granting a decree in respect of a definite CRA. 46-11 - 9 - property.” Under these circumstances, the learned Single Judge came to the conclusion that it was not possible to identify the property and therefore, it is observed that plaint was liable to be rejected. In my view, the facts of the present case being different, ratio of the said judgment will not apply to the facts of the present case. 13. So far as question of power of attorney holder is concerned, the fact remains that in the written-statement the defendant has not denied execution of the ‘leave and license’ agreement and the plaintiff having proved the said agreement, plaintiff was entitled to seek an order of eviction after the demand notice was duly served on the defendant after expiry of ‘leave and license’ period. Under these circumstances, it is not possible to interfere with the order passed by trial court and which order has been confirmed by the lower appellate court. Civil Revision Application is, therefore, dismissed. Three months time is given to the applicant to vacate the suit premises. [ V. M. KANADE J.]