Appellate Judge had no justification at all to overturn or reverse the
Judgement and decree passed by the trial Court as merely
payment of electricity bills by the occupant cannot create status of
tenancy or licensee protected under the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR
SECOND APPEAL NO.395 OF 2002
Vinayak s/o. Daulat Watkar V Jeevan s/o. Ganpat Puri
CORAM : A.P.BHANGALE, J.
DATED : 27th January, 2014.
Citation;2014(4) MHLJ 280 Bom
1. This Second Appeal impugns Judgement and Order
dated 10-07-2002 passed in Regular Civil Appeal No.601 of 1997
decided by 2nd Additional District Judge, Nagpur. The Second
Appeal was admitted on 29-09-2003 on the substantial questions
of law stated as under-
A) Whether the Lower Appellate Court is correct in
holding that :
1. The suit transaction is lease without any documentary
evidence on record?
2. Appellant did not take serious action for two years and
hence court came to conclusion that it is circumstance, to
infer about lease created?
3. The respondent was paying the electric charges for
two years and hence the respondent is not gratuitous
licensor and hence lower appellate court comes to the
conclusion that transaction between appellant and
respondent is lease?
4. The transaction is between the appellant and
respondent is lease and therefore the small causes court
alone has jurisdiction to decide the matter?
2. The First Appeal arose from the decree of ejectment
dated 23-10-1997 passed by the 22nd Civil Judge (J.D.), Nagpur in
Regular Civil Suit no. 2419 of 1992.
3. For reasons to follow my answers are in the negative for
all questions afore- stated.
4. The facts, briefly stated, are that plaintiff Vinayak
Daulat Watkar found eligible was allotted the tenement no.E-72
at Shanti Nagar Colony in the year 1974 on rental basis of Rs 35/-
per month from Nagpur Housing and Area Development Board
under its 'Economically Weaker Section Scheme'. The defendant,
who was tenant of Dutta Kurve of the adjoining premises,
requested the plaintiff to accommodate him temporarily as
daughter of his landlord was to marry in April, 1989 and his
landlord required the premises in his occupation for to solemnise
the marriage of his daughter. The defendant did not vacate, as
promised after marriage of his landlord’s daughter and continued
as unauthorised occupant of the suit tenement despite notice dated
23-08-1992 for to vacate the same. The defendant had resisted the
suit by pleading tenancy. The trial court found that the plaintiff was
entitled to the relief of possession as lawful owner of the suit
tenement who had temporarily allowed the defendant as a
licensee. The plea of tenancy by the defendant was rejected by the
trial Court.
5) Heard submissions at the bar. Perused the evidence led
on record.
6) The fact that the Plaintiff was allotted the suit tenement
by the Nagpur Housing and Area Development Board under its
'Economically Weaker Section Scheme' was not in dispute. The
evidence revealed that the only son of the plaintiff had died on 30-
08-1988 and he went to stay with his father-in–law. In the
meantime, the defendant was accommodated on his request
temporarily for a period of one month as marriage of daughter of
the defendant’s landlord was to be solemnised. In the facts and
circumstances of the case, the defendant’s failure to vacate the suit
tenement despite notice to vacate the suit tenement changed the
status of the defendant from a bare licensee into a trespasser.
There was no any proof of acceptance of rent by the plaintiff to
corroborate defence plea of oral tenancy. The self –interested bald
plea of oral tenancy by the defendant, in the absence of any valid
document to support it, could not have been entertained by the
Civil Court. After receiving notice to quit, any prudent person acting
bona fidely, seeking protection as a statutory tenant or a protected
licensee, would never fight shy as, being interested to protect
possession, he would approach a competent Civil Court in a good
faith to prove his status as a tenant. Though the notice to quit was
issued on the premise that the defendant is a trespasser and
bound to vacate the suit tenement, no such rational step was taken
by the defendant for the reasons best known to the defendant. In
my opinion, therefore, the trial Court had rightly decreed the suit
with damages as well as correctly ordered inquiry into mesne
profits, as claimed in the suit after in-depth examination of the
evidence led before it. The first Appellate Court had totally
misdirected itself to overturn the decree on the ground that the Civil
Court had no jurisdiction to pass a decree. The important legal
position is ignored by the learned first Appellate Judge.
7. It is a settled legal position as explained by Hon’ble
Supreme Court in Raizada Topandas Vs. Gorakhram reported
in AIR 1964 SC 1348 that the plaintiff chooses his forum and files
his suit. If he establishes the correctness of his facts, he will get his
relief from the forum chosen: If he frames his suit in a manner not
warranted by the facts, and goes for his relief to a Court which
cannot grant him relief on the true facts, he will have his suit
dismissed. Then there will be no question of returning the plaint for
presentation to the proper Court, for the plaint, as framed, would
not justify the other kind of Court to grant him the relief. If it is
found, on a trial on the merits so far as this issue of jurisdiction
goes, that the facts alleged by the plaintiff are not true and the facts
alleged by the defendants are true, and that the case is not
cognizable by the Court, there will be two kinds of orders to be
passed. If the jurisdiction is only one relating to territorial limits or
pecuniary limits, the plaint will be ordered to be returned for
presentation to the proper Court. If, on the other hand, it is found
that, having regard to the nature of the suit, it is not cognizable by
the class of Court to which the Court belongs, the plaintiff's suit will
have to be dismissed in its entirety.
8) The defendant cannot force the plaintiff to go to a forum
where the plaintiff cannot go on the basis of his averments in the
plaint that the defendant is a trespasser who has refused to vacate
despite notice to vacate. Jurisdiction of the Court has to be
determined on the basis of averments in the plaint, taking them to
be true and not on the basis of the written statement. Ordinary Civil
Court has jurisdiction irrespective of the defence taken in the
written statement. Thus, the plaintiff alleging that the defendant is
a trespasser can approach an ordinary Civil Court with a suit to
recover possession. If plaintiff succeeds by proving his case as
stated in the plaint, irrespective of the contention pleaded in written
statement, the suit of the plaintiff is bound to be decreed but, of
course, in such a case, if the defendant comes out with a
contention in defence, which is found reliable and acceptable, the
plaintiff may be non-suited by an order of dismissal of the suit.
Jurisdiction of the ordinary Civil Court to entertain the Civil suit is
not barred in such a case. In the present case, the defendant was
unable to prove that he was a tenant or a licensee. Hence there
was no any illegality or irrationality in the Judgement and Order of
the trial court, granting decree in favour of the plaintiff. The first
Appellate Judge had no justification at all to overturn or reverse the
Judgement and decree passed by the trial Court as merely
payment of electricity bills by the occupant cannot create status of
tenancy or licensee protected under the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947.
9) In the result, therefore, the Second Appeal succeeds.
The impugned Judgement and decree is set aside and the decree
passed by the trial Court is restored. The appeal is allowed
accordingly.
10) Mr.S.P.Kshirsagar, learned Counsel for the
respondents, at this stage, prays for grant of stay as to possession
for a period of eight weeks as he intends to challenge this
Judgment and Order before the Apex Court. Hence, the decree
limited to possession shall remain stayed until expiry of eight
weeks from today.
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