Insofar as the contention of the present applicant that the suit
against the unknown legal heirs is not maintainable is concerned, the
present case will have to be considered from the peculiarity of the facts
appearing in the matter. Undisputedly, from the material on record, it
could be seen that the said Graham was initially inducted as licensee in
the suit premises for a period of 14 months. The said Graham is British
national. In this circumstance, it would not have been possible for the
Plaintiff to find the whereabouts of the said Graham. In that view of the
matter, the reliance placed by the Courts below on the judgment of the
learned Single Judge of this Court in the case of Kapadia( supra) is well
merited. Insofar as the reliance on the judgment of the learned Single
Judge of this Court in the case of Shrikant (supra) is concerned, the facts
are totally different. In the said case the Defendants were not served by
an ordinary mode of service but were served directly by paper
publication. The learned Trial Judge had decreed the suit by declaring
that the Plaintiffs were owners in possession of the suit premises but also
directed for deletion of the name of the Defendant No.2. In this
premise, the observations made by the learned Single Judge of this Court
will have to be considered. The facts as appearing in the present case
are more than near the facts in the case which which was for
consideration in the case of Kapadia(supra). In that view of the matter,
the contention in that regard in my considered view is without
substance.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 330 OF 2013
Yusuf Hussein Vs. Mrs Kalawanti G. Mehtani(deceased)
through LRS Mr.Bhagwandas P. Gandhi
CORAM : B. R. GAVAI, J.
DATE : APRIL 25, 2013.
1 The above Civil Revision Application challenges the concurrent
orders passed by the learned Small Causes Court in L. E. Suit No.35/38
of 1995 dated 19.10.2010. thereby decreeing the suit filed by the
Respondents and by the judgment and order dated 21.02.2013 passed
by the Division Bench of the Small Causes Court, Mumbai thereby
dismissing the Appeal filed by the present Applicant and further
directing enquiry of mesne profits under Order XX Rule 12 of the Code
of Civil Procedure, 1908 from the date of decree of the learned Trial
Court till delivery of possession of the suit premises.
2 It is the case of the Plaintiff that the original Plaintiff was a
member of a Cooperative Housing Society Ltd. namely Colaba
Cosmopolitan Housing Society Ltd, Mumbai. The suit flat is situated in
Colaba, Mumbai. It is the case of the Plaintiffs that on 30th November,
1983 the original Plaintiff through her son Mr. Shamdas Mehtani who
was holding Power of Attorney at the relevant time, had granted leave
and license in respect of the suit premises to Graham Tullet for a period
of 14 months from 30.11.1983 to 31.01.1985. The Plaintiff in this
respect rely on the declaration/writing dated 30th November, 1983
executed by the Defendant No.1 before the Notary.
3 According to the original Plaintiff, the Defendant, upon expiry of
license, has failed to handover peaceful possession. Thereafter a suit
came to be filed being L. E. Suit No.35/38 of 1995. In the said suit, the
original licensee was impleaded as Defendant No.1 and the Defendant
No.2 was impleaded as legal heir of the Defendant No.1 subsequently
the present Applicant was impleaded as the Defendant No.3 at his
request. Counter suit also came to be filed by the present Applicant for
declaration of his status as tenant contending therein that the deceased
Shamdas had inducted him as tenant of the suit premises.
4 Suit of the Respondent came to be decreed whereas the suit of the
present Applicant was dismissed. Being aggrieved thereby, the Appeals
were preferred by the present Applicant. Both the Appeals are
dismissed. In addition, the leaned Division Bench of the Small Causes
Court,Mumbai also held that the Plaintiff was entitled to enquiry of
mesne profits from the date of decree of the learned Trial Court. The
learned Appellate Court by order dated 21.02.2013 determined the
amount at the rate of Rs.45,000/ as mesne profits per month from the
date of decree of the learned Trial Court till delivery of the possession of
the suit premises.
5 Being aggrieved thereby, the present application.
6 Shri Dani, the learned counsel appearing on behalf of the
Applicant has made following submissions in support of the present
Revision Application:
(I) that the suit against the unknown legal heirs was not tenable.
(ii) the Plaintiff has failed to show in what capacity the present
applicant was impleaded as Defendant No.3 and as such the suit
as against the present applicant was not tenable.
(iii) if the present applicant is considered to be tenant, then the
suit on the basis of the expiry of license was not tenable.
(iv) in the event the applicant is considered to be encroacher or
tresspasser, then the suit before the Small Causes Court will not
be tenable and the Plaintiff will be required to file a Regular
Civil Suit.
(v) the enquiry of mesne profit could not have been granted in the
absence of prayer in that regard in the plaint.
7 The learned counsel relies on the judgment of the learned Single
Judge of this Court in the case of Shrikant S. Volvoikar v/s Narendra P.
Chatim and Ors reported in 2010 (4) Bom.C. R. 336
8 Shri Mandlik, the learned counsel appearing on behalf of the
Respondents, on the contrary, submits that the Courts below have
concurrently held that the Defendant No.3 was not tenant, and as such,
no interference could be warranted in the said finding. The learned
counsel submits that from the facts it is clear that the Defendant No.3
was illegally inducted by the Defendant No.1, and as such he had no
right to continue in the suit premises after expiry of the license period.
The learned counsel relies on the judgment of the learned Single Judge
of this Court in the case of V. B. Kapadia v/s Nirmala in Civil Revision
Application No.5423 of 1961 decided on 22.01.1962.
9 From the perusal of the record, it would reveal that the Courts
below have concurrently negated the contentions of the present
applicant that he was inducted as tenant by the power of attorney
holder of the original Plaintiff. The Courts below after appreciating the
evidence on record have held that the suit premises was given to
Graham Tullet on leave and license basis. In this respect, the learned
Courts below have relied on the evidence of Chandrumal Mehtani and
the writing executed by the said Graham Tullet which was below
Exhibit50. In the said evidence, he has categorically stated that the said
Graham Tullet after expiry of the license period had illegally put the
present applicant in possession of suit premises without the knowledge
and consent of the original Plaintiff. In this respect, it will be relevant to
refer to the evidence of the present Applicant. The present Applicant has
totally denied regarding the license being granted in favour of the
Defendant No.1. His case is that he was inducted as tenant in November
1985 by Shamdas who was Constituted Attorney and son of the original
owner Mrs Kalawanti Mehtani. It is further his case that the rent was
determined at Rs.1,000/ It is his case that he has paid rent up to
December 1994 to Shamdas and after his death the original Plaintiff as
well as the legal representative refused to accept the same.
10 From the material on record, it could be seen that on the basis of
the electricity bill, telephone bill, ration card etc the present Applicant
has attempted to establish his rights.
11 The learned Courts below have also taken into consideration the
evidence of Rajendra Salian, who was the Chairman of the Colaba
Cosmopolitan Housing Society Ltd. In his evidence, he has stated that
the present Applicant was called to discuss as to in what capacity he was
occupying the suit premises. The learned Courts below have held that
the present Applicant had failed to produce rent receipt or any other
document to establish privity of contract between the power of attorney
of the original Plaintiff and himself.
12 It is further to be noted that the Courts below were justified in
rejecting the evidence of the present Applicant, inasmuch as it appears
that the present Applicant has no regard for truth. Whereas he has
deposed on oath that he was paying rent to Shamdas, the Power of
Attorney holder till December 1994. It has come on record that the said
Shamdas has died way back on 19th February, 1987.
13 The learned Courts below therefore on appreciation of the
evidence have come to the conclusion that the present Applicant had
utterly failed to establish that he was tenant of the suit premises. The
Courts below have also held that the suit filed by the present applicant
for declaration of tenancy was also barred by limitation. The Courts
below found that in the suit filed by the original landlord, an application
was made by the present Applicant for impleading him as party
Defendant on 11th October, 1995, and as such, the suit filed by him
ought to have been filed within a period of three years thereafter. It was
therefore found that the suit filed by the present applicant on 29th
March, 2001 was beyond limitation.
14 Insofar as the contention of the present applicant that the suit
against the unknown legal heirs is not maintainable is concerned, the
present case will have to be considered from the peculiarity of the facts
appearing in the matter. Undisputedly, from the material on record, it
could be seen that the said Graham was initially inducted as licensee in
the suit premises for a period of 14 months. The said Graham is British
national. In this circumstance, it would not have been possible for the
Plaintiff to find the whereabouts of the said Graham. In that view of the
matter, the reliance placed by the Courts below on the judgment of the
learned Single Judge of this Court in the case of Kapadia( supra) is well
merited. Insofar as the reliance on the judgment of the learned Single
Judge of this Court in the case of Shrikant (supra) is concerned, the facts
are totally different. In the said case the Defendants were not served by
an ordinary mode of service but were served directly by paper
publication. The learned Trial Judge had decreed the suit by declaring
that the Plaintiffs were owners in possession of the suit premises but also
directed for deletion of the name of the Defendant No.2. In this
premise, the observations made by the learned Single Judge of this Court
will have to be considered. The facts as appearing in the present case
are more than near the facts in the case which which was for
consideration in the case of Kapadia(supra). In that view of the matter,
the contention in that regard in my considered view is without
substance.
15 Insofar as the next contention of Shri Dani, regarding the
Plaintiff's not stating in what capacity the Defendant No.3 is impleaded
as party is concerned, it is to be noted that the Defendant No.3 was not
impleaded by the Plaintiff on her own volition, but he was subsequently
added as the Defendant No.3 on an application made by the present
applicant. In that view of the matter, the contention in that regard
would be without substance.
16 Insofar as the next contention regarding the suit on the ground of
expiry of license being not maintainable is concerned, it can be seen that
both the Courts below have concurrently held that the Applicant has
failed to establish that he was tenant of the suit premises. As can be seen
from the plaint, the suit was filed originally against Shri Graham and his
unknown legal heirs for recovery of possession on the ground of expiry
of license period. As such the contention in that regard is also without
substance.
17 Insofar as the contention of Shri Dani, that suit against the present
Applicant being not maintainable before the Small Causes Court if the
Applicant is held to be tresspasser or encroacher is concerned, it is the
present Applicant who had got impleaded himself as party Defendant in
the suit filed by the PlaintiffRespondent. Had the present Applicant not
got impleaded as Defendant the learned Small Causes Court would have
proceeded on the basis of the averments made in the plaint seeking
eviction on the ground of expiry of license. The consequence of such
decree being passed or not would have followed. However, the present
Applicant having himself impleaded as party Defendant, cannot be
permitted to be approbate or reprobate.
18 In that view of the matter, I do not find that a case is made out for
interference insofar as the order of eviction is concerned.
19 However, insofar as the order passed by the learned Appellate
Court directing any enquiry for determining the mesne profit is
concerned, I find that the learned Judge of the Trial Court has not rightly
applied the law as laid down in Gopal Krishna Pillai and Ors v/s
Meenakshi Aval and Ors reported in AIR 1967 SC 155.
20 However, since Shri Mandlik, the learned counsel appearing on
behalf of the Respondents tenant has graciously stated that the Plaintiff
is not interested in claiming compensation or mesne profits, it is not
necessary to go into that aspect of the matter.
21 The Civil Revision Application is, therefore, partly allowed.
22 The order of eviction is maintained.
23 Insofar as the order of enquiry as to mesne profits and subsequent
order determining monthly compensation are concerned, the same are
set aside with the consent of the RespondentPlaintiff.
24 At this stage, Shri Dani, the learned counsel appearing for the
Applicant prays for stay of the decree so as to enable the Applicant to
approach the Apex Court. In view of the fact that the the suit is of the
year 1995 and in view of the concurrent findings that the Applicant was
residing in the premises without any authority and that too on his own
admission without paying any pai from the year 1995, I am not inclined
to consider the prayer as made. Rejected.
( B. R. GAVAI, J.)
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