The Suit is instituted by the plaintiff against the heirs and legal
representatives, if any, of i) Jamnadas Jinabai Popat and (ii) Manilal Virji
Mehta. The Suit instituted against unknown heirs and legal representatives
itself, is not maintainable. In support of this submission, he invited my
attention to Order 22, Rule 4 and 4-A of the C.P.C. He relied upon the
decision of the learned Single Judge of this Court in the case of Donald
Gonsalves Vs. Penha de Franca Youth Club, 2002 (3) ALL MR 814.
On the other hand, Mr. Dhakephalkar supported the impugned
orders. He invited my attention to the written statement filed on behalf of
the defendants and it is to the following effect:
“Written statement of heirs and legal representatives of Manilal
Virji Mehta defendant No.1(2), defendant No.2 and defendant
No.3.”
6. He also invited my attention to the affidavit of Virendra Kishorlal
Mehta, partner of M/s. National Traders. The affidavit of examination-inchief
was filed on behalf of the heirs of Manilal Virji Mehta and on behalf
of defendant Nos.2 and 3. He submitted that Jamnadas Jinabai Popat and
Manilal Virji Mehta were joint tenants in respect of the suit premises. They
had formed a partnership firm namely J. M. Electricals. On 19.07.1975,
Jamnadas Popat retired and renounced his rights as joint tenant from the
suit premises. On 30.07.1975, Manilal Mehta started a new firm by name
National Traders with Virendra Mehta. In May 1977, Manilal Mehta also
retired from National Traders and Virendra Mehta and his brothers
continued the business. On 01.04.1981, Virendra Mehta and one Rajul
opened new firm by name Alka Industries (defendant No.3).
7. Mr. Dhakephalkar also invited my attention to the paragraph 3 of the
affidavit of Virendra Mehta wherein he deposed that Jamnadas Popat retired
from the partnership in 1975 (there is a typographical error to the effect that
Manilal Virji Mehta retired from the partnership in 1975). The deed of
retirement dated 19.07.1975 executed by and between Jamnadas Popat,
Bharatkumar Jamndas Popat as continuing partners and Manilal Virji Mehta
as retiring partner was produced on record. In other words, Mr.
Dhakephalkar submitted that from 19.07.1975, Jamnadas retired from the
partnership and also renounced his rights as a joint tenant of the suit
premises. He, therefore, submitted that the submission that the Suit was
instituted against the unknown heirs and legal representatives of Jamnadas
Popat and Manilal Mehta does not merit any consideration.
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.255 OF 2013
Virendra Kishorlal Mehta and others Vs. Keshavsingh Dwarkadas Kapadia and others
CORAM : R. G. KETKAR, J.
DATE : 27TH AUGUST, 2013
Heard Mr. Mogre, learned Counsel for applicants and Mr.
Dhakephalkar, learned Senior Counsel for the Respondent No.1 at length.
2. By this Petition under Section 115 of the Code of Civil Procedure,
1908 (for short 'C.P.C.'), the original defendants have challenged the
judgment and decree dated 23.11.2007 passed by the learned Judge, Court
Room No.7 of the Court of Small Causes, Mumbai in R.A.E. Suit
No.1271/2484 of 1997 as also the judgment and decree dated 05.02.2013
passed by the learned Appellate Bench of Court of Small Causes in Appeal
No.136 of 2008. By these orders, the Courts below decreed the Suit
instituted by the respondent No.1 on two grounds namely, (i) petitioners'
unlawful occupation and (ii) carrying out additions and alterations of
permanent nature without the consent of the original plaintiff.
3. Respondent No.1, hereinafter referred to as the plaintiff, has
instituted Suit against the petitioners, hereinafter referred to as the
defendants on the ground that (i) they are in unlawful occupation of
godown No.5 on the ground floor, 51 Vithaldas Road, Lohar Chawl,
Mumbai-2 (for short 'suit premises'); and (ii) that the defendants have made
change of user and that they have carried out additions and alterations of
permanent nature without the consent of the plaintiff.
4. In support of this Petition, Mr. Mogre raised following contentions:
a. Though the plaintiff has alleged that the defendant Nos.2 and 3 are in
unlawful occupation of the suit premises, the Courts below have passed
decree against them on the ground of unlawful subletting. In other words,
he submitted that unlawful occupation cannot be equated with unlawful
subletting. He invited my attention to the assertions made in paragraphs 4
and 5 of the plaint and submitted that the defendants were not given
opportunity to deal with the case made out by the plaintiff. In support of
his submissions, he relied upon the judgment in the case of C.C.YI Vs. Smt.
Janakidevi, 2001 (4) Mh.L.J. 114, and in particular, paragraph 33 thereof;
b. The Suit is instituted by the plaintiff against the heirs and legal
representatives, if any, of i) Jamnadas Jinabai Popat and (ii) Manilal Virji
Mehta. The Suit instituted against unknown heirs and legal representatives
itself, is not maintainable. In support of this submission, he invited my
attention to Order 22, Rule 4 and 4-A of the C.P.C. He relied upon the
decision of the learned Single Judge of this Court in the case of Donald
Gonsalves Vs. Penha de Franca Youth Club, 2002 (3) ALL MR 814.
c. The Court of Small Causes being a Special Court has no jurisdiction
to entertain and try the Suit. In support of this submission, he relied upon
the decision of this Court in the case of Rafiuddin Nuruddin Vs. Abduyl
Karim, 2005(4) Mh.L.J. 646, and in particular head-note, to contend that
the relationship between the plaintiff and defendant Nos.2 and 3 as that of
the landlord and tenant was not established. The relief of possession qua
these defendants is, therefore, outside the scope of jurisdiction of the Court
of Small Causes;
d. In any case, the Suit is barred by limitation in view of Article 66 of
the Limitation Act, 1963.
5. On the other hand, Mr. Dhakephalkar supported the impugned
orders. He invited my attention to the written statement filed on behalf of
the defendants and it is to the following effect:
“Written statement of heirs and legal representatives of Manilal
Virji Mehta defendant No.1(2), defendant No.2 and defendant
No.3.”
6. He also invited my attention to the affidavit of Virendra Kishorlal
Mehta, partner of M/s. National Traders. The affidavit of examination-inchief
was filed on behalf of the heirs of Manilal Virji Mehta and on behalf
of defendant Nos.2 and 3. He submitted that Jamnadas Jinabai Popat and
Manilal Virji Mehta were joint tenants in respect of the suit premises. They
had formed a partnership firm namely J. M. Electricals. On 19.07.1975,
Jamnadas Popat retired and renounced his rights as joint tenant from the
suit premises. On 30.07.1975, Manilal Mehta started a new firm by name
National Traders with Virendra Mehta. In May 1977, Manilal Mehta also
retired from National Traders and Virendra Mehta and his brothers
continued the business. On 01.04.1981, Virendra Mehta and one Rajul
opened new firm by name Alka Industries (defendant No.3).
7. Mr. Dhakephalkar also invited my attention to the paragraph 3 of the
affidavit of Virendra Mehta wherein he deposed that Jamnadas Popat retired
from the partnership in 1975 (there is a typographical error to the effect that
Manilal Virji Mehta retired from the partnership in 1975). The deed of
retirement dated 19.07.1975 executed by and between Jamnadas Popat,
Bharatkumar Jamndas Popat as continuing partners and Manilal Virji Mehta
as retiring partner was produced on record. In other words, Mr.
Dhakephalkar submitted that from 19.07.1975, Jamnadas retired from the
partnership and also renounced his rights as a joint tenant of the suit
premises. He, therefore, submitted that the submission that the Suit was
instituted against the unknown heirs and legal representatives of Jamnadas
Popat and Manilal Mehta does not merit any consideration.
8. Insofar as the ground of jurisdiction is concerned, Mr. Dhakephalkar
submitted that no such plea was taken by defendant Nos.2 and 3 in the
written statement, and consequently, no issue was framed on this aspect.
9. As far as ground of limitation based on Article 66 of the Limitation
Act is concerned, he submitted that the Courts below have concurrently
held that the Suit was not barred by limitation. The Courts below have
given cogent reasons. He also invited my attention to the receipts at
exhibit-14 dated 01.03.1980 and exhibit-15 dated 01.04.1980. The said
receipts were issued by Late Sheth Gordhandas Khimji Charity Trust in the
name of Jamnadas Jinabhai and Manilal Virji Mehta to whom the suit
premises have been let out.
10. I have considered the rival submissions made by the learned Counsel
appearing for the parties. I have also perused the material on record.
Insofar as unlawful occupation is concerned, the trial Court has held that
the plaintiffs have proved that defendant Nos.2 and 3 are in unlawful
occupation of the suit premises being inducted therein without the plaintiffs'
consent. The trial Court also held that the defendants have carried out
additions and alterations of permanent nature without the consent of the
landlord. Issue as regards unlawful occupation is considered by the learned
trial Judge in paragraph 30 onwards. In paragraph 41, the trial Court held
that according to the defendants' case, Manilal Mehta entered into
partnership from 26.07.1975 and said Manilal retired from partnership on
21.04.1977. However, this fact was not brought to the notice of the
plaintiffs. The learned trial Judge, therefore, held that it cannot be said that
the plaintiffs were having knowledge about the breach of condition of
subletting premises. The learned trial Judge further held that it cannot be
said that the plaintiffs having knowledge of that fact, the Suit instituted in
the year 1997 is barred by limitation. After considering the material on
record, the learned trial Judge ultimately held that defendant Nos.2 and 3
are the unlawful occupants of the suit premises, being inducted without the
consent of the plaintiffs.
11. As far as the ground of carrying out additions and alterations of
permanent nature in the suit premises without the prior consent of the
plaintiffs in writing is concerned, the learned trial Judge has considered this
issue from paragraph 44 to 57 and after appreciating the evidence on
record, held that the plaintiffs have established that the defendants have
carried out additions and alterations of permanent nature without the
consent of the plaintiffs.
12. Defendant Nos.2 and 3 carried matter in Appeal before the Appellate
Bench of Small Causes Court. The appellate Court considered the issue of
additions and alterations of permanent nature from paragraph 10 onwards
and held that the mezzanine floor and the pillars supporting the same have
become a part of permanent structure. Considering this aspect, the
appellate Court answered the issue in favour of the plaintiffs.
13. As far as the unlawful occupation is concerned, the appellate Court
considered this aspect from paragraph 17 onwards. In paragraph 22, the
appellate Court observed as under:
“22. The case which is put forth by defendant Nos.2 & 3 is
that they were carrying on business on the date of death of Jamndas
along with him. Therefore, in view of Sec.5(11)(c) of the Bombay
rent Act, they become tenants of the suit premises. We find no force in
this argument for two reasons. Jamnadas himself retired from the
partnership in the year 1978. Therefore, at the time of his death
Jamndas himself was not carrying out business of J. M. Electricals in
the suit premises. There is no question arises of carrying out business
of J. M. Electricals by defendant Nos.2 & 3 along with Jamnadas at
the time of his death. The next reason is that Jamnadas had obtained
tenancy rights in his personal capacity along with Manilal. Virendra
and Sunil are claiming to be the legal heirs of Manilal. However,
exact relationship is not quoted. Secondly, Manilal himself retired
from the partnership in the year 1972 i.e. even before that of
retirement of Jamnadas. In this view also by no stretch of imagination
it can be said that tenancy rights of Jamnadas and Manilal are
inherited by defendants.”
14. After considering the evidence on record, the appellate Court held
that the plaintiffs have established that ground as well.
15. One of the contentions raised on behalf of defendant Nos.2 and 3 is
that the Suit is barred by limitation. That was considered by the learned
trial Judge as also the appellate Court. The appellate Court held that the
relevant facts were not pleaded by the defendants. In paragraphs 27 and 28,
it was observed as under:
“27. Before going into that question it is important to note that
no where in the written statement defendants have taken a plea
of bar of limitation. Even they have not stated anything in
respect of partnership and retirement of Jamnadas and Manilal.
Written Statement is absolutely silent on that part and there is
only denial.
28. Limitation is a question of fact as well as law. Learned
Advocate for appellants relied upon Sec.3 of the Limitation Act
and submitted that a plea of limitation can be considered by the
Court even without pleadings. However, this contention would
be correct if the relevant facts were pleaded by the defendants.
If prima-facie on the contentions of the plaint itself it appears
that suit is barred by limitation, then we can say that Court suomoto
is entitled to decide the bar of limitation irrespective of
defence to that effect. Here contentions in the plaint are not
showing that it is barred by limitation. Therefore, it has become
necessary for the defendants to plead those facts which show that
there is a bar of limitation to the present suit. The defendants
have not pleaded anything in that respect.”
16. Thus, after appreciating the evidence on record, the Courts below
have concurrently held that the plaintiffs have established the ground of
carrying out additions and alterations of permanent nature without the
consent of the plaintiffs in writing as also that of unlawful subletting. Mr.
Mogre submitted that the case made out by the plaintiffs is of unlawful
occupation and Courts below decreed the Suit on the ground of unlawful
subletting. The unlawful occupation cannot be equated with the unlawful
subletting. I do not find any merit in this submission. On the other hand,
judgment in the case of C.C.YI (supra), and in particular paragraph 33,
supports the submissions made by Mr. Dhakephalkar. Paragraph 33 reads
as under:
“33. So far as the ground of unlawful subletting is concerned, the
word sublet is of wider amplitude and takes in the letting even to
licensees or their occupation at the instance of the tenant either for
some consideration like rent or premium and if such induction is
without the written permission of the landlord, the requirements of
section 13(1)(e) of the Act will be fully answered.”
17. In the light of the aforesaid discussion, no case is made out for
invocation of powers under Section 115 of C.P.C. Mr. Mogre was not in a
position to demonstrate that the findings recorded by the Courts below are
perverse being based on no evidence or that on the basis of evidence on
record, no reasonable person could have come to that conclusion. In view
thereof, Civil Revision Application fails and the same is dismissed.
18. At this stage, Mr. Mogre orally applies for continuation of the adinterim
order passed by this Court on 13.08.2013 for a period of eight
weeks from today. He states that within two weeks from today, the
applicants and all the adult family members of defendant Nos.2 and 3 will
file undertaking in this Court, incorporating therein that:
(i) that they are in actual possession of the suit premises and
nobody else is in possession;
(ii) that they have so far neither created third party interests nor
parted with possession of the suit premises; and
(iii) that they will hereafter neither create third party interests nor
part with the possession of the suit structure.
19. Subject to filing undertaking within two weeks from today in the
aforesaid terms, the ad-interim order passed by this Court on 13.08.2013
shall remain in force for the period of eight weeks from today.
20. Order accordingly.
(R. G. KETKAR, J.)
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