Dismissed

Shri Narayan Babu Pujari v. Smt. Nagamma Chennappa Naik and Others

Bombay HC13 Aug 2004SA/574/1988

Case brief

AI extract

What is this about?

This Second Appeal challenged the lower courts' decree for possession based on a hotel operating license. The Court upheld the findings that the Respondent was the landlord and the Appellant was a licensee, ruling that no perversity was shown under CPC Section 100 as the Appellant failed to adduce evidence of tenancy.

What did the court decide?

The Second Appeal was dismissed with no order as to costs.

Shri Narayan Babu Pujari Vs Smt. Nagamma… — Contract and Commercial Disputes | Bombay HC (2004)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 574 OF 1988.

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Shri Narayan Raju Pujari, Adult, Occupation: Business, residing at "Sunanda Restaurant" Kalwa, Tal.& Dist.Thane. .... Appellant. Versus. Shri Chennappa T. Naik, (since deceased through legal representatives) 1. Smt.Nagamma Chennappa Naik, Age: 50 years, Household duties. 2. Laxmikant Chennappa Naik, Age: 28 years, Occ.: Business. 3. Chandrakant Chennappa Naik, Age: 25 yrs., Occ.: Business. 4. Krishnakumar Chennappa Naik, Age: 22 years, Occ.: Nil. 5. Ku.Udaykumar Chennappa Naik, Age: 17 years. 6. Bhupendra Chennappa Naik, Age 20 years. 7. Kum.Lalita d/o.Chennappa Naik, Age: 14 years. Nos.5 to 7, minors through their G.A.L. mother and natural guardian Respondent No.1. All residing at Masjid Chawl, Near Mamta Cloth Stores, Station Road, Kalwa, Thane 605. .... Respondents.

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Ms.Nayana Thatte, Advocate holding for Shri R.B.Sule for the Appellant.

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None for the Respondents.

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CORAM : ABHAY S. OKA, J.

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DATED : 13th August, 2004.

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: 2 :

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ORAL JUDGMENT.

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1.	Heard	the	learned	Advocat	e app	earing f	or the
Appellant.	No	ne	appears for	t	he Re	spondents.	The
Second	Appeal	was	admitted on	6th	October	1992.	While
admitting	the		appeal this	Court	observed	that	whether
the	Appellant	was	given	the	hotel	business	for
conducting	or	on	licence	basis	is	the	substantial
question	of	law.	I have	heard	the	learned	Advocate

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appearing for the Appellant on the said substantial

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question of law.

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2.	With	a view to appreciate the submissions	mad	e by
the	learned	Advocate appearing for the Appe	llant,	it is
necessary	to	briefly refer the facts of the cas	e.	The
Appellant	is	the original Defendant and the		Respondent
is	the ori	ginal Plaintiff. The case of the		Respondent
is	that he	was the sole and absolute owner of	the	Shri
Krishna	Tea	House and was carrying on the	busines	s of
selling	tea	and other eatables. His case is	that	he is
the m	onthly	tenant in respect of the said	hotel	premises
and	he	has been paying rent in respect there	of to	the
landlord.	It	is the case of the Respondent	tha	t the
Appellant	ap	proached him in the year 1974	and	requested
him t	o allow	him to conduct the business of	Shri	Krishna
Tea	House	for a period of 11 months commenc	ing	from 1st
February	1974	. The Appellant was permitted to	use	the

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: 3 :

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utensils,	furniture	and fixtures in the		pre	mises	of Shri
Krishna	Tea	House for conducting the	b	us	iness	and the
Appellate	agreed	to pay a sum of Rs.	60/-		per	month by
way	of royalty	to the Respondent. Af	ter		expiry	of the
agreed	period,	the Appellant did		no	t	vacate and
therefore,	Advocate’s	notice was given	by		the	Respondent
to	the Ap	pellant revoking the licence	gra	nte	d	to the
Appellant	and	calling upon the Appellant		to	va	cate the
premises	and	to hand over possession	of		the	furniture,
fixtures	and the	fittings therein. As		th	e	Appellant did

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not vacate the said premises, the suit for possession

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was filed.

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3.		The	suit	was	res	isted	by the	Appel	lant	by	denying
that	the		Respondent	al	lowed	him	to	cond	uct	the	business.
He	also		denied	th	at he	has	taken	poss	ession	of	the
premises			from	the	Res	pondent	along	with	fur	niture	and
fixtures.			The	case	of	the	Appellant	is	that	he	is
running		a	tea	house	in	the	name and	style		of	Sunanda
Restaurant			since	1st	March	1976	which	is	of	his	sole
ownership.			The	case	of	the	Appellant	is	that	the	case

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made out by the Respondent in the plaint is completely

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false.

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4.	The	trial	Court	framed va	rious	issues.	The	trial
Court	held	that	the	Respondent	was	carrying	on	business
of	selling	tea and	oth	er eatables	in	the suit		premises

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: 4 :

¶24

prior	to 1974	and that the Respondent had	permitted	the
Appellant	to carry	on and conduct the said	business	with
effect	from	1st February 1974. Therefore,	the	trial
Court	proceeded	to pass a decree for p	ossession	and
arrears	of royalty	against the Appellant. An	appeal	was
preferred	by	the Appellant against the decree	of	the
trial	Court.	By the Judgment and Decree	dated	8th
September	1988,	the learned Addl. District	Judge	was
pleased to	dismiss the appeal b	y confirming the findings

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recorded by the trial Court.

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The Appellant has taken exception to the Judgments and Decrees of the Courts below by preferring the present Second Appeal.

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6.	The	l	earned Advocate	appearing for	the	A	ppellant
submitted	t	hat	the Courts	below have	committed	error	by
holding	that	there	was a	privity of	contract	between	the
Appellant	and	the	Respondent.	The f	urther	submission	of
the	learned	Adv	ocate was	that the Res	pondent	failed	to
prove	the	case	made out	in the plaint	that he	was	a
tenant	of	the	suit premises	and that h	e was	carrying	on
business	of	selli	ng tea	and eatables	in	the	suit
premises	any	tim	e prior to	1974. The	learned	A	dvocate
submitted	that	the	findings	recorded by	the	Courts	below
were	perv	erse	and therefore,	required t	o be	in	terfered

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with in the Second Appeal under section 100 of the Code

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: 5 :

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of Civil Procedure, 1908.

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7. I have considered the submis	sions ma	de by	the
learned Advocate for the Appellant.	The	Appellate	Court
has considered the oral and docu	mentary	evidence	on
record. The Appellate Court has	observed	that the	case
of the Appellant is that from the	year	1976 he	is
conducting the business of Sunanda	Restaurant	in	the
suit premises and he had taken the	land on	which	the
suit premises are situated from one	V.G.Patil,	who	was
the rent collector of landlady Kusu	m Madgao	nkar.	The
Appellate Court held that no evidence	was led	by	the
Appellant to substantiate his contention.	In	fact	the
Appellate Court held that it was not	at all	pleaded	by
the Appellant in his written statement	that	he had	taken
the land with suit premises from	the said	V.G.Patil	and
that he was the tenant of the said	V.G.Patil.	Though	no
such pleading was made in the	written	statement,	the
Appellate Court considered the case	made out	by	the

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Appellant and found that there was no evidence in

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support of the said contention.

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8.	As		against	this,	the	Appellate	Court found	oral
evidence	of	the	Respo	ndent	very	consiste	nt. He	produced
material	on		record	to	show	that	the said	V.G.Patil
consented		for	transferri	ng	the	lease in	respect of	the
property	in		favour	of	the	Respondent.	The	Respondent

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: 6 :

¶36

produced rent receipts evidencing payment of rent to the said V.G.Patil and the said rent receipts are for the period from 1974 to 1977.

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The learned trial Judge also found that the case made out by the Respondent is reliable and as against that the Appellant could not lead any evidence to show

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that he was inducted in the suit premises as a tenant either by the landlady or by her rent collector.

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10. If	the findi	ngs	of	both the Courts below	are
examined in	the	light	of	the pleadings of the	parties
and the evi	dence on	record,	the	view taken by the	Courts
below is	a possible	view.		All the admissible e	vidence
has been	considered	by	the	Courts below and	the
conclusions	are arrived	at.		Merely because some	other
view is	possible on	the	basi	s of the evidence on	record
is no	ground to	interfere	in	the Second Appeal	under
section 100	of the	Code	of	Civil Procedure, 1908.	No
perversity or	illegality	is		shown in the	findings
recorded by	both the	Courts	be	low. If the Appellant	was
claiming to	be the	tenant	in	respect of the premise	s in
which the	business	was	cond	ucted, it was for him	to
examine eth	er the	landlady	o	r her Rent Collector.	He
has not	adduced ev	idence	rega	rding the payment of	rent
to the	landlady.	The	Respo	ndent has led evidence	to

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show that he was paying the rent and therefore, the

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: 7 :

¶42

Courts below have accepted the case of the Respondent. 11. There is no reason to interfere in the Second Appeal under section 100 of the said Code. The Second Appeal is dismissed with no order as to costs. Judge.

Shri Narayan Babu Pujari v. Smt. Nagamma Chennappa Naik and Others

Case brief

What is this about?

What did the court decide?

Shri Narayan Babu Pujari v. Smt. Nagamma Chennappa Naik and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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