Dismissed

Mr.Pramod Kapadan Puthiyaparambhath v. Ms. Shobha Sadashiv Joshi

Bombay HC18 Oct 2012CRA/596/2012

Case brief

AI extract

What is this about?

Civil Revision against a single judge dismissing a suit under Section 6 Specific Relief Act for forcible dispossession. The High Court held the trial court rightly dismissed as no forcible dispossession was established given voluntary surrender of possession and lack of corroboration.

What did the court decide?

Civil Revision Application dismissed as no case made out for interference under Section 114 CPC.

Mr.Pramod Kapadan Puthiyaparambhath Vs Ms. Shobha… — Specific Performance | Bombay HC (2012)

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cra-596.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.596 OF 2012

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Mr.Pramod Kapadan Puthiyapa Rambhata : Petitioner versus Ms.Shobha Sadashiv Joshi : Respondent.

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Mr. Purushottam G Chavan for the Petitioner. Mr. Sandeep S Jinsiwale for the Respondent.

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CORAM : R. M. SAVANT, J. DATE : 18^th October 2012

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P.C.

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1 The Revisionary Jurisdiction of this Court under Section 114 of the Code of Civil Procedure is invoked against the Order dated 7/2/2012 passed by the learned Civil Judge, Senior Division, Pune by which order the suit filed by the Applicant i.e Special Civil Suit No.441 of 2009 under Section 6 of the Specific Relief Act came to be dismissed.

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2 The said suit was filed by the Applicant herein, who is the original Plaintiff, on the basis that he has been dispossessed from the premises in question i.e. Flat No.14, 4^th Floor, situated at Spring Flower “A”, Priyadarshani Co-operative Housing Society, Panchavati, Pashan, Pune-8. It is the case of the Applicant that he had approached one estate agent Anju Shahane to get a flat

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on rental basis. Pursuant thereto, the said Anju Shahane had pointed out the flat owned by the Defendant which was to be given on rental basis as the Defendant, who is the Respondent herein, is residing in USA. It was the case of the Applicant/Plaintiff that the said estate agent informed him that the rent of the suit flat would be Rs.13,000/- per month and an amount of Rs.1,00,000/was required to be deposited by him within one month and that necessary agreement would have to be executed when the owner comes to Pune. It is the case of the Plaintiff that he informed his readyness and willingness, the said estate agent as well as the Defendant agreed to the terms and conditions. It is further the case of the Plaintiff that thereafter a draft of the leave and licence agreement was exchanged between the parties through e-mail. However, since there was some disagreement as regards certain clauses of the said leave and licence agreement, the said agreement was not executed. However it is the case of the Plaintiff that it was agreed that he would be a monthly tenant and was therefore handed over possession of the suit flat on 14/8/2007 along with parking place for his vehicle. It is the case of the Plaintiff that he was also handed over the papers for the gas connection and that he used to pay the electricity bills to the MSEB. It is the case of the Plaintiff that in the month of October 2008, he received a e-mail from the Defendant that she is coming to India and would want to stay in the suit flat for 6 to 8 weeks as there was no place for her to stay in Pune. It is the case of the Plaintiff that he acceded to the said request and allowed the Defendant to enter into the suit flat on the

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assurance that she would stay in the suit flat for a period of 6 to 8 weeks only. It is the case of the Plaintiff that the Defendant extended her stay on one pretext or the other much to the dislike of the Plaintiff. It is further the case of the Plaintiff that he was dispossessed on 7/2/2009 in respect of which a maidservant of the Plaintiff has made a complaint to the police as the Plaintiff was out of Pune. On his return on 12/2/2009, the Plaintiff went to the suit premises on 13/2/2009 and found that same are locked and the lock was changed. It is the case of the Plaintiff that though he requested the Defendant to hand over the key of the lock, the Defendant refused to do so, and therefore, it is his case that he has been dispossessed on 13/2/2009.

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3 The said case of the Plaintiff was dealt with by the Defendant in her Written Statement. The Defendant at the outset questioned the jurisdiction of the Civil Court on the ground that the relations between the parties were that of licensor and licensee. It was the case of the Defendant that she had never parted with possession of the suit premises exclusively to the Plaintiff, and had never allowed the Plaintiff to use and occupy the flat in question as monthly tenant. It was her case that the estate agent Anju Shahane requested her to allow the Plaintiff to stay in the suit premises on a temporary basis on payment of Rs.13,000/- per month, and allow him to stay as a paying guest. Accordingly, the Defendant allowed the Plaintiff to stay in the suit premises on a temporary basis as a paying guest. It is her case that she resides in the suit

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premises whenever she comes to India from USA, and though she had requested the Defendant to remove his bags and articles, he did not do so, and filed a false complaint to the police. The Defendant therefore claimed damages to the tune of Rs.10,000/- from the Plaintiff.

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4 It is in the background of the respective assertions of the parties that the Trial Court considered the issue as to whether the Plaintiff has been dispossessed without following the due process of law. The parties adduced evidence in respect of their respective cases. The Plaintiff adduced the evidence of his domestic servant whereas the Defendant examined herself. The Plaintiff relied upon the e-mails exchanged between the parties in support of his case that he was dispossessed without following due process of law.

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5 Significantly, though in the plaint it is the case of the Plaintiff that the factum of the said flat being rented was made known to him by the said estate agent Anju Shahane and that the said estate agent was the intermediary between the Plaintiff and the Defendant, the said estate agent Anju Shahane was not examined by the Plaintiff. It is also an undisputed position that there is no written agreement entered into between the parties. The leave and licence agreement remained inchoate and was never executed. Therefore, there is no document on record on the basis of which the Plaintiff can claim that he was put in possession of the flat in question. However, the fact remains

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that the Plaintiff was put in possession. The fact the Plaintiff voluntarily handed over possession to the Defendant on her return to India from USA for a period of 6 to 8 weeks cannot be disputed as it is the case of the Plaintiff in the plaint itself that he had handed over the possession to her. The question therefore which begs an answer is, as to whether the Plaintiff can be said to be forcibly dispossessed without following due process of law. The answer would obviously have to be in the negative. In so far as the case of the Plaintiff is concerned, there are too many loopholes viz. that there is no written agreement between the parties, that the capacity in which the Plaintiff was handed over possession is also not definite, as though the Plaintiff claims that he is a monthly tenant, it is the case of the Defendant that he was allowed to occupy the suit premises as a paying guest. Except the evidence of the domestic servant and the complaint filed to the police, there is no other evidence to corroborate the case of the Plaintiff that he has been forcibly dispossessed from the flat in question. In fact the theory of the Plaintiff that since the Defendant requested him to hand over the possession of the premises till she is in Pune militates against the case of the Plaintiff that he has been forcibly dispossessed.

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6 The sine quo non for a suit filed under Section 6 of the Specific Relief Act being forcible dispossession and since the same is conspicuously absent in the present case the order passed by the Trial Court refusing to

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exercise jurisdiction under Section 6 of the Specific Relief Act cannot be taken exception to. No case for interference under Section 114 of the Code of Civil Procedure is made out. The above Civil Revision Application is accordingly dismissed.

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[R.M.SAVANT, J]

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Mr.Pramod Kapadan Puthiyaparambhath v. Ms. Shobha Sadashiv Joshi

Case brief

What is this about?

What did the court decide?

Mr.Pramod Kapadan Puthiyaparambhath v. Ms. Shobha Sadashiv Joshi

Case brief

What is this about?

What did the court decide?

What the court decided

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