Dismissed

Virendra Kishorlal Mehta and Ors. v. Keshavsingh Dwarkadas Kapadia and Ors.

Bombay HC27 Aug 2013CRA/255/2013

Case brief

AI extract

What is this about?

The High Court of Judicature at Mumbai dismissed a civil revision application. The applicant challenged a Small Causes Court decree granting possession of a godown to a landlord based on unlawful occupation and unauthorized alterations. The High Court, relying on precedent, held that unlawful occupation and unlawful subletting are not mutually exclusive and upheld the lower courts' findings that n

What did the court decide?

The application was dismissed and the ad-interim order of 13.08.2013 was extended subject to filing a undertaking.

Virendra Kishorlal Mehta and Ors. Vs… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.255 OF 2013

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Virendra Kishorlal Mehta and others … Applicants Vs. Keshavsingh Dwarkadas Kapadia and others … Respondents

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Mr. S. D. Mogre with Mr. Amol Parwadkar for Applicants. Mr. P. K. Dhakephalkar, Senior Advocate i/b. Mr. R. S. Patil for the Respondent No.1.

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CORAM : R. G. KETKAR, J. DATE : 27^TH AUGUST, 2013

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P.C.:

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Heard Mr. Mogre, learned Counsel for applicants and Mr.

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Dhakephalkar, learned Senior Counsel for the Respondent No.1 at length.

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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

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permanent nature without the consent of the original plaintiff.

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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.

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In support of this Petition, Mr. Mogre raised following contentions:

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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;

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b. The Suit is instituted by the plaintiff against the heirs and legal

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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 .

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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;

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d. In any case, the Suit is barred by limitation in view of Article 66 of the Limitation Act, 1963.

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On the other hand, Mr. Dhakephalkar supported the impugned orders. He invited my attention to the written statement filed on behalf of

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the defendants and it is to the following effect:

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“Written statement of heirs and legal representatives of Manilal Virji Mehta defendant No.1(2), defendant No.2 and defendant No.3.”

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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).

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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,

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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.

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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.

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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.

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I have considered the rival submissions made by the learned Counsel

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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.

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As far as the ground of carrying out additions and alterations of

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permanent nature in the suit premises without the prior consent of the

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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.

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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.

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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:

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“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

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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.”

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After considering the evidence on record, the appellate Court held that the plaintiffs have established that ground as well.

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One of the contentions raised on behalf of defendant Nos.2 and 3 is

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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:

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“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.

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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.”

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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:

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“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.”

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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.

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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:

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(i) that they are in actual possession of the suit premises and nobody else is in possession;

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(ii) that they have so far neither created third party interests nor parted with possession of the suit premises; and

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(iii) that they will hereafter neither create third party interests nor part with the possession of the suit structure.

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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.

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Order accordingly.

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(R. G. KETKAR, J.)

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Minal Parab

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Virendra Kishorlal Mehta and Ors. v. Keshavsingh Dwarkadas Kapadia and Ors.

Case brief

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Virendra Kishorlal Mehta and Ors. v. Keshavsingh Dwarkadas Kapadia and Ors.

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