Dismissed

Arvind Vishnu Chitnis (Since Deceased) through Lrs. v. Nadira Shabir Ahmed Karolia and Others

Bombay HC23 Sept 2013CRA/426/2013

Case brief

AI extract

What is this about?

The High Court dismissed the civil revision application challenging an appellate order that decreed a tenant's suit against unlawful subletting. The High Court held the appellate court did not err in finding insufficient evidence of exclusive possession or employment relationship. An interim order for possession was extended for eight weeks pending an undertaking by applicants.

What did the court decide?

Extension of interim possession order by eight weeks, subject to applicants filing specific undertaking proving exclusive possession.

Arvind Vishnu Chitnis (Since Deceased) through Lrs. Vs Nadira… — Partition | Bombay HC (2013)

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Tapadia RR/B.17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 426 OF 2013

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Arvind Vishnu Chitnis,since deceased, 1(a) Mrs Sarika Sachin Shilotri and anr.

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..Applicants

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Nadira Shabir Ahmed Karolia and Ors

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.. Respondents

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Mr. Prabhakar K Shetty, Advocate for the Applicants. Mr. Shailesh B Pokarne, Advocate for Respondent nos 1 and 2.

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CORAM : R.G.KETKAR,J. DATE : 23/09/2013

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PC:

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Heard Mr. Prabhakat Shetty, learned counsel for the applicants and Mr. Shailesh Pokarne, learned counsel for respondent nos. 1 and 2 at length.

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By this application under Section 115 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') the original defendant no.1(a) and 1(b) have challenged the Judgment and decree dated 15.3.2013 passed by the Court of Small Causes at Bombay in Appeal No.431 of 2010. By that order, the Appellate Court has allowed the Appeal preferred by respondent nos 1 and 2, hereinafter referred to as 'plaintiffs' and has quashed and set aside the Judgment and decree dated 30.4.2010 passed by the

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learned Judge, Court Room no.21 of the Court of Small Causes at Mumbai in R.A.E Suit No.608/989 of 2005 and decreed the suit instituted by the plaintiffs. The applicants(hereinafter referred to as 'defendant nos 1(a) and 1(b) and respondent no.3 hereinafter referred to as 'defendant no.2, were directed to hand over vacant and peaceful possession of the suit premises to the plaintiffs within two months from the date of the order. The Appellate Court decreed the suit only on the ground of unlawful subletting by defendant no1(a) and 1(b) in favour of defendant no.2.

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In support of this Application, Mr. Shetty submitted that originally Arvind Vishnu Chitnis was a tenant in the suit premises. He died on 10.5.1975 leaving behind his mother Laxmibai V. Chitnis. However, the suit was instituted by the plaintiff in 2005 against a dead person, namely, Arvind V. Chitnis and defendant no.2. The summons returned with an endorsement that defendant no.1 Arvind Chitnis is dead. Shri Arvind died as a bachelor leaving behind his mother as his heir and legal representative. After the death of the original defendant Arvind Chitnis, said Laxmibai continued the business in the suit premises with the help of Kishor Vishnu Chitnis, father of defendant no.1(a) and 1(b). The Shop and Establishment Licence in respect of the suit premises was transferred in the name of Laxmibai. Some time in the year 1986, Laxmibai changed the

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business from General Stores business to a business of repairing electronic items under the name and style of Quartz Electronics. Defendant no.2 has been engaged since 1986 to do the work of repairing of electronic items on job work basis. Laxmibai expired on 11.7.1992. After the death of Laxmibai, Kishor Vishnu Chitnis, brother of Arvind and father of defendant nos 1(a) and 1(b) inherited the tenancy. He expired on 20.9.1998. After his death, defendant no.1(a) & 1(b) inherited the tenancy of the suit premises. The Shop and Establishment Licence was issued in the year 1968 in the name of Arvind and after his death it was transferred in the name of Laxmibai. During her life time, she got the said licence transferred in favour of defendant no. 1(a). Some time in the year 1991, defendant no.1(a) transferred the licence in favour of defendant no.1(b), being his sister, viz. Aparna Kishor Chitnis, who after marriage is known as Sarika Sachin Shilotri.

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Mr. Shetty also invited my attention to the Written Statement wherein it is the specific case of defendant nos 1(a) and 1(b) that defendant no. 2 is their employee and is doing the job work of repairing electronic items. Mr Shetty invited my attention to the trial Court's Judgment and in particular paragraph 10 onwards. The learned trial Judge considered the Shop and Establishment Licences at Exhibits 43(1) to 43(4) and

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observed that these documents clearly indicate exclusive possession of the tenant. The learned trial Judge recorded a finding that though in his affidavit plaintiff had made a statement that heirs of defendant no.1 had inducted defendant no.2 in the suit premises, that was not specifically pleaded in the plaint nor any specific date or period was mentioned as to when defendant no.2 was inducted as a sub tenant. The evidence cannot be considered as to who inducted defendant no.2 as a sub tenant and on what point of time. After considering the licence and in particular at Exhibit 43(4) which mentions number of employee working in the Shop and in coloumn of 'number of employee', it is mentioned as one employee working in the shop of defendant nos 1(a) and 1(b). The learned trial Judge, therefore, held that the said document clearly supports the claim of defendant no.1(a) and 1(b) that defendant no.2 is working as an employee along with them.

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Mr. Shetty further submitted that the learned trial Judge also considered photographs at Exhibits 46 and 47 and observed in paragraph 12 that though the defendant could not explain as to how name of Utron Enterprises is shown in the photographs, there is no pleading to that effect made by the plaintiff in the Plaint or even by way of amendment. It was also not suggested as to the said Utron Enterprises or any other entity whose name

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appears in the photographs has any concern with the suit premises and is in occupation of the suit premises. The plaintiff did not bring any evidence on record to show that defendant nos 1(a) and 1(b) have parted with possession of the suit premises exclusively to defendant no.2 and defendant no.2 has concern with the said entity.

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As against this, Mr. Shetty submitted that by cryptic order the Appellate Court allowed the appeal. He submitted that in the entire Judgment the Appellate Court did not consider the licences produced on record by defendant nos 1(a) and 1(b). He invited my attention to paragraph 18 onwards of the impugned order and submitted that the Appellate Court being a last fact finding Court, ought to have considered the entire evidence on record. Failure to consider the licences at Exhibits 43(1) to 43(4) has resulted in miscarriage of justice. He,therefore, submitted that the application requires consideration.

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On the other hand, Mr Pokarne supported the impugned order. He submitted that defendant no.2, though served, did not enter the witness box. Defendant no.1(a) is a Diploma holder in Chemical Engineering. Defendant nos 1(a) and 1(b) have not produced any evidence on record to substantiate that they are actually carrying on business in the suit premises. They have also not produced any material to show relationship of employer

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and employee between them and defendant no.2. He submitted that the Appellate Court is entitled to reappreciate the entire evidence that was before the Court and take a different view in the matter. He, therefore, submitted that no case is made out for invocation of powers under section 115 of C.P.C. 8. With the assistance of the learned counsel appearing for the parties, I have gone through the material on record. Mr. Shetty heavily relied upon the licences that have been issued from the year 1986 to 2011 . In the earlier licences there was no column of number of employees and for the first time in the licence at Exhibit 43(4) which is for the period 2008 – 2011 there is a column of 'name of employee'. It is mentioned therein as one, namely one employee is working in the establishment. The Appellate Court has considered the various circumstances in paragraph 24 of the impugned order. The Appellate Court recorded a categorical finding that defendant nos 1(a) and 1(b) have not brought any material on record to show relationship of employer and employee between them and defendant no.2. This is to be appreciated in the backdrop of the case made out by defendant no.1(a) in the evidence that defendant no.2 is working in the suit premises since 1986. As noted earlier, the suit is instituted in the year 2005. From 1986 onwards, no material is produced by defendant nos 1(a) and 1(b) to substantiate that

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defendant no.2 is their employee. The Appellate Court further observed that the defendants have not produced any document on record to show the nature of actual business being carried out in the suit premises. The Appellate Court also observed that defendant no.1(a) could not explain in his cross-examination the existence of a board of third party on the suit premises. The Appellate Court in paragraph 21 also observed that if at all defendant no.1(a) is receiving electronic items for repairing from customers, he ought to have produced receipts issued to the customers. However, no evidence in that behalf was produced by the defendants. The Appellate Court, therefore, had drawn adverse inference against the defendants.

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After hearing the learned counsel appearing for the parties and after perusing the material on record and in particular the licenses at Exhibits 43(1) to 43(4), I do not find that the Appellate Court committed any error in passing the decree. In so far as the licence at Exhibit 43(4) is concerned, admittedly it was issued during the pendency of the suit for the period from 2008 to 2011. Except that licence, no material is produced by the defendants to substantiate their plea that defendant no.2 was their employee doing job work. It is also material to note that defendant no.2 did not enter into witness box who could have thrown light as to in what capacity he is in the suit premises.

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Considering the totality of the circumstances, I do not find that the Appellate Court has committed any error in decreeing the suit. The Appellate Court being a last fact finding Court is entitled to re-appreciate the entire evidence. Mr Shetty was not in a position to demonstrate that the findings recorded by the Appellate Court are perverse being based on no evidence or that on the basis of evidence on record, no reasonable person would have come to that conclusion. In the light of the aforesaid discussion, no case is made out for invocation of powers under section 115 of C.P.C. In the result, the Application fails and the same is dismissed.

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At this stage, Mr Shetty orally applies for continuation of the ad-interim order dated 27.6.2013 for a period of eight weeks from today. Mr Shetty further states that within two weeks from today, the applicants will file usuaul undertaking in this Court after giving advance copy to other side incorporating therein (i) that the applicants are in possession of the suit premises and nobody else is in possession; (ii) that they have neither created any third party interests nor parted with possession; and (iii) that they will hereafter neither create third party interests nor part with possession of the suit premises.

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Subject to filing the aforesaid undertaking in this Court in the aforesaid terms within two weeks from today, the ad-interim

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order passed by this Court on 27.6.2013 shall remain in force for a period of eight weeks from today. Order accordingly.

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(R.G.KETKAR, J.)

Arvind Vishnu Chitnis (Since Deceased) through Lrs. v. Nadira Shabir Ahmed Karolia and Others

Case brief

What is this about?

What did the court decide?

Arvind Vishnu Chitnis (Since Deceased) through Lrs. v. Nadira Shabir Ahmed Karolia and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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