Ronnie Lawrence Fernandes vs Hoshbanoo Aspi Irani (Since Deceased) through Her Legal Heir Ardeshir Irani and Anr. — Bombay HC (2025) — LawSathi Research

Ronnie Lawrence Fernandes vs Hoshbanoo Aspi Irani (Since Deceased) through Her Legal Heir Ardeshir Irani and Anr. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Burden of proof: whether Plaintiffs were required to personally prove the alleged induction of Defendant's father into the suit premises as a security guard (gratuitous licensee), or whether, once Plaintiffs admitted Defendant's presence as mere permissive use while he pleaded tenancy, the burden shifted entirely to the Defendant to prove his possession as a tenant. +1 more

Court's answer

The matter involved only a factual enquiry already conducted by the Trial and Appellate Courts, not involving any substantial question of law for entertaining the Second Appeal.

Ratio / Principle

Once Plaintiffs admitted the presence of the Defendant in the suit premises by branding it as mere permissive use, and the Defendant pleaded that he is a tenant of the premises, the burden completely shifted on the Defendant to prove his valid possession as a tenant thereof.

Key takeaways

In the present case, the Defendant's failure to lead any evidence to prove his tenancy claim was clearly fatal to his defence.ratio¶19

Detailed headnote1 paragraphs

Bombay High Court, Civil Appellate Jurisdiction (Sandeep V. Marne, J., 10 February 2025): Second Appeal No. 599 of 2024 filed by the Defendant, Ronnie Lawrence Fernandes, against the Principal District Judge, Thane's order dated 15 April 2024 dismissing Regular Civil Appeal No. 115 of 2011 and thereby confirming the decree dated 30 April 2011 passed by the 3rd Joint Civil Judge, Senior Division, Thane in Regular Civil Suit No. 470 of 2005. Plaintiffs' case was that Defendant's father was inducted into the suit premises as a gratuitous licensee in connection with his service as a security guard; the Defendant pleaded protected tenancy in his written statement but led no evidence, the Plaintiffs having examined only their constituted attorney. Held: once Plaintiffs admitted the Defendant's presence as 'a mere permissive use' and he pleaded tenancy, the burden completely shifted to the Defendant to prove valid possession as tenant; his failure to lead evidence on the tenancy claim was clearly fatal; the matter involved only a factual enquiry with no substantial question of law. Second Appeal dismissed; Interim Application No. 13175 of 2024 did not survive and stood disposed of.

Sonali Mane

37-SA-599-2024.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 599 OF 2024 IN REGULAR CIVIL APPEAL NO. 115 OF 2011 IN REGULAR CIVIL SUIT NO. 470 OF 2005 WITH INTERIM APPLICATION NO. 13175 OF 2024 IN SECOND APPEAL NO. 599 OF 2024

Ronnie Lawrence Fernandes … Appellant

Versus

Hoshbanoo Aspi Irani (Decd.) Thr.

Her Legal Heir Ardeshir Irani And Anr … Respondents

Mr. M. P. Vashi, Senior Advocate for the Appellant. Mr. Hasan Sayed i/b R.A. Shaikh for Respondent No.2.

CORAM : SANDEEP V. MARNE, J. DATE : 10 FEBRUARY 2025.

P.C. :

The Second Appeal challenges judgment and order dated 15 April 2024 passed by the Principal District Judge, Thane dismissing Regular Civil Appeal No. 115 of 2011 and confirming the decree dated 30 April 2011 passed by the 3^rd Joint Civil Judge, Senior Division, Thane decreeing Plaintiff's Regular Civil Suit No. 470 of 2005.

I have heard Mr. Vashi, the learned senior advocate appearing for the Appellant/Defendant and Mr. Sayed, the learned counsel appearing for Respondent No.2/Plaintiff.

___Page No.1 of 2 ___ 10 February 2025

MANE SONALI DILIP Digitally signed byMANE SONALI DILIP Date: 2025.02.13 11:14:50 +0530

Sonali Mane

37-SA-599-2024.docx

After having considered the submissions canvassed by the learned counsel appearing for parties, it is seen that Plaintiffs approached the Trial Court with a case that Defendant’s father was inducted in the suit premises as a gratuitous licensee in connection with his service as a security guard. Plaintiffs examined constituted attorney before the Trial Court. The Defendant failed to lead evidence. The suit was accordingly decreed in absence of any evidence on the part of Defendant, who had raised defence in the written statement that he was a protected tenant in respect of the suit premises. However no evidence was led by the Defendant to prove his claim of tenancy.

Mr. Vashi would submit that the primary burden was on the Plaintiffs to prove their case and Plaintiffs ought to have personally led evidence with regard to alleged induction of Defendant’s father into the suit premises as security guard. In my view, once Plaintiffs admitted the presence of Defendant in the suit premises by branding it as a mere permissive use and when the Defendant pleaded the case that he is tenant in respect of the suit premises, the burden completely shifted on the Defendant to prove his valid possession as a tenant thereof. In the present case, therefore, Defendant’s failure to lead evidence to prove his tenancy claim was clearly fatal. A factual enquiry is conducted by the Trial and the Appellate Courts not involving any substantial question of law for entertaining the present Appeal. The Appeal is accordingly dismissed .

In view of rejection of Second Appeal, Interim Application does not survive and the same stands disposed of.

[SANDEEP V. MARNE, J.]

___Page No.2 of 2 ___ 10 February 2025