Ramchandra Gulabrai Soneji And ... vs Mahomedbhai Kaderbhai And Ors.
2002 Latest Caselaw 422 Bom

JUDGMENT

J.G. Chitre, J.

1. The original petitioner M/s. Ramson has been represented initially by Shri Ramchandra Gulabrai Soneji and thereafter after his death by his legal representatives, namely, Geeta Ramchandra Soneji, Haresh Ramchandra Soneji, Chandra Ramchandra Soneji and Sadhana Ramchandra Soneji. They are assailing the judgment and order passed by the learned Additional Joint Judge of the Court of Small Causes in Ejectment Application No. 84/E of 1975 so also the judgment and order dated 7-12-83 passed by the Appellate Bench of the Court of Small Causes in Appeal No. 548 of 1982. The order passed by the Additional Joint Judge of the Court of Small Causes is Annexure H annexed to the petition. They further pray that the Ejectment Application No. 84/E of 1975 filed by Mahomedbhai Kaderbhai and other 8 persons be dismissed.

2. The premises in question, the shop No. 2 stood situated at 590 Pipe Road, Hanifabai Chawl, Kurla West, Bombay where one Kaderbhai Adamji, who averred that he was the tenant, was carrying on his business in the name and under the style of "Mohamedali Kaderbhai Nulwala & Co.". Kaderbhai Adamji died leaving behind his heirs who were the applicants in Ejectment application No. 84/E of 1975. As per the averments made by those applicants, after the death of said Mohamedali Kaderbhai, the applicants mentioned above continued the said business under the same name and style. However, according to their averments, the respondents i.e. the present petitioners "M/s. Ramson" requested them to give the said business for conducting and according to the averments of the petitioners, the applicants gave their business of plumbing to the respondents for conducting under an agreement executed on the same day. They also averred that in view of the agreement so executed, the premises in question were also given to the respondents for use and occupation. The applicants in that application averred that the monthly compensation was not paid by those respondents for about 44 months and, therefore, the applicants withdrew and revoked the licence granted to them for conducting the said business and occupation of the said shop by notice dated 28-11-1973. By the said notice they asked the said respondents to vacate the premises in question but those respondents did not comply with the said instruction and, therefore, the above named applicants were compelled to file the said ejectment application.

3. Those respondents opposed the said application by contending that they were the tenants of the applicants in respect of the premises in question and, therefore, they were not liable to be evicted. According to them, vacant possession of the premises in question was given to them and they started their business in the premises in question. As regards the agreement dated 13-6-1969, according to those respondents, they were given to understand that that would not be acted upon and the said agreement was executed simply in order to charge excessive rent which the respondents had agreed to pay. In the alternative, those respondents claimed that they were protected under the provisions of the Amending Act, 1973 brought into Bombay Rent Control Act and as such they were not liable to be evicted.

4. The learned Small Causes Judge framed the issue:

"Whether the respondents prove that they are the tenants of protected licensees of the applicants in respect of the application premises to which Rent Act applies and as such protected under Bombay Rent Act."

The respondents examined D.W. Ramchandra alone in rebuttal to the evidence of Mohamedali Kaderbhai and Phiroz Kalimuddin, the witnesses examined by the applicants. The said agreement document dated 13-6-1969 was produced on record along with some receipts which have been exhibited as Exhibits 4, 5 and 6 collectively.

5. The learned Small Cause Judge after appreciating the evidence on record held that the respondents were unlawful sub-tenants of those applicants and were not protected under the Bombay Rent Act. The said Ejectment Application was directed to be kept for further hearing on 25-11-1982 in C.R. No. 22.

6. The said judgment and order was assailed by the present petitioners by filing Appeal No. 548 of 1982. It was decided by the Bench of Small Causes Court, Bombay, on 7-12-1983. The learned Bench after hearing the submissions advanced by the litigating parties, dismissed the said appeal and the trial Court's findings on preliminary issue was upheld and that is mainly the subject matter of the present writ petition by which the petitioners are invoking the jurisdiction and powers of this Court in view of Articles 226 and 227 of the Constitution of India.

7. Shri Bhise, Counsel appearing for the petitioners, placed reliance on the judgment of the Supreme Court in the matter of Bhailal Hukamchand Shah and another v. Narandas Shamji (deceased) by his heirs and legal representatives and another, . Shri Bhise pointed out paragraph No. 6 of the said judgment in which the Supreme Court observed :-

"It is obvious on a bare perusal of these two provisions that the legislature intended to give protection to the licensees against exploitation by the licensors and/or the owners of the premises. It, therefore, provided that persons in occupation on 1st February, 1973 under a subsisting licence shall, for the purposes of the Act, be treated as statutory tenants and will receive protection as such under the Act. Section 15-A which begins with a non obstante clause and overrides any law or contract to the contrary lays down that where any person is in actual possession of the premises, or any part thereof which is not less than a room, as a licensee on 1st February, 1973, he shall be deemed to have become, for the purpose of the Act, the tenant of the landlord, in respect of such premises or part thereof, in his occupation. Section 14(2) provides that where the interest of a licensor/tenant of such premises is determined for any reason, the licensee, who by section 15-A is deemed to be a tenant, shall, subject to the provisions of the Act, be deemed to have become the tenant of the landlord, on the same terms and conditions to the extent they are consistent with the provisions of the Act."

8. For getting the protection of the observations of the Supreme Court on which Shri Bhise placed reliance for substantiating his submissions, the petitioners were obliged to make out a case necessitating the interference from this Court in view of Article 227 by exercising the jurisdiction of superintendence. For the purpose of ascertaining whether such interference is necessary in this case, it would be necessary to peruse the averments made by the petitioners in the said eviction petition, the evidence adduced by the petitioners in support of their contentions, the stances taken by them in developing the pleadings. It is necessary to point out that when Ramchandra Gulabrao Soneji was being examined on 3-9-1982 in the Court, the situation had arisen when the petitioners were required to go for option whether they were contesting the said lis by assuming the status as tenants or otherwise. Note put by the trial Judge shows that the respondents at that stage had given up the claim of tenancy and they decided to opt for their claim of the status as "deemed tenants". It is to be noted further that a document dated 23-6-1969 was attempted to be produced from the side of the petitioners which was objected to by the respondents. It is pertinent to note that the said document was not referred to in the pleadings. Furthermore, the trial Court was required to observe that there was no pleadings about the alleged receipts. The note put up while recording the evidence shows that the said document was neither proved and was not signed by any of the applicants of that eviction petition. The learned Additional Chief Judge while passing his judgment and order dated 8-10-1982 had considered all relevant facets of the matter and those facets of the matter were also considered by the Appellate Bench and the submissions advanced by the petitioners were dismissed by the said Appellate Bench after giving cogent reasons which were consistent with evidence on record.

9. For taking the advantage of the Amending Act and the provisions of section 14-A of section 15-A of the Amending Act of 1973, the petitioners were obliged to make out a case that way. They were also required to maintain the steady sequence of the pleadings. But they did not do it. Undisputedly, if a litigant wants to avail of the benefit of any provision of law, he has to make out a case which would be falling within the four corners of said enactment. Even after making out a case that way, which needs necessity of proving each and every document which is pivotal for giving strength to such stand or pleading, such litigant is obliged to prove such documents as contemplated by the Evidence Act. The Court would not give any consideration to the documents which are not legally proved because the courts are bound to follow the law. The courts would be reluctant to uphold the contentions of a litigant who follows that uncertain and deviating stand while putting forth the pleadings. For the purposes of obtaining a legal order from the Court or for the purposes of getting the legal protection such a litigant is bound to make out a case which would make the Court to pass such an order in his favour or to grant the protection provided by such legal provisions to him. If he fails to do so, he is bound to get the return of dismissal of his prayer on account of his failure to perform the legal obligations.

10. When a petitioner in the writ petition is making a prayer of a writ in view of Article 227 of the Constitution of India, he is obliged to make out a case which would necessitate the interference from the High Court in view of its jurisdiction of Superintendence. Unless he demonstrates that the judgment, order or act assailed by him is either perverse, inconsistent with the provisions of law, the High Court would not interfere in such judgment and order by exercising its jurisdiction and authority of superintendence as envisaged by Article 227 of the Constitution of India. In the present matter of writ petition, the petitioner has failed to do so and, therefore, this Court will have no alternative but to dismiss the writ petition, of course, with costs. Thus, the prayer for issuing the writ of certiorari stands dismissed so also the petition.

11. Parties to act on ordinary copy of this order duly authenticated by the Private Secretary of this Court.