Smt. Saraswati Ganapat Mane vs Sharadchandra Nilkanth ...
2002 Latest Caselaw 434 Bom

JUDGMENT

J.G. Chitre, J.

1. This appeal has been admitted on the following substantial questions of law indicated by paragraph Nos. 34, 36 and 43 of the appeal memo. Those points can be enumerated as mentioned hereinunder.

(1) Whether the trial Court had the jurisdiction to entertain the counter claim filed by the Respondent (original defendant) in view of provisions of Order 8 Rule 6?

(2) Whether the approach adopted by the 1st appellate Court in appreciating the evidence was erroneous?

2. Few facts need to be mentioned for unfolding the controversy. The appellant happens to be the owner of a tenement in Ambernath which was rented out to Dharmasi Morarji Chemical Company Ltd., as tenant and in turn was allotted to respondent to stay. There was marriage of the son of landlady in the month of February 1988 and, therefore, according to the averments made by the landlady, the present appellant, the respondent handed over the vacant possession of the suit tenement to her on 5.2.1988 and not on 3.1.1988 as averred by the appellant (original plaintiff) along with surrendering the tenancy. The respondent admitted that the possession of the said tenement was handed over to the landlady for accommodating her need in respect of the marriage of her son. He denied that he ever surrendered the tenancy. On the contrary, he averred that he had lodged a complaint in the police station in respect of the said unlawful ousting of him from the suit tenement. The evidence on record shows tat in context wit the said complaint the son of landlady was arrested and panchanama was prepared in respect of the articles which were found by police after the said complaint was investigated into. There was a bundle found in the suit tenement which was belonging to the respondent.

3. The appellant had contended that the said vacant possession of the suit premises was handed over to her by the respondent on 3.1.1988 in presence of two witnesses (1) Krishnarao Patil and (2) Shankar Shivram Chalke, who were residing in the same building. Shri Krishnarao Patil was examined as a witness by the landlady. However, said Chalke was not examined as a witness though the affidavits of both of them were filed by the appellant in support of her contentions.

4. The learned trial court passed a decree in favour of the appellant which was reversed by the 1st appellate court. The 1st appellate court held that the trial court had the jurisdiction to entertain the counter claim filed by the respondent in vies of provisions of Order 8 Rule 6. The 1st appellate court held that the suit tenement was handed over in possession of the landlady not on 3.1.88 but later on. The 1st appellate court had also recorded a finding that the respondent had not surrendered the tenancy. The 1st appellate court passed a judgment and decree in view of the said findings and that judgment and decree has been assailed by this second appeal.

7. Mr. Gole virtually read out the entire judgment of the 1st appellate court. The 1st appellate court has considered the nicest facets of the matter while recording its conclusions and resultant the judgment and decree holding that the respondent never surrendered his tenancy though the suit tenement was handed over in possession of the landlady. On the contrary, the learned 1st Appellate Court has pointed out as to how Krishnarao Patil was not only acquainted wit the appellant but was interested in protecting her interest. The 1st appellate court pointed out that when a panchanama was drawn in respect of the investigation of the complaint made by the respondent, he signed over the said panchanama but at the time of giving evidence in the Court he denied tat said panchanama was drawn in his presence. The learned 1st appellate court pointed out that though affidavit of said Mr. Chalke was filed, he was not examined as a witness nor offered for cross-examination. No reason has been given also as to why he was not examined. Normally in such cases said landlady would have examined those two witnesses and would not have preferred to examine one and drop other. The learned 1st appellate court pointed out that Mr. Patil was not having regard to the truth because though he had signed on the panchanama, he disowned by saying that panchanama was not drawn before him. The 1st appellate court pointed out that said Krishnarao Patil was holding good post in service but still was not having any regard forwards the truth.

8. All these circumstances justify the conclusion that the said tenement was handed over for accommodating the need of the landlady but tenancy was never surrendered. The human experience tells that in number of cases such accommodations are made for accommodating the needs of the neighbouring persons.

9. The learned 1st appellate court was right in setting aside the findings and resultantly the judgment and decree passed by the trial Court. The approach of the trial Court was totally erroneous because he had recorded the findings which were inconsistent with the evidence on record and the impact created by the infirmities in the evidence which was adduced on behalf of the appellate, the landlady.

10. Order 8, Rule 6 provides the entitlement of a defendant to put up a counter claim in the same suit and that counter claim if is consistent wit Sub-rules i.e. (a), (b), (c), (d), (e), (f), (g), etc. assumes the status of a suit. The defendant who files counter claim is entitled to get a relief indicated by the Counter Claim provided he follows the formality contemplated by Order 8 Rule 6 and pays the prescribed court fee. Therefore, there cannot be second opinion in saying that the respondent was entitled to file the counter claim and trial Court was having the jurisdiction to entertain that counter claim. It seems that it was contended that there was bar by provisions of the Limitation Act.

11. On this point, Shri Gole has submitted that the said counter claim should have been filed within six months. Shri Mulchandani replied by submitting that the counter claim was dependent on the right of the respondent as tenant of the tenements and, therefore, it was not barred by the period of limitation as submitted by the counsel appearing for the appellant. In the present case, the possession was handed over, as per the case of the original plaintiff-appellant, on 3.1.1988, as per the averments of the respondent, the possession was handed over temporarily on 8.2.1988 but the tenancy was not surrendered which appears to be the contention of the appellant. When it happens to be the stand of the tenant that the tenancy has not been surrendered but possession of the tenement has been handed over to the landlord or landlady temporarily for the purpose of accommodating such landlord or landlady for urgent need without surrendering the tenancy, the right to file the counter claim continues and when that happens to be preferred at the time of filing the written statement, there cannot be a bar to its filing in context with provisions of Limitation Act as indicated by Specific Relief Act. What law, so far as CPC is concerned, requires is that the counter claim should be set up in respect of a cause of action accrued to the defendants against the plaintiffs either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, where such counter claim is in the nature of claim for damages or not.

12. In the present case, the maintainability of the counter claim would not be dependent on the provisions of the Specific Relief Act but would be corelated with the right which is accruable to a tenant. It would be corelated with the provisions of the Transfer of Property Act if he happens to be a tenant governed by provisions of Transfer of Property Act and if he happens to be a tenant in view of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The important fact which would be required to be considered is whether his tenancy was a continued one or had ceased. When such a tenant is contending before the trial court tat his tenancy was continuing one and was not surrendered, the right to prefer the counter claim would be governed by provisions of Order 8 Rule 6A and that would be dependent on the stage of defendant delivering his defence or before the time limited for delivering his defence has expired. So also it would be in allied cases dependent on the pecuniary limit of the jurisdiction of the Court.

13. In the present case, the counter claim was filed along wit written statement and trial court had permitted ti to be taken on record. It means indirectly the trial Court did not treat it to be time barred on account of the provisions of Order 8 Rule 6A. When that was so. Obviously the trial Court was having the jurisdiction to entertain it. It is pertinent to note that the 1st Appellate Court has concluded by coming to the conclusion that it was not time barred because the provisions of Specific Relief Act did not apply to it but the provisions of Transfer of Property Act were applicable.

14. Thus, this Court does not find any ground to interfere wit the judgment and decree passed by the 1st Appellate Court and, therefore, the criticism levelled by the appellant on the judgment of the 1st Appellate Court stands dismissed.

15. After that, this Court adverts its attention to the Civil Application which has been preferred along with this second appeal i.e. Civil Application No. 215 of 1996. This Civil Application No. 215 of 1996. This civil application is intended for bringing it to the notice of this Court that respondent has acquired alternative suitable accommodation during the pendency of this second appeal. Normally this Court would have permitted such evidence to be brought on record but this aspect has been dealt with by the 1st Appellate Court by pointing out that the appellant chose the short cut for the purpose of getting possession of the suit tenement and basing her claim on the point of surrender of tenancy. Therefore, now she is precluded from contending that she is entitled to get the suit tenement as the respondent has acquired suitable alternative accommodation. She could have taken that ground in the suit itself. But she has not done it for the reasons best known to her. When a litigant abandons the stand which could have been taken in the suit at earliest stage, as an appropriate stage, he can not revive it at later stage after getting defeated on the stand already taken. Such litigant is estopped. Thus, this court dismissed the civil application also.

16. The appeal stands dismissed with costs. Same is the fate of the civil application.

17. Interim stay stands vacated.

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