Mrs. Supriya S. Kale And Anr vs Mr. Ranjit Diwadkar And Anr
2012 Latest Caselaw 481 Bom

    Rane                                            * 1/12 *                   CRA-451-2012
                                                                             Thurs,13Dec2012

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                                                   
             CIVIL REVISON APPLICATION NO. 451 OF 2012
                               IN




                                                           
                     APPEAL NO. 185 OF 2007
                               IN
                     R.C. SUIT NO. 100 OF 2002




                                                          
    Mrs. Supriya S. Kale and anr.                       ......Applicants/Orig.Plaintiffs
          V/s.
    Mr. Ranjit Diwadkar and anr.                       .....Respondents
                                                 * * * *




                                              
    Mr. D.H. Mehta i/by. M/s. Dhanuka  & Partners, Advocate for the 
                              
    applicants.
    Ms. Neelambari R. Prabhusalgaonkar, Advocate for the respondents.
                                     * * * *
                             
                     CORAM :- 
                     CORAM :-             SMT. R.P. SONDURBALDOTA, J.

13th December, 2012.

P.C. :-

1). The revision applicants herein, are the plaintiffs in Regular

Civil Suit No. 100 of 2002 filed by them for declaration that, they

are the tenants in respect of the suit shop and for an injunction to

restrain the respondents herein from dispossessing them from the

suit shop without following due process of law. The trial Court,

decreed the suit by its judgment and order dated 28 th September,

2007. The respondents challenged the judgment and decree by

preferring appeal to the District Court. Their appeal was allowed by

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the judgment and order dated 20th January, 2012. The present

Revision Application has been filed by the applicants to challenge

the order of the Appellate Court.

2). Respondent no.1 is the owner of the suit shop being Shop

No.4, Ground Floor, Gopigan Apartments, Naupada, Thane. On 22 nd

March, 1994 an agreement for leave and license was executed

between respondent no.1 and applicant no.2 for allowing applicant

no.2 to use and occupy the suit shop as a licensee for a period of

11 months i.e. until 28th February, 1995 on payment of license fees of

Rs.3,000/- p.m. and on other terms and conditions as stated in the

agreement. Thereafter, on 22nd February 1995, 2nd February 1997, 8th

January 1998, 2nd November 1999, 17th October 2000 and 4th October

2001, agreements for leave and license, each for a period of 11

months came to be executed in respect of the suit shop. The last

two agreements were executed with applicant no.1 and not applicant

no.2. The respondents served notice dated 5 th January, 2002 upon

applicant no.1 revoking the license and calling upon applicant no.1 to

vacate the suit premises. The notice was received by applicant no.1

on 7th January, 2002. Thereafter, the suit came to be filed on 2 nd

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February, 2002.

3). It is the case of the applicants, that the real transaction

between the parties was never of a license as stated in the

agreements executed by the parties, but was of tenancy. The

respondents, however, had prepared documents of leave and license,

which had been signed by the applicants from time to time, only to

avoid spoiling of relations. After taking the premises on tenancy, the

applicants claim to have started business therein in the name of

`Saraswati Stationery and Provision Stores'. The applicants have

obtained two telephone connections, one in the name of applicant

no.2 as the proprietor of Saraswati Stationery and Provision Stores

and other in the name of his brother, Sandeep at the address of the

suit shop. The applicants allege in the plaint that, in the last week

of January, 2002 the respondents had approached them at the shop

premises and threatened to dispossess them without following due

process of law. On the allegations as made, the applicants sought

declaration that, applicant no.1 is the tenant in respect of the suit

shop as described in the plaint and for a permanent injunction to

restrain the respondents from dispossessing the applicants from the

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suit shop without following due process of law. The description of

the suit shop as given in the plaint reads as follows :-

". The shop premises admeasures about 400 sq.feet area and includes shop and behind it store room. The store room has also a door towards Western Side. It is `L' type premises. There is also a shed in front of shop. The entire

premises hereinafter called the "SUIT SHOP".

. Thus, according to the applicants, the suit shop includes the

shop premises, the store-room behind it and the shed in front of the

shop.

4). The respondents in their written statement have disputed the

above description of the suit shop. They contend that, the suit

shop admeasures only 107 sq. ft. The store-room and the shed in

front of the shop has always been in the possession of the

respondents from where their son has been carrying on business of

music recording and music classes since the year 1997. Prior

thereto, one Mr. Savarkar was using those premises for conducting

classes. After him, the classes were conducted by one, Mr. Javadekar.

5). The respondents allege that the proceedings initiated by

the applicants are fraudulent proceedings filed with the intention of

grabbing the respondents premises. The applicants are also alleged

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to have suppressed material facts from the Court. The correct facts

according to the respondents, are that respondent no.2 was carrying

on business from the suit shop of stationery and other provisional

articles under the name and style of `Saraswati Stationery and

Provision Stores". The shop has been registered as an establishment

under the Shops and Establishment Act. Initially, the registration

stood in the name of Ms. Seema Suhas Diwadkar, sister-in-law of

respondent no.1. On 6th July, 1995 the registration came to be

transferred in the name of respondent no.1. That registration is

valid till date. Respondent no.1 being employed in an international

company is required to be out of India for long intervals. Therefore,

the respondents were on the lookout for a reliable person for

carrying on the business of `Saraswati Stationery and Provision

Stores" as a Conductor. The name of applicant no.2 was

recommended to the respondents through their common friend,

Advocate Mr. Godse. Applicant no.2, then was appointed as a

Conductor of the business and for that purpose, the leave and

license agreement for 11 months was executed. The agreements

were renewed from time to time. The respondents terminated the

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license by serving notice upon applicant no.1 and asking the

applicants to remove themselves from the suit shop. There is also a

grievance made by the respondents, that the applicants were not

regular in payment of the amount agreed under the agreements

executed between the parties. According to the respondents, the

telephone connections at the suit shop have been obtained by the

applicants without their permission. The respondents had filed a

counter-claim, inter-alia seeking a declaration that the applicants

are trespassers in respect of the suit shop and for possession. The

counter-claim, was later withdrawn by them on realisation that the

same would not be maintainable in the Court of Small Causes.

6). The applicants examined applicant no.2- an employee of

United India Insurance Company, P.W.2 and Clerk from the office of

Tax Recovery Department of Thane Municipal Corporation- P.W.3 and

an employee of Pest Control Universal Company in support of their

claim. The respondents have not led any evidence. One of the

contentions raised before the trial Court, the lower Appellate Court

and also this Court is about the non-registration of the agreements

of leave and license by the respondents as required under Section 55

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of the Maharashtra Rent Control Act. It is contended that, as a

consequence of non-registration, the contention of the applicants that

applicant no.1 is the tenant in respect of the premises must prevail.

The trial Court accepted the evidence of the applicants to decree the

suit. It declared that the applicants are the tenants in respect of the

suit shop and permanently restrained the respondents from

dispossessing the applicants from the suit shop, without following

due process of law. The lower Appellate Court reversed the

findings holding that, as the consequence of non-registration of leave

and license agreement under Section 55 of the Maharashtra Rent

Control Act, the legislature has not intended, to give the status of

tenant to a licensee in respect of the premises. The Appellate Court

also, noted admission on the part of applicant no.2 during his cross-

examination that prior to 1994, he had approached the respondents

with a request to run their business under the name and style of

`Saraswati Stationery and Provision Stores" and he had continued

that business. It was not the case of the applicants that, they had

purchased the goodwill of the business from the applicants. It

further noted that the evidence of applicant no.2 was completely

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silent on the registration of the establishment of `Saraswati

Stationery and Provision Stores" under the Shops and Establishment

Act. Further, though the declaration sought in the plaint was of

tenancy of applicant no.1, the evidence of applicant no.2 was that he

was the tenant in respect of the suit shop. It was not his evidence

that, applicant no.1 is the tenant in respect of the shop.

7). The evidence of applicant no.2 being completely contrary

to the pleadings in the plaint, the suit was liable to be dismissed on

this count alone. But, on such evidence, the trial Court strangely,

not only decreed the suit, but granted prayer for declaration which

was not asked for. The prayer in the plaint was for declaring

applicant no.1 as the tenant of the suit shop. The trial Court

declared, both the applicants as the tenants in respect of the suit

shop.

8). The entire evidence before the Court supports the case

of the respondents. In this situation, the only argument advanced

by Mr. D.H. Mehta, the learned Counsel appearing for the applicants,

is based on the interpretation of Section 55 of the Maharashtra Rent

Control Act. He has in all earnestness and seriousness, argued that

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the consequence of non-registration of the leave and license

agreements between the parties, is that the contention of the

applicants of being tenants in respect of the suit shop, must prevail.

9). Section 55 of the Maharashtra Rent Control Act, reads as

follows :-

55. Tenancy agreement to be compulsorily registered. (1) Notwithstanding anything contained in this Act or any

other law for the time being in force, any agreement for leave and license or letting of any premises, entered into between

the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing

and shall be registered under the Registration Act, 1908. (2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the

terms and conditions subject to which a premises have been given to him by the landlord on leave and license or have

been let to him, shall prevail, unless proved otherwise. (3) Any landlord who contravenes the provisions of this section shall, on conviction, be punished with imprisonment

which may extend to three months or with fine not exceeding rupees five thousand or with both.

10). Section 55(1) above, requires compulsory registration of the

agreement of tenancy and the agreement of leave and license.

Sub-Sections (2) and (3) provide for consequences of non-registration

of the agreements. The first consequence is about the contents of

the agreement, which is relevant for the present purposes and the

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second consequence is of punishment to the landlord upon whom

lies the statutory responsibility of getting the agreement registered.

Under Section 55(2), in the absence of the written registered

agreement, what shall prevail is the "contention of the tenant about

the terms and conditions subject to which the premises have been

given to him" on leave and license or on tenancy. This privilege

granted is not absolute. It is qualified by making it subject to any

other proof that may be brought by the landlord. Plain reading of

the language of the provision indicates that, the privilege granted

therein to the tenant/licensee is limited to his contentions as regards

the terms and conditions that would govern the specific relationship

between the parties. The privilege does not extend to claiming a

relationship or a right different from that mentioned in the

agreement. If the legislature desired to extend the privilege beyond

the terms and conditions in the agreement, it would have specifically

granted it in the provision, by saying that the contention of the

tenant/licensee as regards the right/relationship created under the

agreement shall prevail. To put the construction on Section 55(2) as

suggested by Mr. Mehta, will mean reading something more into the

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provision, than what occurs therein. The rules of interpretation, do

not permit this, unless the provision as it stands, is either

meaningless or of doubtful meaning. The provision of Section 55(2)

as it stands, can neither be said to be meaningless nor of doubtful

meaning. Therefore, there can be no substance in the argument

that, as a consequence of non-registration of the agreements for

leave and licence, the contention of the applicants that they are the

tenants in respect of the suit premises, shall prevail. The applicants

needed to establish the right of tenancy claimed by them by

independent positive evidence, which they have failed to do.

Therefore, the lower Appellate Court has rightly observed that the

relationship is unaffected and that the legislature never intended to

give status of tenant to the licensee as a consequence of non-

registration of leave and license agreement.

11). The applicants have also not produced any evidence to

establish that, they are the owners of the business of `Saraswati

Stationery and Provision Stores". The registration of the

establishment under the Shops and Establishments Act standing in

the name of respondent no.1, indicates that the business is owned

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not by the applicants, but by respondent no.1.

12). In all the above circumstances, the lower Appellate Court

has rightly appreciated the dispute and allowed the appeal. The

lower Appellate Court, while allowing the Appeal has merely set

aside the order of the trial Court. It has, however, not recorded that

the suit filed by the applicants is dismissed. The impugned order is

therefore confirmed with an addition that the suit filed by the

applicants is dismissed. The Revision Application is accordingly

disposed off.

(SMT. R.P. SONDURBALDOTA, J)