Hatimbhai Mohamedali Chinwala vs Amritlal Ranchhoddas Mehta And ...
2017 Latest Caselaw 8021 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE  JURISDICTION

                        WRIT PETITION NO. 886 OF 2003  

            Hatimbhai Mohamedali Chinwala               .. Petitioner
                         vs.
            Amritlal Ranchhoddas Mehta 
            (since deceased by his heir
            and legal representatives) and ors.        .. Respondents
                                            
            Mr. Sayed a/w. Mr. Shabbir Kapadia for the Petitioner.
            Mr. Rohan Sonawane for Respondent No.2.  


                                                  CORAM :  M. S. SONAK, J.

Date of Reserving the Judgment : 5th October 2017. Date of Pronouncing the Judgment : 11th October 2017.

JUDGEMENT:-

1] This petition is directed against the judgment and order

dated 27th November 2002 made by the Appellate Bench of

the Small Causes Court, Mumbai in Appeal Nos.357 of 1999

and 391 of 1999 setting aside judgment and decree dated 7 th

May 1999 made by the Small Causes Court in R.A.E. Suit

No.2523 of 1969 ordering the eviction of the respondents

(original defendants).

2] The petitioner, Hatimbhai M. Chinwala (Chinwala)

instituted R.A.E. Suit No. 2523 of 1969 against the legal

representatives of Amritlal Mehta (Mehta), M/s. M.K. Metal

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Traders (MKMT) and legal representatives of Fatimabai

Alibhai (Alibhai) seeking inter alia eviction of Mehta and

MKMT from the suit premises. Chinwala, in R.A.E. Suit No.

2523 of 1969 pleaded that he was the original tenant of the

suit premises which he sub-let to Mehta. Mehta,

unauthorisedly, parted possession of the suit premises to

MKMT. Therefore, Chinwala claimed eviction of Mehta and

MKMT. Initially, Alibhai, the owners of suit premises were not

impleaded as defendants to the suit. Thereafter, upon

directions from the High Court, Alibhai came to be impleaded

as party to the proceedings.

3] The defence of Mehta was that he has no truck with the

suit premises. MKMT took up the defence that the suit

premises were leased to it by the owners Alibhai and MKMT

has no truck either with Mehta or with Chinwala and

therefore, there was no reason to make any decree of eviction

at the instance of Chinwala. Alibhai raised the defence that

the suit premises were purchased by them vide Conveyance

dated 23rd January 1962 from Official Trustee of Bombay.

Alibhai contended that on the date of purchase, the tenancy

receipts were already standing in the name of Mehta. Mehta

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surrendered the tenancy to Alibhai and thereafter, the suit

premises were leased to MKMT.

4] Based upon the pleadings, the Small Causes Court

(Trial Court) framed the following issues:

"7. Issues for decision are:

1. Whether this court has jurisdiction to try the present suit?

1A. Does the Plaintiff prove that he bonafide and reasonably required the suit premises for personal use and occupation ?

2. Does he further prove that no greater hardship will be caused to the defendant No.1 if decree for eviction is passed ?

3. Does he prove that the defendant No.1 unlawfully sublet, assigned or transferred his interest in any other manner in the suit premises to the defendant No.2.

4. Does the defendant No.1 prove that the Plaintiffs has surrendered all his tenancy rights in his favour as alleged in para 6 of the w.s. ?

5. Is the tenancy of the defendant No.1 validly determined ?

6. Whether the suit as filed is maintainable against the defendant No.1a and 1b.

7. Whether the suit is barred by law of Limitation ?

8. Does the defendant No.2 prove that he has become the tenant of the suit premises directly from the landlord and therefore, he is protected ?

9. Is Plaintiff entitled to possession ?

10. What decree and what order ?"

5] The aforesaid issues were answered by the Trial Court

in the following manner:

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                    "8.        My findings are:
                               1.    Yes.
                               1A. No
                               2.    Does not arise.
                               3.    Yes, unlawfully 

parted with possession of the suit premises.

4. No.

5. Does not survive, If survives, yes.

6. Yes.

7. No.

8. No.

9. Yes.

10. As per Order."

6] The Trial Court, accordingly, ordered eviction of the

defendants to the suit and directed restoration of possession

to Chinwala.

7] MKMT and Mehta's instituted Appeal Nos.218 of 1986

and 598 of 1986 to question the Trial Court's judgment and

decree dated 11th February 1986 before the Division Bench of

the Small Causes Court (Appeal Court). The Appeal Court, by

judgment and decree dated 13 th October 1993 dismissed the

appeals, but stayed the execution of eviction decree for a

period of eight weeks.

             8]     MKMT and Mehta instituted Writ Petition Nos.4840 of 

             1993   and   1726   of   1994     to   question   the   Appeal   Court's 



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judgment and order dated 13th October 1993 confirming the

Trial Court's eviction decree dated 11th February 1986. At this

stage, it is relevant to note that Alibhai had not been

impleaded as party to the proceedings.

9] Writ Petition Nos. 4840 of 1993 and 1726 of 1994 were

disposed of by common judgment and order dated 19 th

February 1998. Writ Petition No. 1726 of 1994 was permitted

to be withdrawn, taking into consideration the averments

made by Mehtas in their written statement to the effect that

they had no truck with the suit premises. However, Writ

Petition No. 4840 of 1993 instituted by MKMT was allowed

and the matter was remanded to the Trial Court for fresh

adjudication after impleading Alibhai as party to the

proceedings. The operative portion of judgment and order

dated 19th February 1998 , insofar as Writ Petition No. 4840

of 1993 is concerned, reads thus:

"6. In the result therefore, Writ Petition No. 4540 of 1993 succeeds and is allowed, Orders passed by both the Courts below impugned in the petition are set aside. The Plaintiff - respondent No.1 Hatimbhai is directed to join the landlady Fatimabai as party defendant in the suit and the Trial Court is directed to try the suit and decide it in accordance with law and in the light of the observations made above. Considering that the suit has been filed in

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the year 1969, the Trial Court shall decide the suit as expeditiously as possible and in any case, within one year from the date on which the record of the case, together with writ of this order, is received by the Trial Court."

10] Upon remand, the Trial Court, by judgment and decree

dated 7th May 1999 decreed the suit by making the following

order :

7. "ORDER

1. Plaintiff's suit is decreed against all defendants except defendant Nos.3(a), 3(b) and 3(c).

2. The Defendant Nos.1 (a)(ii), 1(a)(ii), 1(a)

(iii), 1(b) and 2 are hereby directed to hand over quite, vacant and peaceful possession of the suit premises shop on the ground floor of the property

situate at Banian Street, Bombay - 3 to the Plaintiff within two months from today and also directed to pay cost and professional costs of the Plaintiff and bear their own costs.

3. Defendant Nos. 3 (a), 3(b) and 3(c) are to bear their own costs.

4. A Decree shall be drawn up accordingly."

11] MKMT and Alibhai instituted Appeal Nos. 357 of 1999

and 391 of 1999 to question the Trial Court's judgment and

decree dated 7th May 1999 before the Division Bench of the

Small Causes Court (Appeal Court), which has by the

impugned judgment and order dated 27th November 2002,

allowed the appeals and set aside the Trial Court's judgment

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and decree dated 7th May 1999. Hence, the present petition

by Chinwala.

12] Mr. Sayed, learned counsel for the petitioner Chinwala,

submits that the Deed of Conveyance dated 23 rd January

1962, by which, Alibhai has purchased the suit premises from

the Official Trustee makes reference to Chinwala being the

tenant of the suit premises. Mr. Sayed submits that despite

repeated applications, Alibhai refused to produce the Deed of

Conveyance dated 23rd January 1962 on record. However,

some letter/extract was produced, in which, the name of

Chinwala finds reference. Mr. Sayed submits that this clearly

establishes that Chinwala was the tenant in respect of suit

premises.

13] Mr. Sayed further submits that there were no pleadings

to the effect that Chinwala, who was earlier the tenant of the

premises has either expressly or impliedly surrendered

tenancy rights to the suit premises in favour of the original

owner. In the absence of any such pleadings, the Appeal

Court, was not at all entitled to conclude that Chinwala has

impliedly surrendered tenancy to the suit premises, thereby

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making way to the owners to create a fresh tenancy in favour

of MKMT. Mr. Sayed submits that the Appeal Court failed to

appreciate that evidence, which has no backing of pleadings,

cannot even be looked into much less relied upon. On this

basis, Mr.Sayed submits that the impugned judgment and

decree made by the Appeal Court warrants interference.

14] Mr. Sayed submits that implied surrender of tenancy

can never be easily presumed. He submits that merely

because there is some evidence on record that Mehtas were in

possession of the suit premises from 1954 and even the rent

receipts are directly in the name of Mehtas from 1962, that by

itself, does not mean or imply that Chinwala had surrendered

the tenancy to the suit premises. Mr. Sayed submits that the

payment of rent by Mehta, in such circumstances is required

to be construed as payment made by Mehta for and on behalf

of real tenant Chinwala. Mr. Sayed relies upon Nemi Chand

vs. Onkar Lal - AIR 1991 Supreme Court 2046 in support of

such propositions.

15] Mr. Sayed submits that there was ample evidence on

record, which establishes that Chinwala was real tenant in

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respect of suit premises and MKMT was an unauthorised

occupant inducted by Mehtas. Mr. Sayed submits that qua

Mehta, it is Chinwala, who answered definition of expression

"landlord". Therefore, the Trial Court on both occasions was

entirely justified in ordering the eviction of MKMT and

directing restoration of possession in favour of Chinwala.

16] Mr. Sayed finally, submits that there is evidence on

record that Chinwala required the suit premises for

reasonable and bona fide purposes. In such circumstances, the

Trial Court, on two occasions, was right in ordering eviction

of MKMT and the Appeal Court exceeded jurisdiction in

reversing the Trial Court and dismissing Chinwala's suit. Mr.

Sayed submits that this is a fit case to exercise extra ordinary

jurisdiction under Article 227 of the Constitution of India and

to set aside the Appeal Court's judgment and order dated 27 th

November 2002 and to restore the Trial Court's judgment and

decree dated 7th May 1999.

17] Mr. Rohan Sonawane, learned counsel for respondent

No.2., i.e., M/s. M.K. Metal Traders, submits that there is no

evidence regards the status of Chinwala qua the suit premises.

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He submits that the Deed of Conveyance dated 23 rd January

1962 was never produced any evidence and therefore, there is

no basis to contend that this Deed of Conveyance

acknowledges Chinwala as the original tenant. Mr. Sonawane

submits that some letters or extracts, which have not even

been proved or admitted in evidence can therefore, never be

relied upon in support of Chinwala's claim of tenancy to the

suit premises.

18] Mr. Sonawane, submits that without prejudice there is

ample evidence on record which suggests that Chinwala had

virtually no truck with the suit premises since the year 1954.

Chinwala has not produced any documents whatsoever to

establish that Chinwala paying any rent to erstwhile landlord

in respect of suit premises. If, from 1954 onwards, Chinwala

has not complied with his obligation as tenant, then, the only

inference that can be drawn is that Chinwala, assuming he

was at some stage the tenant of the suit premises,

surrendered the tenancy. At the stage when Alibhai purchased

the suit premises, Chinwala was no longer the tenant of the

suit premises. Alibhai, therefore, created a fresh tenancy in

favour of MKMT and this aspect is more than amply borne out

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from the material on record. Mr. Sonawane submits that this

Court, in exercise of its extra ordinary jurisdiction under

Article 227 of the Constitution of India, may not re-appreciate

the evidence on record particularly since no perversity has

been demonstrated by the petitioners, insofar as the findings

on fact recorded by the Appeal Court are concerned.

Mr.Sonawane submits that this petition may therefore, be

dismissed with costs.

19] The rival contentions now fall for determination.

20] There is no clear material on record to establish the

status of Chinwala. Chinwala was duty bound to produce on

record the proper and cogent material to establish that he was

indeed the tenant in respect of suit premises as on the date of

institution of R.A.E. Suit No. 2523 of 1969. This, Chinwala

has failed.

21] Mr. Sayed learned counsel for Chinwala, claims that by

Deed of Conveyance dated 23 rd January 1962, Alibhai

purchased the suit premises from the Official Trustee of

Bombay, reflects the name of Chinwala as a tenant. If this be

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so, nothing prevented Chinwala from producing the Deed of

Conveyance, which was obviously registered document. It is

not sufficient to urge that repeated applications were made

calling upon Alibhai to produce such Deed of Conveyance.

Since, this was a registered document, it was for Chinwala to

summon the registering authorities or obtain certified copy of

such document from the Official Trustee of the Bombay.

Chinwala did not even apply for leave to lead secondary

evidence with regard to Deed of Conveyance dated 23 rd

January 1962.

22] In the course of arguments, Mr. Sayed, attempted to

hand in a list, which he submitted, was an Annexure to the

Conveyance dated 23rd January 1962. Mr. Sayed submitted

that since this annexure reflects the name of Chinwala at

serial No.4, the tenancy rights of Chinwala to the suit

premises stands established. At the stage of deciding this

petition, it will not be appropriate to take cognizance of such

alleged annexure to the Deed of Conveyance dated 23 rd

January 1962. There is nothing in the annexure which was

handed in to indicate that it was some annexure to the Deed

of Conveyance dated 23rd January 1962. Further, the

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significance of the name of Chinwala in the said annexure

was also by no means clear. On basis of such annexure

therefore, it cannot be said that Chinwala had cleared the

position with regard to his status qua the suit premises.

23] Even assuming that Chinwala was at some stage, the

tenant in respect of suit premises, the Appeal Court, upon due

consideration of the evidence on record has noted that at

least on the date of institution of R.A.E. Suit No. 2523 of

1969, there was no material to establish that Chinwala was

indeed the tenant of the suit premises and M/s. MKMT was

his sub-tenant or transferee from his sub-tenant Mehta. The

Appeal Court has noted that in the year 1962 Alibhai

purchased the suit premises. At that stage, the rent receipt

was in the name of Mehta. The Appeal Court has also noted

that since several years prior to institution of the suit,

Chinwala made no enquiries as to in whose name the rent

receipts were issued and who was paying the rents. Amritlal

Mehta in his deposition, has stated that his father surrendered

the tenancy to the landlords and thereafter, the landlords,

created a fresh tenancy in favour of MKMT. In such

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circumstances the Appeal Court, has held that MKMT was not

some unauthorized transferee in respect of the suit premises.

24] The crucial issue is status of Chinwala qua the suit

premises. Chinwala, as a plaintiff, has to stand or fall on his

own feet. Assuming that something can be said about the

findings recorded by the Appeal Court as regards surrender of

tenancy, it is to be noted that for such findings to assume

importance, Chinwala, had to, in the first instance, establish

by cogent evidence his precise status qua suit property. The

material on record suggests that Chinwala has virtually

abandoned relationship with the suit premises for several

years prior to institution of the suit. When construed from this

perspective, the impugned judgment and order made by the

Appeal Court warrants no interference in the exercise of extra

ordinary jurisdiction under Article 227 of the Constitution of

India.

25] The decision in Nemi Chand (supra), is distinguishable

on facts. There, the lessee in possession of the suit property

lent certain amount to the landlord on security of the suit

property which was mortgaged to him by the landlord. On the

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expiry of the period mortgage, a suit for redemption was filed

by the landlord. In these circumstances, it was held that the

relationship of the landlord, tenant has subsisted, even

though, the parties have entered into a new relationship of

creditor and debtor on the security of property already in

possession of the lessee as a lessee. In the said case, the

document of mortgage indicated that during the period of

mortgage, which was to for five years, neither interest nor

rents were payable by the parties, both amounts being equal.

This showed that the rent was kept alive and it was adjusted

against the interest. That was the adjustment of one liability

against another. In other words the relationship between the

parties as lessor and lessee subsisted. There was no merger of

the lease and the mortgage. No merger could take place in

law. The decree for redemption only redeemed the mortgage

and did not determine the lease. That was a relationship

which still subsisted and determinable according to law.

26] Now in the facts of the present case, no such situation,

as had arisen before the Hon'ble Supreme Court in case of

Nemi Chand (supra), even remotely arises. Chinwala has

produced no evidence on record to indicate that the

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relationship of the tenancy, assuming that it existed some

point earlier, was in fact, in existence on the date of

institution of the suit for eviction. Chinwala has nowhere

demonstrated payment of any rent or demonstrated conduct

consistent with the claim of tenancy to the suit premises for

several years prior to the institution of the suit for eviction. In

such circumstances, there is no reason to fault the impugned

order made by the Appeal Court. The decision in Nemi Chand

(supra), is really, of no assistance to Chinwala.

27] The Appeal Court, is a final Court on facts. In this case,

Mr. Sayed, learned counsel for Chinwala, has failed to

demonstrate any perversity in the record of findings of fact. It

is true that there are some inconsistencies in the pleadings of

the parties. However, such inconsistencies apply to both the

plaintiff as well as the defendants. Ultimately, the issues were

framed by the Trial Court and the evidence has been lead on

all the issues. The Trial Court, on the basis of the evidence on

record, did hold in favour of Chinwala. However, the Appeal

Court, upon re-appreciation of the evidence and taking note

of the circumstance that Chinwala has failed to produce any

cogent evidence to explain his precise status, has non-suited

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Chinwala. In such circumstances, it cannot be said that the

findings recorded suffer from perversity so as to warrant

interference under Article 227 of the Constitution of India.

28] In this case, the Trial Court has more or less proceeded

on the premise that Chinwala was indeed the tenant of the

suit premises on the date he instituted the suit. This is despite

the fact that at least from 1954 onwards, the material on

record suggests that Chinwala had practically no truck with

the suit premises and Chinwala had neither paid any rent nor

conducted himself consistent with his claimed status of

tenancy to the suit premises. The Appeal Court, in such

circumstances, cannot be said to have been exercised its

appellate jurisdiction unreasonably or arbitrarily. In exercise

of jurisdiction under Article 227 of the Constitution of India,

it is not for this Court to re-appreciate the entire evidence on

record or take note of some contradictions here and there.

29] The petitioner has failed to demonstrate any

jurisdictional error in the impugned order. The petitioner has

also failed to demonstrate any perversity in the finding

recorded by the Appeal Court. This is also not a case where

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any relevant and vital piece of evidence has been overlooked

by the Appeal Court. This is a case where the Appeal Court,

upon due appreciation of evidence on record has disagreed

with findings recorded by the Trial Court. The Appeal Court is

normally a final Court insofar as the facts are concerned. As

long as case of perversity is not made out, it is not for this

Court to interfere in exercise of jurisdiction under Article 227

of the Constitution of India. Merely because some other view

is possible or plausible, interference under Article 227 of the

Constitution of India is not warranted. In a matter of this

nature, this Court, is not called upon to exercise any appellate

jurisdiction. The circumstance that Chinwala has not bothered

to comply with any obligation qua the suit premises for

several years prior to institution of the suit seeking eviction of

MKMT, is not some irrelevant or extraneous consideration. In

this case, the Trial Court had not assigned any importance to

this aspect. However, the Appeal Court has given due

weightage to this aspect, so as not to order eviction of MKMT,

who is, in possession of the suit premises at least since the

year 1962 or even earlier. Again, as stated earlier, there is really no

perversity in the record of findings of fact or in the approach of

Appeal Court. The decision in Nemi Chand (supra), which

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was main plank of Mr. Sayed's contention, is found to be

clearly distinguishable. The factual situation in Nemi Chand

(supra), was entirely different and therefore, not comparable

to the fact situation in the present case.

30] Upon cumulative consideration of the facts and

circumstances, the legal position as well as the restrictive

parameters of interference under Article 227 of the

Constitution of India, there is no case made out to warrant

interference with the impugned order. This petition is

therefore, dismissed. There shall however, be no order as to

costs.

                                                          (M. S. SONAK, J.)




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