Mrs.Leena Harriques Thomas & Anr vs Shri Dominic C.Fonseca & Ors
2017 Latest Caselaw 6923 Bom

Dinesh Sherla                                                               judgment-wp-915-97



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE  JURISDICTION
                        WRIT PETITION NO. 915 OF 1997 

         1.    Mrs. Leena H. Thomas (deleted)
         2.    Mr. Anthony Thomas                        .. Petitioners                       
                     vs.
         Mr. Dominic G. Fonseca and ors.            .. Respondents
                                                                 
         Mr. Amogh Singh a/w. D.P. Singh for the Petitioner.
         Mr. Owen Menezes i/b Mr. R.S. Tripathi for the Respondents.                          

                                  CORAM :  M. S. SONAK, J.

Date of Reserving the Judgment : 1 September 2017. Date of Pronouncing the Judgment : 8 September 2017.

JUDGEMENT:-

1] The petitioners, legal representatives of the original defendant

challenge the following judgments and decrees made by the Small

Causes Court and the Appellate Bench of the Small Causes Court in

R. A. Declaration Suit No. 4363 of 1985 instituted by the

respondents herein (original plaintiffs) seeking declaration of

tenancy and consequential reliefs:

a] Judgment and decree dated 9th February 1988 made by

the Small Causes Court in R.A.D.Suit No. 4363 of 1985; and

b] Judgment and decree dated 23 rd July 1996 made by the

Appellate Bench of the Small Causes Court in Appeal No. 120

of 1988.

 Dinesh Sherla                                                                      judgment-wp-915-97



         2]      For the reference of convenience, the respondents herein shall 

be referred to as the plaintiffs and the petitioners herein shall be as

the defendants.

3] The plaintiffs instituted R.A.D. Suit No. 4363 of 1985 in the

Small Causes Court at Mumbai seeking following substantive reliefs:

"(a) that it be declared by this Hon'ble Court that the Plaintiff Nos.1 to 4 are the legal heirs and representatives of the late Goregaon A. Fonseca and they are entitled to have the tenancy right transfer in the name of the Plaintiff No.1 who is the eldest member in the family and Plaintiffs No.2 to 4 and their family members are also entitled enjoy the tenancy rights of the said ground floor premises along with Plaintiff No.1 therein i.e. House No.19, (8-C), Ranwar, Bandra, Bombay-400 050 of the Defendants her in and protected under the Bombay Rent Act.

(b) that this Hon'ble Court will be pleased to grant the permanent injunction against the Defendants, their servants and agents and hirelings restraining them from interfferring disturbing and/or removing and/or taking forcible possession of the Plaintiff premises situated at ground floor House No.19 (8- C) Ranwar, Bandra, Bombay - 400 050 except for the purpose of ingress and egress from hall of the Plaintiffs for going to the 1st floor only, otherwise then by due process of law;"

4] The defendants filed their written statement denying the case

set out by the plaintiffs. However, the defendants placed reliance

upon the agreement dated 11 th November 1953 and contended that

in terms of the said agreement, the plaintiffs can neither claim

tenancy rights nor rights of exclusive user to the entire ground floor

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premises of House No.19, (8-C) Ranwar, Waroda Road, Bandra,

Mumbai - 400 050 (suit premises). It was submitted that the relation

between the parties is governed by the Agreement dated 11 th

November 1953 and in terms thereof the plaintiffs can, at the

highest, claim tenancy in respect of Room No.3 on the ground floor,

but no tenancy in respect rest of the area on ground floor.

5] On the basis of pleadings of the parties, the Small Causes

Court framed the following issues

Issues:

"1. Do the plaintiffs prove that they are the legal heirs and representatives of the original tenant late George Albert Fonseca ?

2. Do the plaintiffs prove that the said late Mr. George Albert Fonseca was the tenant in respect of the suit premises ?

3. Do the plaintiffs prove that they are entitled to get transferred the tenancy right in the name of the Plaintiff No.1, who is the eldest member of the plaintiffs' family.

4. Do the plaintiffs prove that they are entitled to enjoy the tenancy right in respect of the suit premises ?

5. Do the plaintiffs prove that they are entitled for a declaration as per, prayer clause 'a' of the Plaint ?

6. Whether the suit of the plaintiffs is maintainable.?

7. Do plaintiffs prove that they are entitled to get a permanent injunction as prayed for?

8. What reliefs and order ?"

6] On behalf of the plaintiffs, Derick Fonseca (PW-1) came to be

examined and was cross-examined on behalf of the defendants.

 Dinesh Sherla                                                                      judgment-wp-915-97



         7]      On behalf of the defendants, the following persons came to be 

examined and were cross-examined on behalf of the plaintiffs:

                 1]       DW-1 Anthony Thomas Henriques; and

                 2]       DW-2 Mrs. Leena P. Henriques



         8]      The Small Causes Court, by judgment and decree dated 8/9 th 

February 1988, partly decreed R.A.D.Suit No. 4363 of 1985. The

operative order reads thus:

"O R D E R Suit partially decreed.

It is held that the plaintiffs are tenants in respect of room No.3 as shown in the sketch Ex.2. They are entitled to enjoy the tenancy rights in respect of said room No.3 and have rent bill transferred in their names.

The defendants are restrained from disturbing the possession of the plaintiffs in resprct of said room No.3.

Interim injunction granted by this Court on 16.4.1986 shall continue till 31st March, 1988".

9] The plaintiffs aggrieved by the judgment and decree made by

the Small Causes Court instituted Appeal No. 120 of 1988 before the

Appellate Bench of the Small Causes Court. No cross appeal or cross

objections were lodged by the defendants. The Appellate Bench of

the Small Causes Court by its judgment and decree has allowed the

appeal and made the following operative order:

"O R D E R:-

Appeal of the Appellants is allowed in the following terms.

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The impugned order and decree dated 9-2-1988 in RAD Suit No.4363 of 1985, passed by the Ld. Trial Judge is set aside and in its place the following order is substituted.

Substituted Order:

RAD Suit No. 4363 of 1985 is decreed in the following terms.

The appellants are hereby declared to be the tenants in respect of the entire ground floor premises as shown in sketch Ex.2 and that they are protected under the Bombay Rent Act and they are also entitled to get the rent receipt transferred in the name of appellant No.1 in respect of the entire ground floor premises.

Appellants are also entitled to get permanent injunction in terms of prayer clause (b) of the said RAD Suit No. 4363 of 1985.

No order as to costs."

10] Mr. Amogh Singh, learned counsel for the defendants, has

made the following submissions:

a] The Appeal Court has grossly misconstrued or in any

case, virtually re-written the agreement dated 11 th November

1953 entered into by and between the parties in holding not

only that the plaintiffs are the tenants of the entire ground

floor, but further holding that the defendants, who are

admittedly, landlord of the entire property, are themselves,

licencees of the plaintiffs in respect of major portions of the

ground floor premises. Mr. Amogh Singh submits that the

approach and findings recorded by the Appeal Court are

contrary to well settled canons of interpretation of documents

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and such findings and approach is clearly unreasonable and

perverse;

b] Mr. Amogh Singh submits that there is no ambiguity in

the agreement dated 11th November 1953. In any case,

assuming there is some ambiguity between clauses 1 and 2 of

the agreement, such ambiguity, is required to be resolved by

the harmonious construction of two clauses. The Appeal Court,

has virtually ignored clause 2 of the agreement and instead

rewritten the terms of the agreement between the parties,

which is an exercise in excess of jurisdiction. Mr. Singh has

relied upon Shin Satellite Public Co. Ltd. Vs. Jain Studios

Ltd. - (2006) 2 SCC 628, Vice-Chairman and Managing

Director, A.P. SIDC Ltd. and anr. vs. R. Varaprasad and ors. -

(2003) 11 SCC 572 and Progressive Constructions Ltd. vs.

Chairman, National Highways Authority of India and ors. -

2009 SCC Online Del. 195., to contend that Courts have to

read the contracts entered into between the parties as they are

and it is impermissible to rewrite such contracts or to create

any new one;

 Dinesh Sherla                                                                        judgment-wp-915-97



                 c]       Mr.  Singh   submits   that   in  this   case,   the   plaintiffs   had 

initially denied the execution of the agreement dated 11 th

November 1953. However, later on, at the stage of appeal, the

plaintiffs accepted execution and validity of the agreement

dated 11th November 1953. Mr. Singh submits that in fact, it

was the duty of the plaintiffs to have disclosed the agreement

dated 11th November 1953 in their plaint and the suppression

of this vital and material document, was sufficient to disentitle

the plaintiffs any reliefs in the suit. In any case, Mr. Singh

submits that the defendants had examined DW-2 Mrs. Leena P.

Henriques, who was one of the signatories to the agreement

dated 11th November 1953. The Appeal Court has completely

ignored the evidence of DW-2 Mrs. Leena P. Henriques, even

though, this witness was the only person or rather best person

to depose regards the intention of the party, assuming that

such intention was relevant, on account of any alleged

ambiguity in the context of the agreement dated 11 th

November 1953. Mr.Singh submits that this is a case of

exclusion of vital and relevant evidence by the Appeal Court,

which renders the findings recorded by the Appeal Court

perverse.

 Dinesh Sherla                                                                    judgment-wp-915-97



         11]     Mr. Menezes, learned counsel for the plaintiffs, submits that 

the findings of fact are immune from challenge under Article 227 of

the Constitution of India unless clear perversity is demonstrated and

established. Mr. Menezes submits that in the present case, the two

Courts, including in particular the Appeal Court has appreciated

both oral as well as documentary evidence on record in its correct

perspective and therefore, there is no case made out to interfere

with the findings recorded by the Appeal Court.

12] Mr. Menezes submits that until the year 1976, there was no

lavatory or kitchen on the 1st floor in the house in occupation of the

defendants-landlords. Therefore, a provision was made in clause 2 of

the agreement dated 11th November 1953 to permit the defendants

user of lavatory and kitchen on the ground floor. However, the entire

ground floor premises had in fact been leased out by the defendants

to the plaintiffs and it is the plaintiffs who had granted a licence to

the defendants to use kitchen and lavatory until the defendants

making alternate arrangements for themselves on the first floor.

Mr.Menezes points out that since the year 1976, the defendants have

admittedly made arrangements for kitchen and lavatory on the 1 st

floor, as a consequence of which the license granted by the plaintiffs

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has come to an end. In such circumstances, the plaintiffs were

entitled to a declaration of tenancy and an injunction restraining the

defendants from using the ground floor premises, except for the

limited purpose of ingress and egress from the hall of the plaintiffs

for going to the 1st floor of the house, which is owned and occupied

by the defendants. Mr. Menezes submits that from bare reading of

the agreement dated 11th November 1953, it is quite evident that the

defendants-landlords have let out the entire ground floor premises of

the house to the plaintiffs. Therefore, Mr. Menezes submits that the

plaintiffs have quite correctly been declared tenants in respect of

entire ground floor premises.

13] The rival contentions now fall for determination.

14] This entire matter turns on the interpretation of agreement

dated 11th November 1953. In fact, both the learned counsel made

extensive submissions as to the interpretation of clauses of

agreement dated 11th November 1953. From this, it is evident that

most relevant and vital documentary evidence in this matter is the

agreement dated 11th November 1953. Since this so, it was the

bounden duty of the plaintiffs to have referred to this agreement

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dated 11th November 1953 in their plaint and list of documents in

support of plaint. However, the plaintiffs, virtually suppressed the

agreement dated 11th November 1953 and even went to the extent

of contending that such a document was never executed by them or

their predecessor-in-title. In the Appeal Court, however, the plaintiffs

admitted to the execution of agreement dated 11th November 1953.

15] The Appeal Court, in its impugned judgment and decree dated

23rd July 1996, at paragraph 29, has specifically recorded that the

plaintiffs have accepted the validity of the agreement dated 11 th

November 1953 (Exhibit-5). Paragraph 29 reads thus:

"29. It appears from the cross-examination of appellant No.2 on page 7 of the notes of evidence conducted by the Ld. Advocate for the respondents as also from the evidence in cross- examination of the respondents No.1 on page 35 conducted by the Ld. Advocate for the appellants that the tenancy agreement dated 11-11-1953 was disputed at the trial stage by the appellants and they have denied the signature of the original tenant on the same and they have termed it as a fabricated document prepared afterwards and the signature of original tenant on it being fabricated. But at the stage of hearing of appeal before us, the Ld. Advocate for the appellants has made statement that the appellants admit the said tenancy agreement Ex.5. Therefore, we need not waste our time in considering the validity or otherwise of the agreement."

(emphasis supplied)

16] In S.P. Chengalvaraya Naidu (dead) by LRs. vs. Jagannath

(dead) by Lrs. And ors. - AIR 1994 SC 853, the Hon'ble Supreme

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Court has held that it is a duty of party to a legal proceedings to

disclose relevant documents and if there is suppression, the party

which has indulged in suppression can be summarily non-suited.

17] The relevant observations from Chengalvaraya (supra),. read

thus:

"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence." The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax

-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

8. ... ... ... ... ... ... ... ... ...

Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the

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other side than he would be guilty of playing fraud on the court as well as on the opposite party."

18] In this case, since the plaintiffs suppressed agreement dated

11th November 1953 and even went to the extent of styling such

agreement as a fabrication, when, the agreement was disclosed by

the defendants, applying Chengalavarya principle, it was possible to

dismiss the plaintiffs' suit in its entirety. However, since both Small

Causes Court and the Appellate Bench of the Small Causes Court

have not adopted such a course of action, it will not be appropriate

to non-suit the plaintiffs at this stage, even though, the plaintiffs,

were duty bound to disclose the agreement dated 11 th November

1953 in their plaint seeking for equitable reliefs like declaration and

injunction. There was no issue framed by the Small Causes Court

regards suppression of relevant and material documents. The suit

was instituted by the children of Robert (George Fonseca).

Accordingly, there is no clear material on record to establish that the

plaintiffs were fully aware of the existence of the agreement dated

11th November 1953. In such circumstances, non-suiting the

plaintiffs, would resulting in depriving them of tenancy rights

altogether, which, would, in the facts and circumstances of the

present case, be quite a harsh consequence. Primarily for this reason,

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it is not possible to accept Mr. Amogh Singh's contentions that the

plaintiffs' suit deserves summary dismissal as the plaintiffs had

indulged into suppression of relevant and vital document in the form

of agreement dated 11th November 1953. However, this aspect

assumes importance for purposes of appreciating Mr. Singh's

contention that the findings of Appeal Court are vitiated by

perversity, since, the Appeal Court has ignored the evidence of DW-2

Mrs. Leena P. Henriques, who was one of the signatories to the

agreement dated 11th November 1953 and therefore, in the best

position to explain the said document as well as the intention of the

parties.

19] Since, much turns on the agreement dated 11 th November

1953, it will be only appropriate to transcribe the said agreement in

its entirety for convenience of reference.

"THIS AGREEMENT made this Eleventh day of November 1953 Between (1) THOMAS PETER HENRIQUES and (2) MRS. LENA THERESA HENRIQUES of Bandra Catholic Christian Inhabitants (hereinafter called the "Lessors") of the one part And Robert (George) FONSECA also of Bandra Christian Inhabitant (hereinafter called the "Lessee") of the other part WHEREAS the Lessors are the owners of one storey building, bearing House No.19, situate at Ranwar, Waroda Road, Bandra AND WHEREAS one Ignatius John Fonseca had been a tenant of the Lessors in the whole of the said house, containing the ground floor and the upper floor AND WHEREAS the Lessee was a sub-tenant of the said tenant Ignatius John Fonseca as a monthly tenant

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on a monthly rent of Rs.22/-(twenty two) only on a portion of the ground floor of the said house AND WHEREAS the Lessors served the said tenant Ignatius John Fonseca with a notice to vacate the said whole premises on the ground that the Lessors required the premises bona fide and reasonably for their own use and occupation AND WHEREAS the said tenant Ignatius John Fonseca agreed to give possession of the upper floor only and went to reside in his own house at Bandra AND WHEREAS an arrangement has been arrived at between the Lessors and the Lessee to continue the Lessee as a tenant of the Lessors on the ground floor on certain terms and conditions NOW THIS AGREEMENT WITNESSETH as follows:

(1) That the Lessors shall keep and continue the Lessee as their monthly tenant on the ground floor of the said house, consisting of one hall, one dining room, one bed room and a kitchen on payment of a monthly rent of Rs.22/- (twenty two) only, inclusive of water, commencing from the 1 st day of November 1953.

(2) That both the Lessors and the Lessee shall have the joint and common and amiable use of the kitchen and the lavatory and the bath room on the ground floor without any let or hindrance from any one of them.

(3) That the Lessors shall have the right to make use of the Hall near the stair case for purposes ingress and egress to the upper floor without any let or hindrance from the Lessee and the Lessors shall pay for one electric light in the Hall. (4) The Lessors and the Lessee havemutually agreed to come to some working arrangement regarding the consumption of electricity in the premises, as there is only one electric meter for the whole house. In case the parties hereto do not arrive at such mutual agreement regarding the consumption of electricity, a separate sub-meter shall be installed and both the parties shall bear the installation costs and meter hire thereof equally. (5) The Lessee shall pay regularly the said rent on or before the 10th day of every succeeding month without any deduction whatsoever.

(6) The Lessee shall carry out all minor repairs to the premises at his own costs.

IN WITNESS WHEREOF the parties hereto have set their respective hands on the day and year first above written.

                 SIGNED and DELIVERED by the                    )      Sd/-
                 within - named Lessors in the                  )






 Dinesh Sherla                                                                    judgment-wp-915-97



                 presence of:-
                 1.    sd/
                 2.    sd/-
                 SIGNED and DELIVERED by the        )     Sd/-
                 within - named Lessee in the       )
                 presence of:-
                 1.    sd/-
                 2.    sd/-
                  
         20]     The agreement, execution  of  which is now admitted by the 

plaintiffs, in its recital states that the defendants are the owners of

one storey building bearing House No. 19 situated at Ranwar,

Waroda Road, Bandra. One Ignatius John Fonseca was the tenant of

the entire house. George Gonseca, the predecessor-in-title of the

plaintiffs was sub-tenant of tenant Ignatius Fonseca in respect of

only a portion of ground floor, paying monthly rent of Rs.22/-. In the

the recital, the expression used is "only on a portion of the ground

floor of the said house".

21] The agreement dated 11th November 1953, further recites that

the defendants issued notice to Ignatius Fonseca to vacate the

tenanted premises, as the defendants required the premises bona

fide and reasonably for their own use and occupation. Thereupon

Ignatius Fonseca surrendered the possession of the 1 st floor of the

house and went to reside in his own house at Bandra. Thereafter an

arrangement was arrived at between the defendants and George

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Fonseca, to continue his tenancy of George Fonseca on the ground

floor on certain terms and conditions. It is important to note that the

recitals do not refer to "entire ground floor" Mr. Menezes, learned

counsel for the plaintiffs is therefore, not right in his submission that

the recitals to the agreement make out a case of plaintiffs' tenancy to

the entire ground floor of the house.

22] Clause 1 of the agreement dated 11 th November 1953

describes the tenanted premises on the ground of the said house so

as to consist of one Hall, one dining room, one bed room and a

kitchen. There is no dispute that the sketch at Exhibit-2 represents

the true and correct sketch of the ground floor. In the sketch, the

Hall and dining room are included in the areas marked as (1),(2)

and (4), bedroom is marked as (3) and the kitchen along with the

Lavatories/bath rooms therein are marked as (5). In the sketch,

there is a ladder indicated in rooms marked as (2) and (5). Even the

plaintiffs have admitted that the ladder in room No.2 is the only

ladder by which the defendants can access the 1 st floor of room of

which they are owners and occupies. Therefore, even the plaintiffs,

in the reliefs applied for them, had not applied for any injunction to

restrain, the defendants from ingress and egress through the Hall

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upto the ladder which leads to 1 st floor of the house. Learned

counsel for the parties also made it clear that such ingress and egress

is permitted / not obstructed, so that the defendants have access to

the 1st floor, which they admittedly own and occupy.

23] Clause 2 of the agreement, however, provides that both the

plaintiffs and defendants have joint and common and amicable use

of the kitchen, lavatory and bathroom without any let and hindrance

from any of them. This is obviously has reference to room No.5 in

the sketch at Exhibit2. As noted earlier, room No.5 depicts the

kitchen, lavatories and bathrooms on the ground floor. Significantly,

there is also a ladder indicated in Room No.5, which leads to first

floor. However, Mr. Amogh Singh, learned counsel for the

defendants, contends that the ladder indicated in Room NO.5 was

for the use of sweepers and other menial staff, since, the same is

quite steep and not useful for the family members of the defendants

to access the kitchen and lavatories. Mr. Singh submits that there is

oral evidence on record to this effect.

24] DW-2 Mrs. Leena P. Henriques, who is one of the signatories to

the agreement dated 11th November 1953 has deposed on behalf of

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the defendants and Mr. Amogh Singh is right that the evidence of

DW-2 Mrs. Leena Henriques is required to be given due credence,

particularly since the plaintiffs had even denied the execution of

agreement dated 11th November 1953. Mr.Amogh Singh is also right

in his submission that the Appeal Court has virtually ignored the

evidence of DW-2 Mrs. Leena Henriques in the matter of

interpretation of the clauses of agreement dated 11 th November

1953. The virtual non-consideration of relevant and vital piece of

evidence is also a species of perversity.

25] The reasoning of the Appeal Court that clause '2' of the

agreement dated 11th November 1953 signifies a licence created by

the plaintiffs, who are themselves claiming rights of tenancy, in

favour of defendants, who are admittedly the owners and the

landlords of the entire house, including the ground floor premises,

is, in the facts and circumstances of the present case, very difficult to

accept. Such a reasoning or interpretation, virtually amounts to

ignoring not only the express terms of the documents but amounts

to re-writing the contract between the parties. Such an exercise is

clearly impermissible and to that extent, Mr. Amogh Singh is right

that the Appeal Court has exceeded the jurisdiction vested in it.

 Dinesh Sherla                                                                     judgment-wp-915-97



         26]     Rather, upon harmonious construction of clauses 1 and 2 of 

the agreement dated 11th November 1953, coupled with the oral

evidence of DW-2 Mrs. Leena P. Henriques, which the Appeal Court

has virtually ignored, it is quite clear that the tenancy of the

plaintiffs was confined to Hall, dining room and the bedroom, which

is indicated in numbers 1,2,3 and 4 in sketch at Exhibit-2. Further,

notwithstanding such tenancy, the plaintiffs, were not entitled to

restrain the ingress and egress of the defendants through the

Hall/dining room marked in the sketch as 1 and 2 to the defendants

to access ladder for the 1st floor, which is admittedly, owned and

occupied by the defendants.

27] Insofar as the kitchen, lavatories and bathrooms in the room

indicated under No.5 in the sketch at Exhibit-2, it is clear that no

right of tenancy was created by the defendants in favour of the

plaintiffs, but both the plaintiffs as well as defendants were

conferred unqualified rights to the joint, common and amicable use

of the kitchen, lavatories and the bathroom on the ground floor

without any let and hindrance from any of them. Clauses 1 and 2 of

the agreement have to be interpreted harmoniously. Besides,

reference is also required to be made to the recitals, which, assist in

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the resolution of ambiguities. In this case, the recitals very

specifically militate against tenancy of the entire ground floor.

Further, the express wordings of clause 2 and the deposition of DW-2

Mrs. Leena P. Henriques very clearly tilts the weight of evidence

towards declaring the plaintiffs as tenants in respect of Hall, dining

room and bedroom, i.e., areas marked under 1,2, 3 and 4 of sketch

at Exhibit-2, subject to the rider of ingress and egress. The Appeal

Court has exceeded jurisdiction in declaring the plaintiffs tenants in

respect of kitchen, lavatories and bathroom on the ground floor, i.e.,

the portion marked under No.5 in the sketch at Exhibit-2. The denial

of such declaration, however, does not mean the the plaintiffs will

not have any right to the use of kitchen, lavatories and the

bathrooms indicated under No.5 in the sketch at Exhibit-2. All that

this means is that the plaintiffs cannot claim any tenancy to the said

portion and further, the plaintiffs will have to use the said portion

jointly and in common with the defendants. To that extent, the

decree made by the Appeal Court warrants modification.

28] Further, it is also necessary to clarify that the evidence on

record does not suggest that the defendants can access the kitchen,

lavatories, bathroom, i.e., the portions indicated under No.5 in the

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sketch at Exhibit-2 through the Hall or dining room as urged by

Mr.Amogh Singh. The defendants, will have to access this portion

through the ladder which is indicated in the portion indicated under

No.5 in sketch at Exhibit-2. On the basis of material on record, it is

not possible to accept that the said ladder in room No.5 was meant

only for the use of sweeper and menial staff. If the access is to be

permitted through Hall/dining room, then, it is possible, as

contended by Mr. Menezes that the defendants will deprive the

plaintiffs of privacy altogether. In any case, conferment of any such

right would be in excess of what was contemplated by the

agreement dated 11th November 1953, upon which, the defendants

themselves place reliance. If, the ladder in room No.5 is too steep,

nothing prevents the defendants, who are admittedly, the owners of

entire house, to provide a different or more convenient ladder.

However, there is no question of permitting the defendants to access

the kitchen/lavatories/bathroom through the portion marked as

1,2,3 and 4 in the sketch at Exhibit-2. Further, the material on record

does indicate two separate shelves in the kitchen, which is consistent

with what is set out in clause 2 of the agreement dated 11 th

November 1953.

 Dinesh Sherla                                                                  judgment-wp-915-97



         29]     Accordingly,   the   impugned   judgments   and   decrees   made   by 

the Small Causes Court and the Appellate Bench of the Small Causes

Court are modified. R.A.D. Suit No. 4363 of 1985 instituted by the

plaintiffs is decreed in the following terms:

a] The plaintiffs are declared as tenants in respect of the

portion on the ground floor indicated under Nos.1,2,3 & 4 in

the sketch at Exhibit - 2, in respect of which, they are entitled

to protection under Bombay Rent Act. They are also entitled to

get receipts in the name of Dominic G. Fonseca, in respect of

such portion of ground floor of the said House No.19 (8-C),

Ranwar, Bandra, Bombay-400 050;

b] The plaintiffs and defendants, consistent with clause 2

of the agreement dated 11th November 1953 are entitled to

joint, common and amicable use of the kitchen and lavatories

and bathroom, i.e., portion indicated under No.5 in the sketch

at Exhibit-2, without any let and/or hindrance from each

other;

c] The defendants are restrained by way of injunction from

interfering with or dispossessing the plaintiffs from the portion

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of the ground floor indicated in sketch at Exhibit-2, otherwise

than by due process of law. Such injunction shall, however, not

affect the right of defendants to ingress and egress to the 1 st

floor premises owned and occupied by them. Such access shall

be from the ladder indicated in room No.2 in the sketch at

Exhibit-2. Further, such injunction shall not affect the joint

rights of the defendants to the use of kitchen, lavatories and

bathroom in the portion indicated under No.5 in the sketch at

Exhibit-2. However, the defendants, shall access the portion

indicated under No.5 only from the ladder in room No.5.

Further, the defendants, shall be entitled to replace the ladder,

if the existing ladder is too steep or otherwise inconvenient for

their use;

d] The Small Causes Court to draw out a decree in terms of

the aforesaid within a period of two months from today.

30] Rule is made partly absolute in the aforesaid terms. There

shall however, be no order as to costs.

         31]     Certified copy is expedited.

                                                               (M. S. SONAK, J.)