Ajitsing Nirh vs M/S S. D. Associates Through Its ...
2022 Latest Caselaw 7893 Bom

                                                                             960.wp.5560.22.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO. 5560 OF 2022

         Ajitsing Nirh
         Age : 70 years, Occu : Business
         R/o : Osmanpura, Aurangabad
         Tq. and Dist. Aurangabad                                 ... PETITIONER

                 VERSUS

         M/s. S.D. Associates,
         through its Partners firm

     01. Vitthal Ganpat Sahane
          Age : 47 years, Occu : Business
          R/o : Bhagatsing Nagar, Aurangabad

     02. Prajjwal Ramhari Dapurkar,
         Age : 43 years,Occu : Business,
         R/o : Disha Sanskrati Aurangabad                         ... RESPONDENTS

                                       ...
                  Mr. Atul M. Karad, Advocate for the petitioner
          Mr. S.B. Deshpande, Advocate for the respondents no. 1 and 2
                                       ...

                                    CORAM           : MANGESH S. PATIL, J.
                                    Reserved on     : 21.07.2022
                                    Pronounced on   : 12.08.2022
JUDGMENT :

Heard. Rule. Rule is made returnable forthwith. Learned

advocate Mr. S.B. Deshpande waives service for the respondent Nos.1 and 2.

At the joint request of the parties, the matter is heard finally at the stage of

admission.

2. The petitioner is the original defendant. He is aggrieved by the

decision of the lower appellate court in an appeal preferred by the

960.wp.5560.22.odt

respondents (plaintiffs) under Section 104 read with Order XLIII of the Code

of Civil Procedure, allowing it, reversing the order of the trial court rejecting

their application for temporary injunction and restraining him from

obstructing and interfering their peaceful possession in the suit property.

3. There is not much of dispute on facts except the facts regarding

alleged termination of the leave and licence agreement entered into between

the parties, whereby, the petitioner had permitted the respondents to use the

suit property, and the fact of actual possession.

4. The learned advocate Mr. Karad for the petitioner would submit

that though there is no dispute about the petitioner having permitted the

respondents to use the suit property on leave and licence basis, it has been

his specific stand that the respondents were not in actual possession of the

suit property and no injunction could have been granted in their favour

more so when the trial court had refused to exercise the discretion vested in

it and which order, in the facts and circumstances of the case, was clearly

pointed out that the trial court had taken a plausible view and it was not

perverse or arbitrary. The lower appellate court had limited jurisdiction

while deciding an appeal under Section 104 read with Order XLIII of the

Code of Civil Procedure. The lower appellate court was not justified in

substituting its own views.

5. Mr. Karad would submit that since it was merely a leave and

licence agreement, the question was merely of user of the suit property. Its

possession in law would continue to be with the petitioner. The lower

960.wp.5560.22.odt

appellate court ought not to have held the respondents to be in settled

possession. There was ample material demonstrating that though the

licence was registered in 2017, in fact it was brought in existence on

03.06.2015 and the tenure was seven years. Even the respondent's licence

issued by the Food and Drug Department was issued on 09.09.2015. They

had voluntarily closed down the business and vacated the suit property and

had abandoned the licence. The entire structure was thereafter removed

and a new commercial complex was constructed in its place in February

2021 even before the suit was filed thereby completely changing the

structure. They were in huge arrears of licence fees and the other charges to

the tune of Rs.15,00,000/-. After long persuasion and in lieu of premature

abandonment, after negotiation an amicable settlement was arrived at.

They issued a cheque for an amount of Rs.5,12,730/- towards full and final

settlement of all the arrears. But the cheque was not honored. Thereafter

they vacated the suit property on 23.01.2021 by taking away all their

belongings which fact was witnessed by couple of persons one of whom was

an employee of the respondents. In view of such ample material the trial

court had refused to grant temporary injunction. Without their being

sufficient and cogent reasons, the lower appellate court has caused

interference and has illegally reversed the order.

6. Mr. S.B. Deshpande for the respondents submits that admittedly

the respondents were in occupation of the suit property since long. They

had never surrendered the lincence. A blank cheque issued to the petitioner

960.wp.5560.22.odt

was misused. The licence was never legally terminated and it was prima

facie proved that the respondents were in occupation of the suit property.

The petitioner had with the help of gundas drove the respondents away

from the suit property and locked it. A police complaint was also lodged.

All these circumstances were overlooked by the trial court. The decision was

perverse, arbitrary and capricious and the lower appellate court has rightly

exercised the jurisdiction in reversing the decision.

7. I have carefully considered the rival submissions, perused the

orders of the two courts below and the papers. For the present it is

sufficient to bear in mind the fact that there is no dispute that the petitioner

is the owner of the suit property and handed over its occupation to the

respondents under a leave and licence agreement which was registered in

the year 2017. Irrespective of the dispute as to the actual date of

commencement of such agreement the fact remains that the term of the

licence was seven years. Assuming that it was executed on 03.06.2017 even

then the period of seven years has expired on 02.06.2022.

8. If it was a leave and licence agreement as distinct from a lease,

being the owner, the petitioner must be regarded as in possession de jure.

Only the right to occupy and use the suit premises was given to the

respondents and irrespective of any other circumstance, by passage of time,

the right of the respondents, may be to occupy and use the suit property, has

come to an end. In my considered view, therefore, irrespective of any other

factor, this circumstance itself is sufficient to hold that the respondent's right

960.wp.5560.22.odt

to occupy and use it has seized by efflux of seven years from the date of

agreement which is 03.06.2017 and consequently the petitioner would be

entitled to possess it.

9. True it is that the suit was filed on 23.01.2021. However, since

it is a matter of leave and licence as distinguished from lease, the

respondents cannot be said to have any right, title or interest qua the suit

property which can be protected.

10. As a corollary, even if it is assumed for the sake of arguments

that the leave and licence agreement was not legally terminated when the

suit was filed, it has lived its life to the fullest by now, bringing at naught

whatever rights the respondents had on the date of the suit.

11. As laid down in catena of judgments including decision in the

matter of Wander Ltd. and Ors. Vs. Antox India Pvt. Ltd.; 1990 (2) ARBLR

399 (SC) the powers of the lower appellate court in an appeal preferred

under Section 104 read with Order XLIII of the Code of Civil Procedure are

circumscribed by several limitations. It is only when the order of the trial

court is perverse, arbitrary or capricious that the lower appellate court

would get a jurisdiction to cause any interference. If such were the

limitations on the powers of the lower appellate court, it was imperative for

the learned District Judge to have, even before undertaking any fresh

scrutiny of facts, demonstrated with reasons as to which of the observations

and the conclusions of the trial court were perverse, arbitrary or capricious.

It appears that the lower appellate court had got swayed away by the

960.wp.5560.22.odt

alleged circumstance, which was still to be proved, regarding filing of the

police complaint by the respondents in respect of the alleged act of the

petitioner to forcibly putting up a lock to the suit property which was a pure

question of fact still to be established. Pertinently, in the absence of any

extension of the leave and licence agreement, the lower appellate court less

than a month before its expiry that is on 04.05.2022 has passed the

impugned judgment and order. In spite of the fact that the decision in the

matter of Wander Ltd. (supra) was brought to his notice, he has not

objectively demonstrated as to how the order of the trial court could have

been discarded as illegal and arbitrary refusal to exercise the discretion.

12. The lower appellate court has relied upon the decision in the

matter of Rame Gowda (dead) by L.Rs. Vs. M. Varadappa Naidu (dead) by

L.Rs. and Anr.; AIR 2004 SC 4609 to justify his conclusion that a person in

settled possession cannot be dispossessed except by following due process of

law. But then, in the process, the lower appellate court has overlooked the

distinction between a lease and licence. Pertinently, the trial court had

precisely for this reason refused to recognize respondents alleged possession

as a settled possession.

13. True it is that the trial court could not have attributed admission

by the respondents about having lost possession merely on the basis of the

fact that even according to them they were driven out from the suit property

which was thereafter locked by the petitioner. But then except the

agreement of leave and licence and filing of this complaint with the police,

960.wp.5560.22.odt

no tangible material was placed on record to substantiate the factum of

Respondents' possession in the suit property and none has been referred to

by the lower appellate court. Meaning thereby that the lower appellate

court simply by relying upon these two factors has found the respondents

entitled to temporary injunction, which for the plausible reasons assigned by

the trial court, had not found favour with it.

14. Assuming that the order passed by the trial court was erroneous

still, it was not sufficient for the lower appellate court to undertake a fresh

scrutiny. When the trial court had refused to exercise the discretion which

order was not perverse, arbitrary or capricious the lower appellate court had

no jurisdiction to substitute its own discretion by undertaking a fresh

scrutiny.

15. The judgment and order under challenge is illegal and is liable

to be quashed and set aside.

16. The Writ Petition is allowed. The impugned judgment and

order of the lower appellate court is quashed and set aside and the one

passed by the trial court is restored.

17. Rule is made absolute.

(MANGESH S. PATIL, J.)

habeeb