Bharat Petroleum Corporation ... vs Sai Music House Private Limited
2023 Latest Caselaw 8053 Bom

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                                                          23 - CRA 322 OF 2022.doc


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
      CIVIL REVISION APPLICATION NO. 322 OF 2022
                       ALONGWITH
         INTERIM APPLICATION NO. 10353 OF 2022
                             IN
      CIVIL REVISION APPLICATION NO. 322 OF 2022
Bharat Petroleum Corporation Limited ..... Applicant

        VERSUS

Sai Music House Private Limited                      ..... Respondents

Mr.Atul Damle, Senior Advocate a/w. Mr.Roop Basu, Ms.Heenal
Desai-Wadhwa i/b. The Law Point for the Revision Applicant.
Mr.Vijay Thorat, Senior Advocate a/w. Mr.Sandeep Sharma, Ms.Aastha
Golecha i/b. Mr.Anil Rao for the Respondent No.1.
                                       CORAM: ABHAY AHUJA, J.

DATE : 9th AUGUST, 2023

P.C:-

This revision application impugns two decisions : of the Trial

Court as well as of the Appellate Bench of the Small Causes Court

pursuant to which the revision applicant has been evicted. This Court

on 16th November, 2022 passed the following order :-

1. The applicant/tenant suffered a eviction decree. The Appellate Court confirmed the same. As such, this revision against the concurrent findings.

2. The applicant/tenant has sought to rely on the provisions of subsection 2 of section 5 of Burmah Shell Act so also the terms of Pump Site Lease document

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which is executed on 10/02/1965.

3. Mr. Damle, learned senior counsel would urge that the statutory option of renewal after the expiry of lease period which was exercised by addressing the communication to the erstwhile owner of the property, however, the said document was not produced and as such was not exhibited. As such, he has taking out application under Section 151 of the CPC.

4. Apart from above, the document of Pump Site Agreement, which is found to be the basis for making out a case in the present revision, is not readable.

5. Mr. Damle, learned senior counsel for the applicant has also relied on the pleadings in the earlier suit being T.E. & R. Suit No. 488/515 of 2001, so as to substantiate his claim that the fact about the issuance of lease renewal communication issued and the option was exercised by the applicant.

6. I am afraid that the said submissions cannot be accepted in the case in hand particularly when the said issue was not put to the witnesses of the respondent when the suit in question was conducted and as such, the said issue cannot be considered to the benefit of the applicant.

7. At this stage, Mr. Damle submits that he be granted time to address on the issue that the provisions of Section 151 of CPC can be invoked even in the revisional jurisdiction.

8. Stand over to 23/11/2022.

2. Mr.Damle, learned senior counsel for the revision applicant

would submit that both the Courts were swayed in favour of the

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respondent on the ground that the communication dated 20 th April,

1993 seeking renewal of the original lease term pursuant to section 5(2)

of the Burmah Shell Act was not proved in as much as the copy of the

same was not produced.

3. Mr. Damle, learned senior counsel for the applicant has drawn

the attention of this Court to paragraph (14) of the plaint to submit that

the respondent themselves had referred to this communication and also

exhibited the same in the plaint with respect to an earlier suit which

was dismissed for default.

4. Learned senior counsel would submit that even further cross-

examination of Shri Vinod Dhanuka (PW-2) refers to the said

communication and that the said cross-examination clearly states that

there is a reference to the said communication in paragraph (14) of the

plaint and that it was not true to say that the said communication was

not been produced as the contents of the said letter would go against

the applicant.

5. Mr.Damle, learned senior counsel would submit that if this

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communication is allowed to be brought on record and considered the

decision of the two Courts would be in favour of the revision applicant.

6. On the other hand Mr.Thorat, learned senior counsel for the

respondent vehemently opposes the submissions made on behalf of the

revision applicant and submits that since the renewal under the statute

is not automatic even if the said communication was taken into

account, there would be no renewal in as much as the person to whom

the communication was addressed was admittedly not in existence,

having expired in the year 1983. Learned senior counsel would submit

that besides, the said communication has not even been served upon

the Respondent as there is no acknowledgment of the same. It has not

even been referred to in the reply to the notice of eviction.

7. Learned senior counsel would submit that this is simply a last

ditch effort to cure the defect. He also submits that the conduct of the

Corporation of the stature of BPCL does not support the case of the

revision applicant as the renewal in any event is not automatic.

8. Learned senior counsel would submit that therefore there is no

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prima facie case made out. He also refers to the order dated 16 th

November, 2022 of this Court and draws the attention to paragraph (6)

thereof to submit that the revision application therefore ought to be

dismissed as the revision applicant has not addressed the Court on the

provisions of section 151.

9. I have heard learned senior counsel at some length. There is no

doubt that the said communication dated 20th April, 1993 was not

produced before the two courts or even proved. This Court by an order

dated 16th November, 2022 had granted time to the revision applicant to

address the Court on the provisions of section 151 of the Code of Civil

Procedure, 1908 and whether the same could be invoked in the

revisional jurisdiction.

10. This Court is therefore of the view that the interests of justice

would be served if the issues that have been vehemently argued today

are considered finally at the stage of admission.

11. Accordingly list the revision application for final disposal at the

stage of admission on 6th September, 2023 at 2.30 p.m.

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12. Liberty to circulate brief propositions and judgments in support.

[ABHAY AHUJA, J.]