Bombay High Court
Dilip Shankar Borhade And 3 Ors vs Naresh Kumar Sukhdev Dubey And Anr on 28 November, 2023
Author: Abhay Ahuja
Bench: Abhay Ahuja
2023:BHC-OS:13740
S-488-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.488 OF 2017
WITH
INTERIM APPLICATION NO.594 OF 2020
IN
SUIT NO.488 OF 2017
DILIP SHANKAR BORHADE AND ORS. )...PLAINTIFFS
V/s.
NARESH KUMAR SUKHDEV DUBEY (deceased) )
SMT. INDU NARESH KUMAR DUBEY AND ORS. )...DEFENDANTS
Mr.Pradeep J. Thorat and Ms.Aditi Naikare, Advocate for the Plaintiffs.
Mr.S.K.Dhekale, Court Receiver, present in Court.
Mr.Dilip S. Borhade, Witness Plaintiff No.1, present in Court.
CORAM : ABHAY AHUJA, J.
DATE : 28th OCTOBER 2023
P.C. :
1. This suit had been listed for ex-parte decree on 14th September
2023. However, as the Court needed certain clarifications with respect
to the date of filing of the suit, the prayers, present possession of the
suit premises and the original documents, it has been listed for
directions today.
avk 1/23
S-488-2017.doc
2. Mr.Pradeep Thorat, learned Counsel for the Plaintiffs, would
submit that originally this suit was filed in the Small Causes Court on
16th April 2015, however, since the agreement involved was a
conducting agreement, it was later on transferred to the City Civil
Court, and thereafter, in view of pecuniary jurisdiction, it was
transferred to this Court on 23 rd June 2017 for a decree of permanent
injunction directing the Defendants to quit, vacate and hand over quiet,
vacant and peaceful possession of the part of hotel premises being Part
of M/s. Hotel Lake Site Guru Vihar, admeasuring about 5550 sq.feet out
of 10,000 sq.feet with the licenses, permits, orders and fixtures, fittings,
furniture and articles as detailed under Annexure to the Agreement
consisting of (i) Ground floor with (a) Non A.C. area-550 sq.feet, (b)
A.C. area-1100 sq.feet, (c) kitchen - 400 sq.feet, (d) office and two
store rooms - 300 sq.feet and (ii) First Floor with (a) Party Hall - 1200
sq.feet, (b) Terrace area - 2000 sq.feet lying and being at Survey No.1,
C.T.S.No.8 of Village Paspoli, Taluka Kurla, Mumbai Suburban District
situated at Morarji Nagar, Vihar Lake Road, Post - NITEE, Powai,
Mumbai - 400 087, to the Plaintiffs, for directing the Defendants to pay
arrears of monthly compensation and other legal dues as per
Statement of Claim at Exhibit "L" totalling to Rs.32,10,203/- from
15th October 2013 till 31st March 2015 to the Plaintiffs and for a
avk 2/23
S-488-2017.doc
direction to pay mesne profits at Rs.2,00,000/- per month in respect of
the part of hotel premises from the date of filing of the suit till handing
over actual and physical possession to the Plaintiffs.
3. The case of the Plaintiffs is as under :
(i) Plaintiffs are the licensors being owners and landlords being
entitled to the right, title and interest in respect of the premises
being M/s. Hotel Lake Site Guru Vihar, a Hotel, lodging, eating
house and permit room having total area admeasuring about
10,000 sq.feet or thereabout, consisting of Ground floor plus one
upper floor having 27 rooms for lodging and restaurant cum bar
lying and being at Survey No.1, C.T.S.No.8 of Village Paspoli,
Taluka Kurla, Mumbai Suburban District situated at Morarji Nagar,
Vihar Lake Road, Post - NITEE, Powai, Mumbai - 400 087
(hereinafter referred to as the said "Hotel premises"), where
statedly they were carrying on and conducting business of hotel,
lodging, eating house and permit room under the valid orders,
permits and licenses issued by the Competent Authorities.
(ii) In the month of September 2013, the original Defendant
approached the Plaintiff no.1 and expressed his interest in running
avk 3/23
S-488-2017.doc
the hotel business in part of the said hotel premises admeasuring
about 5550 sq.feet along with the fixture, fittings and furniture
consisting of (i) Ground floor with (a) Non A.C. area-550 sq.feet,
(b) A.C. area-1100 sq.feet, (c) kitchen - 400 sq.feet, (d) office and
two store rooms - 300 sq.feet and (ii) First Floor with (a) Party
Hall - 1200 sq.feet, (b) Terrace area - 2000 sq.feet lying and
being at Survey No.1, C.T.S.No.8 of Village Paspoli, Taluka Kurla,
Mumbai Suburban District situated at Morarji Nagar, Vihar Lake
Road, Post - NITEE, Powai, Mumbai - 400 087 (hereinafter
referred to as the "part of the said hotel premises") and the
Plaintiffs and the original Defendant entered into, signed and
executed Agreement dated 15th October 2013 for a period of 28
months commencing from 15th October 2013 and expiring on 31 st
January 2016, along with the details of Articles as per annexure to
the said Agreement in respect of the part of said hotel premises.
Thereupon, the Plaintiffs handed over the actual, physical and
lawful possession of the part of the said hotel premises
(hereinafter referred to as the "suit premises") to the original
Defendant in terms of the said Agreement.
avk 4/23
S-488-2017.doc
(iii) The Plaintiffs handed over the following original licenses, standing
in the name of the Plaintiffs to the original Defendant at the time
of handing over possession of the suit premises for carrying on
said business of bar and restaurant in the suit premises :
(a) Police eating Licenses renewed upto date
(b) Police Bar and Restaurant licenses
(c) Food and Drug licenses
(d) Shop and Establishment Licenses
(e) M.M.C. Bar and Restaurant Licenses
(f) M.M.C. Eating House Licenses
(g) M.M.C. Grade-I and
(h) Excise P.P.L.
(iv) Under the said Agreement, the original Defendant agreed to pay to
the Plaintiffs the following amounts :
(a) Rs.5,00,000/- as and by way of security deposit which was paid by
cheque as detailed under Term 3 of the said Agreement
(b Rs.1,00,000/- per month as and by way of license fee/monthly
compensation payable on or before 10th day of each calendar
month
avk 5/23
S-488-2017.doc
(c) 10% increase of amount in monthly compensation after
completion of every 12 months
(v) For the specific performance of the terms and conditions of the
said Agreement, the Defendant had issued two cheques bearing
no.132421 dated 12th November 2013 for sum of Rs.2,00,000/-
and cheque bearing no.132422 dated 31st October 2013 for sum of
Rs.3,00,000/- for the realization as and by way of security deposit
amount.
(vi) It was agreed upon by and between the Plaintiffs and the original
Defendant that upon non-compliance of the terms of the said
Agreement and non-payment of monthly compensation for six
consecutive months by the Defendant, the Plaintiffs would be at
liberty to terminate the said Agreement after giving 30 days' prior
notice to the Defendant and upon expiry of the said notice, the
said Agreement shall be deemed to have been terminated or stood
cancelled as per the Term No.16 of the said Agreement.
(vii) The above referred two cheques, when deposited, it is submitted
were dishonoured for the reason of "Payment stopped by drawer"
and "Insufficient funds". This was the first incident as well as the
avk 6/23
S-488-2017.doc
first default committed by the Defendant. Thereafter, although the
plaintiffs paid the stamp duty and fixed the time, date and place
for getting the said Agreement registered with the office of Sub-
Registrar of Assurances, the original Defendant neither attended
the office of the Sub-Registrar nor made any efforts to get the
same registered. Exhibit A to the plaint is the copy of the said
Agreement along with stamp duty affixed thereon. The original
Defendant also failed to pay the monthly compensation as agreed
upon under the said Agreement for the suit premises from October
2013 amounting to Rs.4,00,000/- upto the month of January 2014
being the arrears of compensation. The Plaintiff withdrew a sum
of Rs.2,00,000/- accrued out of the credit card customers from the
bank account of the establishment, resulting in reduction of
arrears of monthly compensation totalling to Rs.2,00,000/-.
(viii)It is submitted on behalf of the Plaintiffs that the Plaintiff no.1
repeatedly contacted the Defendant and requested him to make
the payment of deposit amount and also arrears of monthly
compensation. However, the Defendant neither co-operated nor
complied with the requisitions and therefore the Plaintiffs were
compelled to issue legal notice. But the Defendant did not
avk 7/23
S-488-2017.doc
intentionally accept the said legal notice and the same was
returned with the remark "unclaimed". That, in the said notice,
the Defendant was called upon to make payment of Rs.5,00,000/-
as and by way of security deposit and to fix the time for the
registration of the Agreement. The Defendant was also called
upon to pay arrears of compensation of Rs.2,00,000/- from
October 2013 to January 2014 but the same was also neither
complied with nor replied to. Learned Counsel mentions that the
originals of the postal slips, returned packet of the legal notice
have been misplaced as there was demolition of part of the hotel
premises by the Mumbai Municipal Corporation in respect of
which police complaint has also been lodged regrading the loss of
the original documents.
(ix) Due to the non-compliance of the said notice, the Plaintiffs issued
another legal notice dated 7th March 2014 which has been duly
received by the Defendant. The Plaintiffs further called upon the
Defendant to get the excise license renewed and also arrears of
water charges of Rs.3,00,000/- and that in default of renewal of
the excise license by the Defendant, the Plaintiffs would sustain
losses of Rs.18,00,000/- due to fault of the Defendant.
avk 8/23
S-488-2017.doc
(x) That, a reply dated 18th March 2014 was issued by the Defendant
after which there was a call by the Advocate for the Defendant,
that the Defendant was to resolve the disputes and differences.
Thereafter, a meeting was fixed on 30 th March 2014 and the
minutes have been recorded in handwriting duly signed by the
Plaintiff no.1 and the Defendant and witnessed by their Advocates.
However, it is submitted that the Defendant never acted upon the
same, and therefore, it is not binding on the Plaintiffs.
(xi) It is further submitted that, on receipt of the reply dated 18 th
March 2014 by the Plaintiffs, the Defendant's Advocate as also the
Defendant himself, called the Plaintiffs and informed that the
Defendant was interested in resolving the dispute and differences
in the presence of their Advocates. That, accordingly, a meeting
took place on 30th March 2014, minutes of which were recorded in
handwriting duly signed by the Plaintiff no.1 and the Defendant
and witnessed by their Advocates with their signatures in the
nature of the agreed terms and conditions.
(xii) It is submitted that although the Defendant, agreed upon the
terms and conditions in the minutes of the meeting dated 30 th
avk 9/23
S-488-2017.doc
March 2014, the Defendant never acted upon the same and/or
never complied with the same.
(xiii)It is submitted that as the Defendant failed to comply with the
terms recorded in the meeting dated 30 th March 2014, the
Plaintiffs again issued a notice dated 23rd June 2014 through their
Advocate, as and by way of rejoinder to the Defendant's reply
dated 18th March 2014 denying the allegations and contentions
made by the Defendant in the said reply.
(xiv)In the said notice cum rejoinder dated 23 rd June 2014, the
Plaintiffs called upon the Defendant to pay the monthly
compensation at Rs.1,00,000/- from October 2013 to June 2014
as per the terms of the said Agreement along with the interest at
the rate of 18% thereof and to pay all the electricity charges,
water charges and other outgoings in terms of the said Agreement.
Vide the said notice cum rejoinder dated 23 rd June 2014, the
Plaintiffs also called upon the Defendant to vacate and hand over
the possession of the suit premises along with all the articles and
belongings as per the list attached thereto, within a period of 30
days from the receipt of the rejoinder, failing which, the Plaintiff
avk 10/23
S-488-2017.doc
would take legal action against the Defendant. The said notice
cum rejoinder dated 23rd June 2014, it is submitted, was duly
received and acknowledged by the Defendant.
(xv) It is submitted that after about fifteen months of taking over the
possession of the suit premises by the Defendant from the
Plaintiffs, the Defendant issued a notice dated 12 th December 2014
through his Advocate and came up with absolutely new statements
pertaining to the payment of cash amount and false statements
and accusations which, it is submitted, were absolutely
contradictory to the earlier correspondence. On receipt of the said
notice, the plaintiffs sent a reply dated 6th January 2015 to the
Defendant with a copy thereof to the Advocate for the Defendant,
denying therein allegations as false made by the Defendant and
called upon the Defendant to withdraw the same unconditionally,
which reply it is submitted has been duly received and
acknowledged by the Defendant and his Advocate.
(xvi) Thereafter, since the Defendant failed to comply with the terms
recorded in the meeting, the Plaintiffs issued notice dated 23 rd
June 2014 which was also by way of rejoinder to the reply dated
avk 11/23
S-488-2017.doc
18th March 2014. The Plaintiffs called upon the Defendant to pay
monthly compensation of Rs.1,00,000/- from October 2013 to
June 2014 along with interest at the rate of 18% as well as pay the
electricity charges, water charges and other out goings under the
Agreement. That, the Plaintiffs called upon the Defendant to
vacate and hand over possession of the suit premises along with
all the articles and belongings within thirty days of the receipt of
the said notice/rejoinder.
(xvii) That, despite the receipt of the said notice, instead of complying
with the same, after a lapse of about fifteen months of taking
possession of the suit premises, the Defendant issued notice dated
12th December 2014 through his Advocate. The Plaintiffs have
replied to the aforesaid notice of the Defendant on 6th January
2015 denying the contentions. Despite receipt of the same, the
Defendant has not complied with the requisitions including notice
to withdraw the allegations unconditionally. Learned Counsel
submits that the contents of the said notice by the Defendant are
self created and afterthought with a view to extort money from
the Plaintiffs. That, therefore, by reply dated 6th January 2015,
the Plaintiffs communicated to the Defendant that they were not
avk 12/23
S-488-2017.doc
interested in continuing the Agreement which was already
revoked, cancelled and terminated and the Plaintiffs were also not
agreeable for deduction of monthly compensation. It is submitted
that as per the Statement of Accounts prepared by the Plaintiffs,
the Defendant is liable and responsible to make payment of
arrears of Rs.32,20,605/- payable by the Defendant to the
Plaintiffs till 31st March 2015 and that by the said notice dated 6 th
January 2015, the Plaintiffs have called upon the Defendant to
hand over quiet, vacant and peaceful possession of the suit
premises within thirty days from the receipt of the reply. The
Defendant has, however, neither paid the amounts of arrears nor
handed over actual and physical possession of the suit premises to
the plaintiffs, till date.
(xviii)The Plaintiffs have also lodged complaint against the Defendant
under Sections 506 and 507 of the Indian Penal Code, 1860 (IPC)
on 8th December 2014 and also on 16 th December 2014 under
Sections 504 and 506 of the IPC for the offences committed by the
Defendant.
(xix)That, as the Defendant failed to comply with the terms of the
leave and license agreement and with the requisitions of the legal
avk 13/23
S-488-2017.doc
notice dated 23rd June 2014 and reply dated 6th January 2015,
which according to the Plaintiffs has continued till the filing of the
suit, the Plaintiffs have filed the present suit on 23 rd June 2017
which is within limitation.
(xx) That, the Plaintiff no.1, who is husband of Plaintiff no.2 and
father of Plaintiffs no.3 and 4 and is well conversant and aware
with all the facts and details of the suit premises and transaction
recorded in respect of the suit premises, the Plaintiffs no.2 to 4,
due to their personal difficulties and inconvenience since are not
in a position to attend this Court, have signed, executed and
notarized the General Power of Attorney in respect of the present
suit to look after and manage all the affairs and to act upon all the
powers and authorities mentioned therein.
4. On 13th November 2017, when the matter appeared on the
board, the Defendant sought two weeks time to file Vakalatnama and
affidavit-in-reply and ad-interim relief in terms of Prayer clause (a) of
the Notice of Motion was granted till further orders. The Prayer clause
(a) of the Notice of Motion is usefully quoted as under :-
"(a) Pending the hearing and final disposal of the Suit,
the Defendant, his agents, servants or persons claiming
avk 14/23
S-488-2017.doc
through him be temporarily restrained by an order of this
Hon'ble Court from parting with possession, or creating third
party rights in favour of any third party by any means of
whatsoever nature in respect of Suit Premises i.e. Part of
M/S. HOTEL LAKE SITE GURU VIHAR, admeasuring about
5550 sq.ft from and out of total area of 10,000 sq.ft as
aforesaid along with the licences, permits, orders and
fixtures, fittings, furniture and articles as detailed under
Annexure to the Said Agreement to the Defendant consisting
of Ground floor with (a) Non A.C. Area - 550 sq.fr. (b) Area
A.C. -1100 sq.ft (c) Kitchen - 400 sq.ft (d) office & two store
Rooms - 300 sq.ft situated and lying and being at Survey
No.1, C.T.S. No.8, of Village-Paspoli, Tal. Kurla, Mumbai
Suburban District sitauted at Morarji Nagar, Vihar Lake Road,
Post- NITEE, Powai, Mumbai-400 087."
5. On 6th December 2017, this Court observed that neither
Vakalatnama nor affidavit-in-reply was filed by the Defendant. And
that, as the record indicated that the Defendant was not using the suit
premises, this Court appointed Court Receiver to protect the property
as and by way of ad-interim order with a power to take symbolic
possession of the suit property and with a direction not to dispossess
the occupants of the property till further orders. Accordingly, the Court
Receiver took the symbolic possession of the suit premises on 5 th
January 2018.
6. Thereafter, on 26th March 2019, Defendant remained absent. This
Court directed the Defendant to file written statement or or before 27 th
avk 15/23
S-488-2017.doc
June 2019, failing which the suit against Defendant would be
transferred to the list of undefended suits. Despite specific directions,
Defendant failed to appear and file written statement, and on 28 th
August 2019, the suit against Defendant was transferred to the list of
undefended suits.
7. On On 9th July 2019, again none appeared for the Defendant,
despite service of notice. The record indicates that though writ of
summons was served upon the Defendant and it was duly
acknowledged, the Defendant did not enter appearance and no written
statement was filed. As the Defendant remained absent, an order in
terms of Prayer clause (b) of the Notice of motion was passed and the
Court Receiver was directed to make a report after taking possession of
the suit property in terms of the order. Prayer clause (b) of the Notice
of Motion is usefully quoted as under :-
"(b) Pending the hearing and final disposal of the present
Suit, by an Order of this Hon'ble Court the Court Receiver,
High Court, Bombay may be appointed as Receiver under
Order XL Rule 1 of the Civil Procedure Code in respect of the
Suit premises i.e. Part of M/S. HOTEL LAKE SITE GURU
VIHAR, admeasuring about 5550 sq.ft from and out of total
area of 10,000 sq.ft as aforesaid along with the licences,
permits, orders and fixtures, fittings, furniture and articles as
detailed under Annexure to the Said Agreement to the
Defendant consisting of Ground floor with (a) Non A.C. Area
- 550 sq.fr. (b) Area A.C. -1100 sq.ft (c) Kitchen - 400 sq.ft
avk 16/23
S-488-2017.doc
(d) office & two store Rooms - 300 sq.ft and First Floor
(a)Party Hall - 1200 sq.ft. (b) Terrace area - 2000 sq.ft
situated and lying and being at Survey No.1, C.T.S. No.8 of
Village- Paspoli, Tal. Kurla, Mumbai Suburban District
situated at Morarji Nagar, Vihar Lake Road, Post - NITEE,
Powai, Mumbai-400 087 with further directions to take
possession of the suit premises and further be pleased to
appoint the Plaintiff as Agent of the Court Receiver."
8. Thereafter, the Court Receiver has taken physical possession of
the suit premises on 13th November 2019.
9. On 12th December 2019, this Court observed that though writ of
summons was served on the Defendant on 7 th October 2017, the
Defendant had not filed written statement despite being served with
the writ of summons and at the request of the learned Counsel for the
Plaintiffs, the matter was stood over to 6 th February 2020 to move an
Application for seeking decree. On 22 nd January 2020, an Application
was made by the Plaintiffs seeking an ex-parte decree against the
defendant.
10. On 7th December 2022, Interim Application was taken out to
bring the legal heirs of the Defendant on record. On 15 th February
2023, the Interim Application was allowed thereby condoning the delay
of 801 days in filing the Interim Application and permitting the
Plaintiffs to bring on record the legal heirs of the deceased Defendant.
avk 17/23
S-488-2017.doc
11. Learned Counsel for the Plaintiffs has tendered across the bar,
Affidavit of Evidence in lieu of Examination in Chief dated 11 th March,
2020 of Mr. Dilip Shankar Borhade, being Plaintiff No.1 alongwith
Affidavit of documents of Plaintiff No.1, with respect to 13 documents
which form part of the Compilation of Documents dated 11 th March,
2020, relied upon by the Plaintiff No.1, containing Photocopy of
Agreement of Leave & License dated 15 th October, 2013, Office copy of
legal notice dated 11th February, 2014 alongwith returned packet and
postal slips, Office copy of legal notice dated 7 th March, 2014, Original
Reply dated 18th March, 2014, Copy of minutes dated 30th March, 2014,
Rejoinder dated 23rd June, 2014 alongwith photocopy of RPAD
acknowledgment, Photocopy of Notice dated 12 th December, 2014,
Office Copy of Reply dated 6th January, 2015 alongwith RPAD
acknowledgement, Original letter dated 15 th December, 2014,
Photocopies of complaints dated 8 th December, 2014 & 16th December,
2014, Photocopies of Public News dated 9 th December, 2014, Copy of
Typed statement of accounts, Original General power of Attorney dated
31st March, 2015.
avk 18/23
S-488-2017.doc
12. I have heard the learned Counsel for the Plaintiffs, perused the
copy of the Plaint, Affidavit of Evidence in lieu of Examination,
Affidavit of documents and the compilation of documents.
13. The Affidavit of evidence reiterates what is stated in the plaint.
14. It is clear from the aforesaid that the Defendant neither paid the
amount of security deposit nor paid the compensation as aforesaid to
the Plaintiffs in terms of the said Agreement dated 15 th October 2013.
As such, the Defendant has held himself liable for eviction from the suit
premises and also for payment of arrears of compensation/dues
payable to the Plaintiffs in terms of Statement of Accounts prepared by
the Plaintiffs.
15. Since the Defendant has not appeared in the matter, despite
service, the submission of the Plaintiffs that the Defendant is enjoying
the suit premises carrying on the business under the licenses standing
on the name of the Plaintiffs without making any payment, has gone
unchallenged.
avk 19/23
S-488-2017.doc
16. In the above facts and circumstances, the Plaintiffs are entitled to
a decree of eviction against the Defendant to vacate and handover
quiet, vacant and peaceful possession of the suit premises along with
the furniture, fixtures and fittings to the Plaintiffs on the grounds
mentioned hereinabove under the provisions of Section 41 of the
Presidency Small Causes Courts Act, 1882. Further, the Plaintiffs are
entitled to recover arrears of monthly compensation from 15 th October
2013 till 31st March 2015 and other legal dues, total amounting to
Rs.32,20,605/- from the Defendant. Also, the Plaintiffs are entitled for
direction against the Defendant to continue to pay an amount of
Rs.2,00,000/- per month as and by way of monthly compensation after
filing of the suit till handing over actual and physical possession of the
suit premises to the Plaintiffs.
17. Although an issue may arise in view of Section 55 of the
Maharashtra Rent Control Act, 1999, which requires the Agreement for
leave and licence entered into between the licensor and the licensee to
be compulsorily registered under the Registration Act, 1908, which has
not been registered, however, a decision of this Court in the case of
Amit B. Dalal vs. Rajesh K. Doctor 1 where it has been clearly observed
1 (2010) 5 AIR Bom R 683
avk 20/23
S-488-2017.doc
that an Agreement of Leave and License does not require compulsory
registration under the Registration Act, 1908 becomes relevant.
Paragraph 20 of the said order is relevant and is usefully quoted as
under :
"20. There is one more important aspect of the matter.
An agreement of leave and licence does not require
registration under the Registration Act, 1908 (hereinafter
referred to as the said Act of 1908). Section 49 of the said
Act of 1908 provides that no document which requires
registration either under section 17 or under the Transfer of
Property Act, 1882 can be received as evidence of any
transaction affecting such property unless it has been
registered. Thus section 49 of the said Act is applicable only
to the documents which require registration either under
section 17 of the said Act of 1908 or under the Transfer of
Property Act, 1882 . Under the said Act, while providing
for consequences of non registration, the legislature has not
chosen to provide for drastic consequences as provided under
section 49 of the said Act of 1908. Therefore, non
registration of a document required to be registered under
section 55 of the said Act attracts limited consequences
provided under sub section 2 thereof apart from prosecution
under sub section 3. An unregistered document which
requires registration under section 55 of the said Act can be
read in evidence provided the same is proved and the same is
otherwise admissible in evidence. Section 49 of the said Act
of 1908 will not be applicable to such document which is
required to be registered under section 55 of the said Act.
Therefore, a document which requires registration under
section 55 of the said Act does not become an invalid
document. The presumption under clause (b) of explanation
to section 24 of the said Act is applicable only when an
application for eviction is filed relating to the premises given
on licence for residence. In other proceedings, the said
presumption may not apply. Therefore, notwithstanding the
non registration of an agreement in writing of leave and
licence in respect of the premises given for residential use ,
avk 21/23
S-488-2017.doc
when an application under section 24 is made, the clause (b)
will apply to such agreement and it will not be open for the
licensee to lead any evidence contrary to the terms and
conditions provided in the said agreement."
18. Learned Counsel for the Plaintiffs has tendered across the bar
copy of the affidavit of service dated 24 th August 2023 indicating
service of the copy of the amended plaint, affidavit of examination-in-
chief, compilation of documents and affidavit of documents along with
notice dated 31st July 2023 intimating the Defendants that the suit will
appear for ex-parte decree, which contains acknowledgment of delivery
of the packet to the Defendants on 13 th August 2023. The said affidavit
of service has been filed online. The Defendants have, despite service,
failed and neglected to enter appearance and the Plaintiffs are entitled
to ex-parte decree and judgment in the suit as an undefended suit.
19. Ergo, since the Defendants have failed to appear despite service,
the contentions raised on behalf of the Plaintiffs have gone
unchallenged and the Plaintiffs have become entitled to a decree. I,
therefore, pass the following order :
ORDER
(i) Suit is decreed in terms of prayer clauses (a) and (b).
S-488-2017.doc
(ii) The Court Receiver is directed to hand over the possession of the
suit property to the Plaintiffs within a peroid of two weeks, after
which the Court Receiver to stand discharged without passing
accounts, subject to payment of costs, charges and expenses of
the Court Receiver.
(iii) The Plaintiffs may file an appropriate application as far as mesne
profit is concerned.
(iv) The compilation of original documents be returned to the
Plaintiffs upon being substituted with a set of authenticated
photocopies.
(v) Refund of Court fees as per Rules.
(vi) Drawn up decree is dispensed with.
(vii) Pending Interim Application to accordingly stand disposed.
(ABHAY AHUJA, J.)
Signed by: Mrs.Arti V. Khatate
Designation: PS To Honourable Judge
Date: 28/11/2023 18:21:19
