Bombay High Court
K. Ananth Kumar Nadar, S/O Kottala Muthu ... vs S. Gopinathan (Dec.) Thr. Lrs. Mr. Adnan ... on 29 November, 2023
2023:BHC-AS:35365
903-CRA-561-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 561 OF 2023
Shri K. Ananth Kumar Nadar,
S/o Kottala Muthu Nadar,
Age about : 41 years,
Residing at 240, Main Road, Sawyer Puram,
Post Tuttukudi, Tamil Nadu - 658 241
Aged about 41 years, Occu: Business,
Indian Inhabitant, Permanent R/o.
Tamil Nadu & Presently R/o. Room No.37,
Panchsheel Nagar, Vijay Nagar Pipe Line,
Andheri(E), Mumbai - 400 059 ...Applicant
(Original Defendant)
Versus
1. S. Gopinathan,
Indian Inhabitant of Mumbai,
Aged about 64 years, Occu: Service,
R/o. L/T-6/2, Vijay Nagar,
Marol Maroshi Road, Marol, Andheri(E),
Mumbai - 400 059
(Deleted since Deceased) ...Respondent
(Original Plaintiff)
1(a). Mr. Adnan Gopinathan,
Aged about 45 years, Occu: Service,
Digitally signed
having address at Indraprasth,
by SUNNY
SUNNY ANKUSHRAO
ANKUSHRAO THOTE
THOTE Date:
Karinganoor, Kollam District,
2023.11.30
10:36:38 +0530
Kerala State - 691 516 (India) ...Respondent
(Original Plaintiff)
____________________________________
Mr. Sripad P. Ramdasi for the Applicant.
None for Respondents.
____________________________________
CORAM : RAJESH S. PATIL, J.
RESERVED ON : 19 OCTOBER, 2023
PRONOUNCED ON : 29 NOVEMBER, 2023
1
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903-CRA-561-2023.doc
JUDGMENT :
1. This Civil Revision Application is filed under Section 115
of the Code of Civil Procedure (for short 'CPC"), challenging the
Judgment and Order dated 6 May, 2016, passed by Small Causes
Court, Bombay in L.E.& C. Suit No.62/101 of 2017, confirmed by
Appellate Bench of Court of Small Causes by its Judgment and
Order dated 4 September, 2023 passed by the in Appeal No.25 of
2017.
FACTS :
2. The Applicant is the Original licensee of land with the
structure standing thereon bearing C.T.S. No.93 (part) of Village
Marol, Taluka Andheri (East), Mumbai - 400 059, admeasuring
880 sq. feet or thereabout (for short 'Suit Premises'), pursuant a
Leave and Licence Agreement dated 19 March, 2005. The
Respondents are the Legal heirs of one Mr. S. Gopinathan who was
the licensor of the Suit Premises.
3. By a registered Leave and Licence Agreement dated 19
March, 2005, the Suit Premises was given on licence basis for a
period of 22 months w.e.f. 1 May, 2005. The Applicant was
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supposed to pay a sum of Rs.1,500/- per month as licence fee for
commercial use of the Suit Premises.
4. It is a case of the licensor that the licensee was regular in
paying the licence fee till 28 February, 2007. On the expiry of the
licence period, the licensee filed to vacate the Suit Premises,
therefore, the licensor filed a Suit bearing No. L.E. & C. No.62/101
of 2007, before Court of Small Causes at Bombay under Section 41
of the Presidency Small Causes Court Act, against the licensee,
seeking therein possession of the Suit Premises and also to pay the
plaintiff a sum of Rs.12,000/- being arrears of
compensation/damages from 1 March, 2007 till 31 October, 2007,
and further an enquiry under the provisions of Order XX, Rule 12
of CPC for mesne profits, and also during the pendency of the Suit
the defendant be ordered to deposit a sum of Rs.12,000/- per
month, till the date of recovering vacant possession.
5. The licensee appeared in the eviction proceedings and
filed his Written Statement, thereby denying the contention that
the licensor is the owner of the Suit Premises and further the
premises falls under slums, therefore, a permission has
contemplated under Section 22 of the Maharashtra Slum Areas
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(Improvement, Clearance And Redevelopment) Act, 1971 was not
taken and therefore, the Suit was liable to be dismissed.
6. On behalf of the Plaintiff, the Original licensor entered
the witness box and gave his evidence. On behalf of the defendant
the licensee (Applicant herein) entered the witness box to lead
evidence on behalf of the defendant.
7. After hearing both the parties and taking into
consideration the evidence on record, the Single Judge of the
Court of Small Causes, by his Judgment and Order dated 6 May,
2016, decreed the Suit, thereby directing the defendant to hand
over the vacant and peaceful possession of the Suit Premises to the
Plaintiff/Licensor, within two months, and further held that
Plaintiff is entitled to recover arrears of compensation at the rate
of Rs.1,500/- per month for the period from 1 March, 2007 to 31
October, 2007. And further held that Plaintiff is entitled to make
an enquiry into the mesne profits.
8. Being dissatisfied with the Judgment and Order dated 6
May, 2016 passed by the Single Judge of the Court of Small
Causes, the licensee/Applicant herein filed an Appeal bearing
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No.25 of 2017 before the Appellate Bench of the Court of Small
Causes at Bombay.
9. Division Bench of Small Causes after hearing the parties,
by their Judgment and Order dated 4 September, 2023, dismissed
the Appeal of the licensee/Applicant herein, and confirmed the
Judgment and Order dated 6 May, 2016, passed by the Single
Judge of the court of Small Causes.
10. The Applicant herein, who is the licensee and Original
defendant, in the Eviction Suit, has filed the present Civil Revision
Application, challenging the concurrent findings of both the Courts
of Small Causes at Bombay.
SUBMISSIONS :
11. Mr. Sripad P. Ramdasi, made his submissions on behalf of
the Applicant/licensee.
11.1. Mr. Ramdasi submitted that there is a manifest error on
the part of both the Courts of Small Causes, as they have not
considered the legal provisions in proper perspective.
11.2. Mr. Ramdasi further submitted that both the Courts lost
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sight to the fact that licensee had already handed over possession
of the Suit Premises to the licensor, therefore, there could not be
any Order of vacating the Suit Premises and paying the
compensation for the Suit Premises.
11.3. Mr. Ramdasi further submitted that in fact the Applicant
was entitled to receive back the rent whatever was deposited by
the licensee in the Court. Mr. Ramdasi submitted that the
description of the Suit Property is not proper in the plaint as well
as in the evidence, therefore, the Eviction Suit should have been
dismissed on these grounds alone. Mr. Ramdasi further submitted
that the licensee was not in occupation of the Suit Premises
therefore, the ingredients of Section 41 of the Presidency Small
Causes Court Act is not attributed.
11.4. Mr. Ramdasi submitted that licensor was not the owner of
the Suit Premises on the date of the filing of the Eviction Suit.
11.5. Mr. Ramdasi submitted that the brother of the licensee,
had in fact entered into an agreement of purchase the Suit
Premises from the Original licensor, and part payment of the said
transaction was already received by the licensor. Therefore,
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Eviction Suit by a person who had already sold the Suit Premises,
was not maintainable. Mr. Ramdasi submitted that therefore, the
present Civil Revision Application should be admitted and stay
should be granted to the execution of the impugned Judgment and
Order.
ANALYSIS :
12. It is an admitted fact that the Applicant was a licensee for
a period of 22 months, pursuant a Leave and Licence Agreement
dated 19 March, 2005, on monthly compensation of a Rs.1,500/-
with security deposit of Rs.25,000/-.
13. Admittedly, the licence period expired on 28 February,
2007. It is a case of the Applicant that he had vacated the Suit
Premises and handed over the possession to the Respondent
licensor on June, 2005. It is further case of the Applicant that his
elder brother had entered into a Purchase Agreement of the Suit
Premises with the licensor. And pursuant to the said transaction
part payment was already made to the licensor.
14. Both the Courts of Small Causes have held that the
Applicant was not able to prove that he had already handed over
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possession of the Suit Premises to the licensor. It is also held by
both the Courts that as regards ownership of the Suit Premises is
concerned, the Applicant was not able to prove that the licensor is
not the owner of the Suit Premises. As regards the case of the
Applicant that the elder brother had purchased the Suit Premises
from the licensee, no such Sale Deed has been produced on record
by the Applicant to prove his case. Even, while arguing the Civil
Revision Application, the Applicant was not able to show any
document to prove that the licensor was not the owner of the Suit
Premises.
15. It is not the case of the Applicant that the Suit for specific
performance has been filed by the brother of the Applicant against
the licensor. In a Suit filed under Section 41 of the Presidency
Small Causes Court Act, once it is admitted that there was a
registered Leave and Licence Agreement and the licence period
had expired, the licensee has to vacate the Suit Premises and hand
over the possession to the licensor. Section 41 of Presidency Small
Causes Court Act, contemplates Suits between licensor and
licensee, relating to recovery of possession and licence fee. It does
not mention about ownership of licenced premises. The case of the
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Applicant that he has already handed over possession, has not
been proved by the Applicant, by bringing on record any kind of
document to show that possession has been handed over. In fact,
in evidence, the Applicant admitted that he is assisting his brother
in the business of selling vegetables from the Suit Premises. This
statement of the Applicant in evidence, proves the fact that the
Applicant is in possession of the Suit Premises. The Applicant was
also not able to prove that the Suit Premises falls under notified
slums.
16. Therefore, I find no fault in the concurrent findings
recorded by the Small Causes Court, and there is no reason shown
by the Applicant to interfere with the concurrent findings.
Therefore, no case is made out by the Applicant, hence, the Civil
Revision Application is dismissed. No costs.
(RAJESH S. PATIL, J.)
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