Bombay High Court
Shri. Ganeshprasad Hiraprasad Shukla vs Shri. Krishnkumar Ramakhal Shukla on 9 August, 2024
2024:BHC-AS:32703
Megha 11_wp_6777_2017.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6777 OF 2017
Ganeshprasad Hiraprasad Shukla ...Petitioner
V/s.
Krishnkumar Ramkhal Shukla ...Respondent
____________________________________________________________
Mr. Rajesh Kanojia with Ms Bushra Sayed and Ms Trupti Gaikar i/b. M/s. V.
Shukla and Associates for the Petitioner.
Ms Poonam Madhwani with Ms Sneha Kudgaonkar for the Respondent.
CORAM : SANDEEP V. MARNE, J.
Dated : 9 August 2024.
P.C. :
1) This Writ Petition is filed challenging the Decree dated 5
September 2014 passed by the Court of Small Causes, Mumbai in L.E. Suit
No.195/238 of 2008 by which the Suit filed by Plaintiff for recovery of
possession of the suit premises from the Petitioner/Defendant in his capacity
as gratuitous licensee has been decreed directing Defendant to handover
possession of the suit premises to the Plaintiff. An enquiry into mesne
MEGHA
SHREEDHAR
PARAB profits under Order XX Rule 12 of the Code of Civil Procedure, 1908 is also
MEGHA directed to be held. The decree of the learned Judge of the Court of the
Small Causes has been confirmed by the Appellate Bench vide judgment and
order dated 25 April 2017.
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2) This Court has admitted the Petition by order dated 23 August
2017 by directing Petitioner to deposit compensation @ Rs.5000/- per
month w.e.f. 1 April 2017.
3) I have heard Mr. Kanojia, the learned counsel appearing for the
Petitioner/Defendant and Ms Madhwani, the learned counsel appearing for
the Respondent/Plaintiff.
4) After having considered the submissions canvassed by the
learned counsel appearing for the parties, it is seen that L.E. Suit
No.195/238 of 2008 was instituted by the Plaintiff contending that
Defendant's father -Hariprasad Shukla, who is also real brother of Plaintiff's
father was working as a watchman in M/s. Modern Mills Ltd. and during the
course of his service, he was allowed to reside alongwith his family in the suit
premises. That said Hariprasad Shukla retired in the year 1993 and shifted
to his native place at Jafrapur, Uttar Pradesh. The Plaintiff further pleaded
that he himself joined the services of M/s. Moden Mills Ltd. as a mill worker
and continued to work till the year 1995. Plaintiff further pleaded that in
the year 1994 he approached the land owner -M/s. Modern Mills Ltd. for
allotment of residential place and accordingly the suit premises were allotted
to the Plaintiff by said M/s. Modern Mills Ltd. w.e.f. 1 November 1994 on
monthly rent of Rs.20/-. This is how Plaintiff claims tenancy in respect of
the suit premises directly through M/s. Modern Mills. Plaintiff further
pleaded in the plaint that Defendant was working as a salesman at Fashion
Market at Mumbai and approached the Plaintiff for permitting him to reside
in the suit premises alongwith the Plaintiff. That the Defendant was
permitted to occupy the suit premises on humanitarian ground. On these
broad pleadings L.E. Suit No.195/238 of 2008 was filed by Plaintiff
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describing the Defendant as gratuitous licensee and seeking recovery of
possession of the suit premises.
5) The main submission of Mr. Kanojia is that the Defendant is
the original tenant and Plaintiff is in fact the gratuitous licensee of the
Defendant. This submission is essentially raised on account of initial
occupation of the suit premises by Defendant's father while working as a
watchman with M/s. Modern Mills Ltd. This defence of the Defendant has
been considered by the Court of Small Causes. However, it has been proved
that in 1994 Plaintiff came to be inducted in the suit premises by the land
owner of M/s. Modern Mills w.e.f. 1 November 1994 on rent @ of Rs.20/-.
What is also relevant to be noted is the fact that Defendant himself has made
multiple attempts for the purpose of proving his tenancy in respect of the
suit premises. So far he has filed two suits bearing Nos.1719 of 2003 and
1763 of 2014 to seek a declaration of his tenancy in respect of the suit
premises. Both the Suits have been dismissed and the decrees passed therein
have attained finality. Thus, Defendant can no longer contend in a Suit filed
by Plaintiff for his eviction as a gratuitous licensee that he is the real tenant.
6) Mr. Kanojia has strenuously relied upon written statement filed
by land owner M/s. Modern Mills in R.A.D. Suit No.1719 of 2003 in order
to demonstrate that alleged claim of tenancy of the Plaintiff is not at all
accepted by the landlord. He would accordingly submit that since the
tenancy claim of the Plaintiff itself is questioned by the land owner, Plaintiff
cannot term Defendant as gratuitous licensee and seek his ejectment from
the suit premises. Firstly, the written statement filed by M/s. Modern Mills
in R.A.D. Suit No.1719 of 2003 filed by Defendant to declare himself as
tenant, cannot be read while deciding correctness of the decrees passed in
L.E. Suit No.195/238 of 2008. Secondly, statement made by one Defendant
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against another in a Suit which has ultimately been dismissed cannot be used
for the purpose of drawal of an inference that Plaintiff is not the tenant in
respect of the suit premises. For the purpose of deciding the present Suit a
detailed inquiry into the title of the Plaintiff is not even required. It is also a
matter of fact that after filing the said written statement by M/s. Modern
Mills in the year 2004, it has not instituted any proceedings for ejectment of
the Plaintiff. In that view of the matter, Defendant cannot be permitted to
question the title of the Plaintiff in respect of the suit premises while
defending the action for ejectment in his capacity as a gratuitous licensee.
7) Mr. Kanojia has also relied upon minutes of meeting of Board
For Industrial and Financial Reconstruction (BIFR) dated 20 December
1993, under which the State Government has formulated a scheme for
rehabilitation of tenants in the mill land. He would submit that the
Maharashtra Housing and Area Development Authority (MHADA) has
declared Defendant and his father to be eligible tenant in respect of the suit
premises. In my view Petitioner cannot be permitted to rely upon those
documents as the same were never produced before the Trial or the
Appellate Court. Secondly, nothing prevented Defendant from relying
upon minutes of BIFR of meeting dated 20 December 1993 when his
previously instituted two declaratory Suits were decided. Therefore, while
deciding the Suit for his ejectment in capacity as gratuitous licensee
Defendant cannot now be permitted to set up a claim for his own tenancy.
8) It must also be observed that the Defendant has been raising
contradictory claims in various proceedings. Firstly, in S.C. Suit No.344 of
1996 instituted by him for seeking protection against ejectment without
following due process of law he took a stand that he was residing with the
Plaintiff as a member of his family. However, in the written statement,
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Defendant claims that he was a joint tenant in respect of the suit premises.
The Defendant also claims that he is the real tenant and the Plaintiff is a
gratuitous licensee. This is how mutually destructive pleas are raised by the
Defendant in various proceedings.
9) After considering the overall conspectus of the case, I am of the
view that the Defendant has failed to prove the claim of his tenancy in
R.A.D. Suit No.1719 of 2003 and 1763 of 2014 and the decrees passed in
those suits have attained finality. There is some semblance of document on
record to suggest that Plaintiff was inducted in the suit premises by M/s.
Modern Mills by use of the words 'monthly rent' on 1 November 1994.
Said M/s. Modern Mills has not instituted any proceedings against the
Plaintiff terming him to be a trespasser. Considering the limited remit of
inquiry in an ejectment Suit under Section 41 of the Presidency Small Cause
Courts Act, 1882 against a gratuitous licensee, a detailed inquiry into a title
of the Plaintiff is not really necessary. Inquiry into Defendant's claim of
tenancy is independently made in declaratory suits and the claim has been
repelled. In my view therefore, no case is made out for interference in the
concurrent findings recorded by the Small Causes Court and its Appellate
Bench.
10) Writ Petition must fail. It is accordingly dismissed without any
order as to costs. Rule is discharged. Plaintiff is permitted to withdraw
various amounts deposited in the Small Causes Court as well as in this Court
alongwith accrued interest.
11) Considering the circumstances of the case Petitioner is granted
period of eight weeks to vacate the suit premises.
[SANDEEP V. MARNE, J.]
9 August 2024
